Thanks to Judge Alex Kozinski you won’t have to worry about being forced to shack up with the slobby guy, the party girl, the all-night video game nerd, or the quiet but hateful passive aggressive. Neo-conservatives won’t be coerced into sharing their early mornings crammed in a bathroom brushing their teeth with a polite progressive. And Catholics won’t have to hide the television remote from their gay roommate who works at Planned Parenthood.

These were all possibilities because someone at the Fair Housing Council of San Fernando Valley in San Diego decided to sue Roommate.com in federal court, alleging that the website’s questions requiring disclosure of sex, sexual orientation, and family status that steers potential roommates to each other on the Roommate.com website, violates federal and state housing discrimination laws. Basically, the Fair Housing Council felt that people should not be able to discriminatly choose their roommate.

That seems fair. Because we all know people shouldn’t be deciding who they have to live with! 

Judge Kozinski started his opinion for the Ninth Circuit by describing what is at stake in the case:

There’s no place like home. In the privacy of your own home, you can take off your coat, kick off your shoes, let your guard down and be completely yourself. While we usually share our homes only with friends and family, sometimes we need to take in a stranger to help pay the rent. When that happens, can the government limit whom we choose? Specifically, do the anti-discrimination provisions of the Fair Housing Act (“FHA”) extend to the selection of roommates?

So the Ninth Circuit in Fair Housing Council v. Roommate.com, No. 09-55969, had to decide whether the federal housing discrimination statute applies to websites that help roommates find each other. After surveying the statutory language, the court came to the conclusion that it was ambiguous. The court held that if it applied the housing discrimination statute to how people choose roommates, it would raise serious constitutional questions about freedom of association. That the court was not willing to do.

Judge Kozinski noted that freedom of association includes the right to not associate. He then explained why that right was implicated in this case:

Because of a roommate’s unfettered access to the home, choosing a roommate implicates significant privacy and safety considerations. The home is the center of our private lives. Roommates note our comings and goings, observe whom we bring back at night, hear what songs we sing in the shower, see us in various stages of undress and learn intimate details most of us prefer to keep private. Roommates also have access to our physical belongings and to our person. As the Supreme Court recognized, “

[w]e are at our most vulnerable when we are asleep because we cannot monitor our own safety or the security of our belongings.” Minnesota v. Olson, 495 U.S. 91, 99 (1990). Taking on a roommate means giving him full access to the space where we are most vulnerable.

Equally important, we are fully exposed to a roommate’s belongings, activities, habits, proclivities and way of life. This could include matter we find offensive (pornography, religious materials, political propaganda); dangerous (tobacco, drugs, firearms); annoying (jazz, perfume, frequent overnight visitors, furry pets); habits that are incompatible with our lifestyle (early risers, messy cooks, bathroom hogs, clothing borrowers). When you invite others to share your living quarters, you risk becoming a suspect in whatever illegal activities they engage in.

You got to love Judge Kozinski. Only he could hand down an important First Amendment ruling while at the same time breaking down the social mores of living together. While including a dig on jazz music no less!

This opinion seems destined to make the newest edition of some casebook.