A few weeks ago on our houseboat we had another “Family Night.” I made pancakes in deference to the one’s vegetarianism, inadvertently forgetting about another one’s gluten intolerance. Oops. I remember another gluten-intolerant friend once telling me that he recognized his intolerance one night after he’d eaten a huge bowl of pasta and ended up in a homicidal mood for no good reason. Brilliant. Just the kind of mood you want to risk putting your roommates in…
This was our first “Family Night” with this bunch of roommates. There’s been some turnover as previous people have moved onwards and upwards and new people have come to our boat to take their place. I am very, very grateful that all these people have been really good roommates. Well, there is one asterisk connected to one former one, but otherwise it looks like the nightmarish roommate situation my first year of law school has earned me some better roommate karma, and for that I’m very relieved.
My history with roommates makes me think about the recent appellate ruling in the Roommates.com litigation. Because that decision addressed the liability an Internet bulletin board provider might have for its users’ potentially discriminatory posts, most of the discussion following it focused on that vicarious liability issue. Which was warranted, because in the area of cyberlaw this was indeed a pivotal — and troubling — ruling. But at the same time, it’s also worth contemplating the underlying theory of legal liability, for housing discrimination, Roommates.com might be facing by hosting these allegedly discriminatory posts by questioning whether and to what extent they actually are really truly *illegally* discriminatory.
Federal law basically prohibits housing to be denied to people based on such things as race, religion, family status, etc. And as a general policy matter I think such a prohibition is a good thing. There are few things more important to the well-being of a society than for people to be able to obtain adequate housing. Without it it’s extremely difficult, if not impossible, to earn a living, maintain one’s health, raise a family, contribute to society, etc., and thus it’s extremely important that quality housing not be withheld from people for illegally discriminatory reasons.
But for the same reasons that it’s so important for people to be able to obtain adequate housing, to provide their lives with a stable foundation, when it comes to roommate situations, it may be just as necessary not to force people to live with those they don’t want, even if the only reason they don’t want to live with them is because of some ordinarily wrongful distinction, like race. After all, let’s face it: lamentable though it may be, forcing some xenophobe to live with some racial minority is not going to go well for anyone.
The point is that with a roommate situation there is more going on than just a straightforward property transaction. A shared housing situation basically creates a familial situation, and one’s First Amendment rights of association should enable a roommate-seeking poster from being as arbitrary or discriminatory as they want. It’s just too intimate a relationship to externally regulate.
Which is not to say that on our boat we’re joined at the hip or anything. We’re four separate adults living four separate lives. But at the same time, it’s nice not to feel completely isolated and that if ever we needed it we’d have some built-in support.
I also think it’s interesting to live with this particular bunch of people, people that through my ordinary life situation I might not otherwise have gotten to know. I am, for instance, the only lawyer. Another is an artist, one sells construction equipment, and one is a firefighter. Or, if you prefer, one represents air, one earth, one fire, and me, with my swimming lessons, water. We’re the perfect Aristotelian household. And granted we all came together through happenstance, I don’t think we’d be discriminating against a federally protected class if we’d actively solicited for new roommates based on their elemental representation…