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"The condition upon which God hath given liberty to man is eternal vigilance; which condition if he break, servitude is at once the consequence of his crime and the punishment of his guilt." - John Philpot Curran


No Freedom of Association in America

From Reuters:
    A roommate-finding site cannot require users to disclose their sexual orientation, a U.S. appeals court ruled on Thursday, in the latest skirmish over whether anti-discrimination rules apply to the Web.

    The U.S. 9th Circuit Court of Appeals said Roommates.com, which obliges users to list their sexual orientation, was different than Internet sites where people can volunteer or withhold personal information.

    To inquire electronically about sexual orientation would not be different from asking people in person or by telephone if they were black or Jewish before conducting business, the panel said in an 8-3 ruling that partly overturns a lower federal court decision.

    "If such screening is prohibited when practiced in person or by telephone, we see no reason why Congress would have wanted to make it lawful to profit from it online," 9th Circuit chief judge Alex Kozinski wrote. "Not only does Roommate ask these questions, Roommate makes answering the discriminatory questions a condition of doing business."
Only in America can a court find unlawful discrimination in a private, voluntary transaction between consenting adults.

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Blogger BadTux said...

This is interesting indeed because we're talking about a truly personal experience here -- living with someone in the same household. Whether the someone you're with is gay or not certainly affects whether you'd be personally compatible with that person as a room-mate. I can see where a real girly-girl would get really uncomfortable with a really butch room-mate who keeps coming on to her (or you can flip the gender for the same deal). Lesbians probably would be more comfortable rooming with other lesbians, etc.

On the other hand, your reasoning is the same reasoning that was used against the 1965 Civil Rights Act, which outlawed discrimination in housing. Should a racist bigot apartment home owner be required to rent to a black tenant? What right does government have to dictate to a property owner regarding who she can or cannot rent a property to? The difference, I think, is that it makes no material difference to a property owner what color her tenant is. What matters is the character of that tenant's soul -- whether the tenant pays rent on time, doesn't trash the place, doesn't hold wild parties, etc. Color is irrelevant there, and allowing discrimination based on color results in friction in the operation of the free market (i.e., business decisions being made on the basis of irrelevant facts) and thus economic harm. Thus why Big Business in the end came in on the side of the Civil Rights Act -- racial discrimination (as vs. discrimination against people for rational reasons such as, e.g., they're a deadbeat or criminal) is simply bad for business. Sexual preference probably should be included in that list of forbidden "exclusion" classes, since once again you're adding friction into the free market system that isn't relevant to the landlord's bottom line (indeed, a nicely gay couple can make the apartment complex look decidedly cheery and add significant value to the complex -- it's no fluke that "Queer Eye for the Straight Guy" was a runaway success as a television series). But sexual preference, while irrelevant to the bottom line of a potential landlord, is decidedly relevant to the happiness of a roommate. I don't think I'd be happy with a gay roommate, even if he didn't make a sexual come-on to me. There'd always be that sexual vibe thing going on that would be decidedly uncomfortable...

BTW, the "only in America" bit was utter nonsense. In several countries of Europe as well as in Canada courts have made similar rulings. On the other hand, sexual preference is written into their laws as a "protected class" in those countries, so they have more legal basis to do so...

4/4/08, 3:21 PM  
Blogger Lee Shelton IV said...

Yeah, I admit it. The "only in America" bit was tongue-in-cheek. This is the "Land of the Free," after all.

As to your other point, I think the same reasoning should apply to race, religion, gender, etc. I mean, we're talking about private businesses here, not government agencies. Since every individual is considered equal under the law, the state cannot discriminate on those grounds.

But if we allow the state to decide what's best for the private sector, where does it end? Should the elderly Christian couple down the street advertising an apartment for rent be forced to rent it to a gay couple? Who is the government to tell individuals and businesses what does or does not affect their "bottom line"?

The difference is that when it comes to dealing with the private sector, there are always other options. If you don't like the values or practices of a particular business, you can move on. You are also free to boycott, protest, and use any number of other legal methods to either compel the owner to change his policies or drive him out of business.

4/4/08, 5:18 PM  
Blogger BadTux said...

Well, this is also the land of the Holy Dollar, where the green is what the majority worship. Racism, sexism, etc. are Bad For Bidness because they result in business decisions made for reasons that have nothing to do with dollars and cents. Thus the support by not only civil rights groups but business groups for laws outlawing discrimination on the basis of race and gender -- it's Good for Business by reducing the friction in the free market system.

As for the question of a Christian lady renting to a gay couple -- I don't ask my tenants what their gender affiliation is, and they don't tell me, because it has nothing to do with dollars and cents. I'm more concerned with a) do they pay their rent on time, b) do they keep the place clean and tidy and don't destroy the place, and c) are they quiet or do they hold loud parties all the time? Those are what I care about as a landlord, and the personal life of my tenants... well, that's none of my business. I once had my property manager call me all adither because a mixed-race couple wanted to rent one of my properties. I asked, "do they pay the rent on time?" "Uh, yeah." "Does either of them have a criminal record?" "Uh, no." "Does either of them have a reputation for trashing properties or behaving rowdy or anything?" "Uh, no, she's an invalid and he's a polite farmer's boy." "Rent it to them." "But it's not *right* to marry someone of another race!" "That's not our business. Rent it to them."

As long as it don't hurt me and mine, I don't see what business of mine it is. If I happened to have a gay relative, it would hurt me or mine if folks refused to rent to them just because they were gay, because they'd end up paying higher rents than in a free market (since they'd have a smaller pool of homes to choose from). The question of whose rights are more important -- my family's or a bigot's -- is one that was eventually settled by the dollars and cents tiebreaker that led to the Civil Rights Act of 1965, which assured a free market in the housing industry (at least for women and people of color). A free market. It'd be a good idea, wouldn't it?

-- Badtux the Free Market Penguin

4/4/08, 6:41 PM  
Blogger Ryan S. said...

That's stupid. One would want to know such a thing, and avoid a situation. Federal housing laws are unconstitutional anyway. It negates freedom of contract, and the ability of that web site to set its own terms of service.

4/10/08, 2:17 AM  

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