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Plaintiffs mischaracterize defendant as engaging in the “rental of rooms”
(RB 46), as if such rooms were divorced from the individuals living in them.
The roommate relationship is defined by both the sharing of expenses
and deference for the other person’s feelings and “space,” and this is shown in
the same daily behaviors we expect to see among family members – cleanliness
in the kitchen and bathrooms, respect for times of sleep, and respect for
personal property and private places. It’s a question of “getting along” – not
just paying money to a stranger or employer for four walls, a ceiling and a floor.
Indeed, plaintiffs’ citation to state statutes regulating landlord-tenant
relationships defeats their own argument.29
Roommate relationships do not
Plaintiffs’ reference to “pervasive government regulation” also misses
the mark because it ignores the fact that families living in rental housing owned
by a landlord are subject to regulations but still enjoy the right of intimate
association within the home. Cf. RB 49. Also, the landlord-tenant laws in the
California Civil Code – which makes no mention of “roommates,” let alone
depend on contracts and statutes; as one commentator put it: “[C]ompatability is
particularly important to roommates as their conflicts are typically resolved
through discussion and compromise.”30
As the Supreme Court made clear, the right of intimate association
includes the right to exclude. Simply put, adults may select other adults for
personal relationships without government interference. “[F]reedom of
association receives protection as a fundamental element of personal liberty.”
Roberts v. U.S. Jaycees, 468 U.S. 609, 618 (1984).31
Such relationships involve
the “distinctively personal aspects of one’s life.” Id. at 620. Courts are
required to consider “factors such as size, purpose, selectivity, and whether
“roomers,” as asserted by plaintiffs – do not control the relationship of
individuals within a common household, anyway. They apply to persons,
“however denominated,” “who hire dwelling units.” Cal. Civ. Code § 1940(a).
A “dwelling unit” is a structure or a part of a structure that is used as a “home,
residence, or sleeping place” by one person maintaining a household “or by two
or more persons who maintain a common household.” Id. § 1940(c).
Christine A. Kolosov, “Fair Housing Laws and the Constitutional
Rights of Roommate Seekers,” 4 MODERN AM. (Special Issue) 3 (2008),
available at http://www.wcl.american.edu/modernamerican/documents/
See id. at 5 (“[L]iberty and autonomy’ mean little if individuals are
powerless to decide with whom to create intimate relationships.”).
others are excluded from critical aspects of the relationship.” Bd. of Dirs. of
Rotary Int’l v. Rotary Club, 481 U.S. 537, 546 (1987).32
Plaintiffs’ contention that intimate association “is limited to the family”
is flat-out wrong. The Supreme Court has declared the opposite: “[W]e have
not held that constitutional protection is restricted to relationships among family
members.” Rotary Club, 481 U.S. at 545 (emphasis added). Also, if that is the
rule, why did the Court expend so much effort grappling with the right’s
parameters in Rotary Club and Roberts?
The quasi-familial relationships of roommates are nothing like the facts
in the cases cited by plaintiffs. This Court denied the right to intimate
association in IDK, Inc. v. Clark County, 836 F.2d 1185, 1193 (9th Cir. 1988),
and National Ass’n for Advancement of Psychoanalysis v. Cal. Bd. of
Psychology, 228 F.3d 1043, 1050 (9th Cir. 2000), because they involved arms-
length commercial transactions between escort-client and psychoanalyst-client.
“Absent from the applicable factors is any mention of duration.”
Messerly, supra n. 28, 93 IOWA L. REV. at 1966. Messerly, in arguing that
roommate relationships are intimate associations, notes that “the Supreme Court
has already established marriage as a protected intimate association despite the
fact that a couple may dissolve and create this relationship anew through
divorce and remarriage as the individuals react to changing feelings or
circumstances.” Id. at 1966-67; see also Kenneth L. Karst, “The Freedom of
Intimate Association,” 89 YALE L.J. 624, 632-33 (1980) (discussing the value
of even short-lived relationships).
In a psychoanalyst-client relationship, any “intimacy” is one-sided, professional
ethical rules establish firm doctor-patient boundaries, and the parties spend their
time together in meetings of finite length. Likewise, an escort-client
relationship “possesses few, if any, of the aspects of an intimate association,”
because the escort is determined by the employer and may be involved with a
large number of clients, the relationship does not involve any “activities of
family life,” and a “day, an evening, or even a weekend is [not] sufficient time
to develop deep attachments or commitments.” IDK, 836 F.2d at 1193.33
In contrast, roommates set up a common household. The
roommates.com questionnaire focuses on sharing a home, and it uses personal
facts and preferences to match prospective roommates. (ER-IX:1805-12.) The
very selectivity of defendant’s roommate-matching is both the basis for
plaintiffs’ claim and the irrefutable answer to their assertion that picking a
roommate is not selective enough to qualify as intimate association.
Plaintiffs’ effort to dismiss the precedents in Roommate’s brief involving
private clubs on the ground that they involve “social rather than commercial
Plaintiffs’ selection of quotes from “Additional Comments” proves
the point. Wanted are roommates who are “responsible,” “help each other out if
needed,” “will respect people’s space and belongings,” and “very respectful
towards each other and of each other’s need for privacy.” RB 50-51. These are
not relationships based on merely on an exchange of money for a good or
service – they are relationships of trust and respect.
relationships” (RB 52), ignores the fact that social clubs impose membership
dues, and typically involve such other financial obligations as annual
contributions and fundraising commitments.
Similarly, plaintiffs’ contention that governmental regulation of whether
“unrelated individuals” can live with one another is “subject to mere rational
basis review” is based on zoning cases, including Village of Belle Terre v.
Borass, 416 U.S. 1 (1974). (RB 47.) Whether certain types of residences or
groups of people can be located in a particular area is “quite different from a
law that affirmatively requires an individual to accept a cohabitant.” Kolosov,
supra n.30, at 5; accord Brooke Wright, Note, “Fair Housing and Roommates,”
2009 B.Y.U. L. REV. 1341, 1365-66 (2009) (contrasting restrictions on
roommate advertisements, which can make it impossible to find an appropriate
roommate, with zoning laws, which merely require unrelated individuals to live
in a different neighborhood).34
Finally, plaintiffs’ claim that “there is no connection between
Roommate’s conduct and the ability of users to ultimately pick with whom they
Plaintiffs’ assertion that some people who post on roommates.com do
not live in the homes is another attempt to distract. The district court concluded
in granting summary judgment that the postings are for shared homes. ER-I:79.
Further, any posting for unshared residences is inconsistent with the express
purpose of the site. The CDA prohibits any finding of liability for such
postings. Roommates, 521 F.3d at 1171-72.
live” (RB 53), is wrong: Their whole point is to punish Roommate for
facilitating selectivity in searching for roommates. If plaintiffs prevail, users
would be unable to express preferences, or receive match lists, based on gender
or familial status, imposing a direct and substantial burden on their
D. Even if Considered “Commercial,” Roommate Selection Falls
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