Laws Against Advertising Intent to Discriminate: Who Do They Help?
Eugene Volokh wonders about housing discrimination laws, and laws that restrict stating preferences in housing ads:
Both under California law and under federal law, it's illegal to tell prospective roomates about one's roommate preference, even when it's legal to actually discriminate based on that preference…..
…..the advertising ban substantially burdens the freedom of intimate association. Though the law doesn't ban the exercise of the right to choose one's roomate as such, it does ban a very important tool through which one can exercise this right, which is advertising. If the lesbian pagan wants to find another lesbian pagan, she'll have a hard time doing that if she has to waste time sorting through dozens of applicants who don't qualify. What's more, she presumably can't even ask them about their sexual orientation or religion, since that itself might be seem as expressing a "discriminatory statement."…..
It's also not clear that the law is doing the discriminated-against roommates any great favor. If people won't rent to me because they're looking for a black or Hispanic or Asian cotenant, I'd rather know that up front, in the ad itself, rather than spending my time doing something that, unbeknownst to me, is entirely futile (and in fact quite lawfully futile, so long as the tenant says nothing to me about her real criteria and her reasons for rejecting me).
