Gay Community Plans May Violate Fair Housing

Associated Press reported last week that gay activists in Spokane, Wash., "are planning to create a neighborhood of gay-oriented homes, businesses and nightlife -- a development religious conservatives contend would clash with Spokane's family-centered culture." While the activists may want to celebrate their uniqueness and pride, setting up a community to specifically feature one class of homeowners over another, may violate the Fair Housing Act.

Title VIII of the Civil Rights Act of 1968 (Fair Housing Act), "prohibits discrimination in the sale, rental, and financing of dwellings, and in other housing-related transactions, based on race, color, national origin, religion, sex, familial status (including children under the age of 18 living with parents of legal custodians, pregnant women, and people securing custody of children under the age of 18), and handicap (disability)," according to the U.S. Department of Housing and Urban Development.

At first reading, most students in my Fair Housing class immediately point to "minorities" as the groups that make up the protected classes under the above legislation. In reality, everyone is part of a protected class -- race, color, national origin, religion, sex, familial status -- all depict some sort of characteristic of every person on the planet. The only nationally protected class that is unique to a smaller segment of society is the disability classification.

Since Spokane's Human Rights commission's mission includes the promotion and securing of mutual understanding and "respect among all people regardless of … affectional/sexual orientation…" among other classes, then a gay district, while possibly promoting diversity in some larger sense, smacks of exclusivity and preference when it tries to exclude or prefer one sexual orientation (homosexual) over another. Such a show of preference for one class of buyers over another could elude to discrimination.

While most consumers understand the concept of not discriminating "against" a certain class, fair housing laws tout the concept of not showing "preference" for certain classes, as well.

Several years ago the Washington City Paper in Washington, D.C., was accused by the Fair Housing Council of Greater Washington of publishing the following (allegedly discriminatory) ads: "gay female seeking another gay female to share a house;" "housemate needed, no pets, no Republicans;" "women-of-color group home seeking a new member;" and "Jewish cooperative home starting." The idea behind showing preference for a certain class, the Council contended, was as illegal as discriminating against a particular group.

In a column written about the case, Colorado State Senator and majority leader Mark Hillman-R, contended such policing by housing advocacy groups and HUD "defies common sense and desecrates the Constitution," arguing that such enforcement occurs "when government leaps from prohibiting certain obviously nefarious discrimination to prohibiting discrimination which is sensible or harmless…" But that assumes that some types of discrimination are acceptable -- and as the law goes, they are. In most jurisdictions there are no laws prohibiting discrimination based on filthiness, for instance, or other socially unacceptable habits.

The District enjoys a much larger group of protected classes, including political affiliation, sexual orientation, matriculation, and personal appearance to name a few, in addition to the seven national protected classes.

Since sexual preference or orientation is not deemed a protected class on the national level, the gay activists' plans to develop such a community may not violate federal law. Nevertheless, developing a community for the enjoyment of one group over another could present a legal, if not regulatory, problem when it comes to local and state-wide fair housing laws.

To demonstrate how this might be an issue for the development company, imagine if the Associated Press lead paragraph had begun like this: "White activists in Spokane, Wash., are planning to create a neighborhood of white-only homes, businesses and nightlife …." In today's American culture, such a community would be considered ill-conceived at best, and repulsive by most who believe in the American ideal of homeownership. The Fair Housing laws are color blind -- nowhere does it mention a specific color.

By using an extreme example, most will understand that minority groups aren't the only ones who can be discriminated against and that the majority groups -- in this case whites -- are not the only group that can practice discrimination. In the fair housing arena -- there is no room for showing preference for one group and prohibiting or even making it difficult for another group to join in on the privilege of homeownership.

Resources:


U.S. Department of Housing and Urban Development
National Fair Housing Advocate Online
National Association of Realtors

Published: January 28, 2005