So a week or so ago there was a story on the news (I think in the SF area) about a landlord who was likely to be sued/fined (by HUD I believe) for housing discrimination. The landlord in question apparently refused to rent to a tenant with HIV (a disability), but only because he was renting out an open room in a shared house (may even have been a shared room) and the other tenants objected to sharing personal space, especially restrooms, with someone who was HIV+. Apparently they feared infection.

While I believe there is a clear cut need for laws preventing discrimination by landlords but I don’t think that is a fair description of what happened in this case. Rather the landlord adopted a neutral policy of only renting to individuals the other house members found acceptable. Certainly this should not be an acceptable defense for apartments or other private residences. Indeed I suspect the reason that this isn’t now accepted as a defense is that some slimy building owners tried to use the objections of white families in the apartment buildings to keep out blacks. However, the presence of individuals in the same house is a wholly different situation. For the remainder of this post when I say ‘the law’ I mean to refer to the lack of an exception to the Fair Housing Act for decisions based on the preferences of ongoing occupants of a genuinely share housed.

As a policy matter applying discrimination law in cases like this is likely to lead to bad consequences. Unlike the business arrangement between the owner of my apartment and I which be bearable even if I didn’t get along with my landlord living in a shared house with people who resent/hate you is unlikely to be desirable. Thus the law only provides access to an undesirable commodity while at the same time restricting access to a very valuable one, knowledge that your potential housemates hate people of your race/religion/sexual orientation (some places don’t know about federally). Without this law your potential housemates would say upfront in their add, or at least when you applied, that they don’t like your sort. Some potential victims of discrimination will only find out after they move in that their housemates hate them (rented remotely) while others will just find themselves turned down for ‘personality conflicts’ after wasting their time applying to rent a room in a house the law prevented them from knowing was filled with bigots. Any change in outcome one can imagine such a law making is likely to be bad.

Also, this law puts landlords renting shared houses between a rock and a hard place. I mean what was the landlord in this situation supposed to do? Does he tell the potential tenant that the other tenants don’t want to live with him? Even that increases his exposure to a discrimination claim. Does he let this poor guy take the room without telling him he is walking into a house that doesn’t want him? Additionally letting this guy take the room alienates his current tenants. The whole situation provides a strong incentive for landlords simply not to rent shared rooms individually but instead rent the whole house out and let someone sublet. While this avoids liability for the landlord it also screws poor people who don’t have rich parents to countersign the huge initial rental.

Finally, even if we imagine a perfect world in which none of the unintended consequences or the difficulty with enforcement this sort of law still enacts a large cost. Choosing who one lives with is an important and basic autonomy that a free society should protect. Indeed, the housing laws recognize this fact and grant an exception from the discrimination rules for landlords living in the house and renting out only one room. However, giving this right only to owner-occupants effectively restricts it only to those rich enough to own their own homes. If an exception to the discrimination laws is justified for owner-occupiers there is no good reason not to grant it to renters choosing to sublet as well.

The impingement on personal liberty by this law doesn’t just affect traditional racists and homophobes. On it’s face the law also prohibits blacks who want to live with other blacks or jews who wish to live with other jews. Indeed, it seems quite reasonable to me to prefer to share a space with those of the same religious persuasion. For instance it seems particularly cruel to require a bunch of observant theists to let someone like me rent a room in their house. Most infuriatingly this law even prevents one from offering child free housing. Theoretically if I am trying to rent out a second room in my house (renting out two rooms puts you out of the exception) or sublet a room in a shared house I can’t choose a childless pair of adults over a mother and her squalling, peeing and generally horrible child.

One might argue that the law is rarely if ever enforced in these situations but that just makes it worse. Creating situations where people are punished because of someone’s moral whims rather than for breaking a publicly available rule is in and of itself a harm. Whether or not I get fined for advertising for childless renters or one of my gay friends gets punished for asking for another gay roommate should not depend on some officials attitude towards children or gays. Moreover, if the law shouldn’t be applied generally it is unclear what the justification for imposing it on some of the cases is supposed to be. Unlike classical anti-discrimination law there is little reason to believe this law will do anything positive to reduce prejudice in our society.

Also just because someone’s fears and preferences might have been born out of ignorance or from growing up surrounded by prejudice doesn’t mean they won’t be unhappy being forced to live with a person they fear/dislike. If there is an asian girl who was raped by a white guy and as a result is horribly afraid of living with white guys should we tell her, “Too bad. That’s just a prejudice formed from incorrectly generalizing from one incident.”? In this AIDS case just because this potential housemate wouldn’t really give them HIV doesn’t mean they wouldn’t be afraid. Besides, while the risk isn’t great living in a house with someone who has HIV really does increase their risk of exposure (say he cuts himself, or he is really hot and they can’t resist trying to sleep with him). Wouldn’t it be better for everyone involved for the government to simply give AIDS patients extra money which they could use to pay any premium price they may have to pay in the housing market thereby finding the solution where the people who least mind living with the HIV positive (and will make him the best housemates) are the ones who actually do.

Ultimately if we have good reason to believe a law or policy will be effective in ending racism and prejudice we should be willing to endure substantial costs to implement it. However, an individuals ability to choose who they live with is an important and psychologically significant right we should try to extend to as many citizens as possible (including various sorts of housing assistance). In the absence of a good reason to believe the law will help we should not infringe on the known good of individual autonomy in choosing their housemates. When we have good reason to believe that the policy will actually hurt those it is designed to help and comes along with a raft of undesirable side effects it would be absurd to let mere moral indignation at the practice the law bans (that we can’t even define in the law) justify keeping it.