Late last month I posted a note about the case of a Christian who posted a want ad on a church’s bulletin board. Someone noticed that ad and complained to fair housing agency, who, in turn filed a complaint with the US HUD (Housing and Urban Development).
Perhaps you weren’t aware of the power of a federal agency such as HUD, but this case was adjudicated, not by a court or a jury but the Region V Director of HUD. The legal basis for the complaint is the “Fair Housing Act” otherwise known as 42 USC §3601.

It is the vocation of the magistrate to seek proximate (as distinct from ultimate, eschatological) justice. The magistrate has a vocation to punish those who do evil, e.g., those who rob, those who violate the safety and well-being of others. Yet there are limits to civil justice enforced by the magistrate. There are evils that the magistrate cannot address. Think of the magistrate (and civil law) as a hammer. One can do quite a lot with a hammer but it’s a terrible tool for killing flies. By the time one is finished killing flies with a hammer one shall have to rebuild his whole house!

The Fair Housing Act (1968) was a response to pervasive racial discrimination. It is a terrible thing to be sequestered to a particular part of town or to be refused housing (or a hotel room) primarily on the basis of one’s ethnicity or even religion. It is an admirable goal to persuade people not to discriminate, in providing services, against others unjustly. The question here, however, is whether it is properly the business of the federal government attempt to achieve fair housing through legislation? Would such a social problem be better addressed through persuasion rather than through force—every act of legislation is an act of force.

Arguably civil rights legislation such as the Fair Housing have done much good but that good has come at a cost that is illustrated by the prosecution of this Christian landlord: freedom of choice. It seems immoral for a diner to refuse service to people on the basis of the customer’s skin color. It also seems economically stupid. Why would a businessman voluntarily turn away a portion of his market? Nevertheless, it’s his business, it is private property. The same is true for a landlord. Is it really the business of the federal government if a Christian landlord wishes to discriminate by seeking a Christian tenant? Did the founders imagine that a private landowner could not sell or rent his property to whomever he wished?

Would it be better for the cultivation of civil freedom to advocate a a market-based solution to the problem of housing and accommodation? If a landlord refuses to rent or sell to people based on race then some enterprising business person should offer accommodation to those who have been denied. Shouldn’t a bigot be free to put himself out of business?

The adjective “private” is central to this argument. It would be unconstitutional and a form of theft for truly public accommodations to discriminate unjustly. Taxes are colorblind and so should the magistrate and publicly funded services be. A publicly funded accommodation must be open to all the public. Thus, assuming, for the sake of argument, that public housing is just then it must be open to all citizens but in this case we aren’t discussing a publicly funded entity but a private entity. A private entity would be one owned by a private person or funded privately.

Some would blur the distinction on the basis that one must use public conveyance to get to a private property and therefore it is sufficiently “public” to come under the purview of the magistrate in this way. This argument is a non-starter because it proves too much. On this rationale there is no such thing as truly private property and if there is no such thing as private property civil freedom (the absence of direct civil force or restraint of personal privacy and freedom of association) is, in principle, gone.

Christians have a strong interest in the definition of “privacy” and freedom of association. If the magistrate can tell us that we cannot seek a Christian roommate or tenant then why can’t the magistrate also tell us that we must not have doctrinal or moral membership qualifications in our churches? One thinks immediately of the first amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The Fair Housing Act formally bows to the constitution but does it breathe the spirit of the constitution? Is it more concerned with freedom or a certain social outcome? We should appreciate the circumstances in which it came to be. It’s no accident that it was passed in 1968. That was a tumultuous year in American history. It was the year that both Dr King and Robert F. Kennedy were assassinated. Protest against the Vietnam War was reaching a fever pitch. The Democrat National Convention in Chicago erupted into riots. Cities threatened to melt down that summer. It was the culmination of years of protest (usually peaceful) calling for an end to Jim Crow laws and the like. Only a few years earlier civil rights workers had been murdered and others had been attacked by civil authorities for daring to call attention to pervasive, systemic racial injustice.

As a society, however, have we covenanted together, as it were, in the constitution, to achieve a particular social outcome, however laudable, or to preserve certain freedoms, to preserve a certain process? I think the latter is the case.

Fortunately for the Christian seeking a roommate, the Region V Director of HUD ruled that though the landlord was guilty of discrimination, the constitutional guarantees of religious freedom and freedom of association trumps the ordinary application of the Fair Housing Act:

The advertisement contains statements that indicate a preference or limitation based on religion and gender. In general, 42 U.S.C. 3604(c) prohibits such statements whether made verbally or in writing.

However, in light of the facts provided and after assessing the unique context of the advertisement and the roommate relationship involved in this particular situation potentially involving the sharing of personal religious beliefs, the Department defers to Constitutional considerations in reaching its conclusion.

It does not take a lot of creativity to imagine that this decision might have gone differently. Our freedoms are valuable. We should appreciate and protect them. The Alliance Defense Fund worked on this case. They’re helping to preserve our First Amendment liberties by encouraging the magistrate to fulfill his proper vocation.