FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FAIR HOUSING COUNCIL OF SAN
FERNANDO VALLEY; THE FAIR
HOUSING COUNCIL OF SAN DIEGO, No. 09-55272
Plaintiffs-Appellees,
D.C. No.
2:03-cv-09386-
v.
PA-RZ
ROOMMATE.COM, LLC,
Defendant-Appellant.
FAIR HOUSING COUNCIL OF SAN
FERNANDO VALLEY; THE FAIR
HOUSING COUNCIL OF SAN DIEGO, No. 09-55875
Plaintiffs-Appellees,
D.C. No.
2:03-cv-09386-
v.
PA-RZ
ROOMMATE.COM, LLC,
Defendant-Appellant.
973
974 FAIR HOUSING COUNCIL v. ROOMMATE.COM
FAIR HOUSING COUNCIL OF SAN
FERNANDO VALLEY; THE FAIR
HOUSING COUNCIL OF SAN DIEGO,
Plaintiffs-Appellees-Cross-
Appellants, No. 09-55969
and D.C. No.
FAIR HOUSING COUNCIL OF SAN 2:03-cv-09386-
GABRIEL VALLEY, PA-RZ
Plaintiff, OPINION
v.
ROOMMATE.COM, LLC,
Defendant-Appellant-Cross-
Appellee.
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Argued and Submitted
July 14, 2011—Pasadena, California
Filed February 2, 2012
Before: Alex Kozinski, Chief Judge, Stephen Reinhardt and
Sandra S. Ikuta, Circuit Judges.
Opinion by Chief Judge Kozinski;
Partial Concurrence and Partial Dissent by Judge Ikuta
FAIR HOUSING COUNCIL v. ROOMMATE.COM 977
COUNSEL
Elizabeth Brancart (argued), Christopher Brancart, Brancart &
Brancart, Pescadero, California, for the plaintiff-appellees and
cross-appellants.
Timothy L. Alger (argued), Susan B. Estrich, Scott B. Kid-
man, Christopher E. Price, Quinn Emanuel Urquhart &
Hedges, LLP, Los Angeles, California, for the defendant-
appellant and cross-appellee.
978 FAIR HOUSING COUNCIL v. ROOMMATE.COM
OPINION
KOZINSKI, Chief Judge:
There’s no place like home. In the privacy of your own
home, you can take off your coat, kick off your shoes, let your
guard down and be completely yourself. While we usually
share our homes only with friends and family, sometimes we
need to take in a stranger to help pay the rent. When that hap-
pens, can the government limit whom we choose? Specifi-
cally, do the anti-discrimination provisions of the Fair
Housing Act (“FHA”) extend to the selection of roommates?
FACTS
Roommate.com, LLC (“Roommate”) operates an internet-
based business that helps roommates find each other. Room-
mate’s website receives over 40,000 visits a day and roughly
a million new postings for roommates are created each year.
When users sign up, they must create a profile by answering
a series of questions about their sex, sexual orientation and
whether children will be living with them. An open-ended
“Additional Comments” section lets users include information
not prompted by the questionnaire. Users are asked to list
their preferences for roommate characteristics, including sex,
sexual orientation and familial status. Based on the profiles
and preferences, Roommate matches users and provides them
a list of housing-seekers or available rooms meeting their
criteria. Users can also search available listings based on
roommate characteristics, including sex, sexual orientation
and familial status.
The Fair Housing Councils of San Fernando Valley and
San Diego (“FHCs”) sued Roommate in federal court, alleg-
ing that the website’s questions requiring disclosure of sex,
sexual orientation and familial status, and its sorting, steering
and matching of users based on those characteristics, violate
the Fair Housing Act (“FHA”), 42 U.S.C. § 3601 et seq., and
FAIR HOUSING COUNCIL v. ROOMMATE.COM 979
the California Fair Employment and Housing Act (“FEHA”),
Cal. Gov’t Code § 12955.
The district court initially dismissed the claims, holding
that Roommate was immune under section 230 of the Com-
munications Decency Act (“CDA”), 47 U.S.C. § 230. We
reversed, holding that Roommate was protected by the CDA
for publishing the “Additional Comments” section, but not for
(1) posting questionnaires that required disclosure of sex, sex-
ual orientation and familial status; (2) limiting the scope of
searches by users’ preferences on a roommate’s sex, sexual
orientation and familial status; and (3) a matching system that
paired users based on those preferences. Fair Hous. Council
v. Roommates.com, LLC, 521 F.3d 1157, 1166 (9th Cir. 2008)
(en banc).
Our opinion was limited to CDA immunity and didn’t
reach whether the activities, in fact, violated the FHA. On
remand, the district court held that Roommate’s prompting of
discriminatory preferences from users, matching users based
on that information and publishing these preferences violated
the FHA and FEHA, and enjoined Roommate from those
activities. Roommate appeals the grant of summary judgment
and permanent injunction, and also the district court’s order
awarding the FHCs $494,714.40 in attorney’s fees. The FHCs
cross-appeal the amount of the attorney’s fees.
STANDING
[1] Roommate argues that the FHCs lack standing because
they didn’t suffer actual injury. We’ve held that an organiza-
tion has “direct standing to sue [when] it showed a drain on
its resources from both a diversion of its resources and frus-
tration of its mission.” Fair Hous. of Marin v. Combs, 285
F.3d 899, 905 (9th Cir. 2002). However, “ ‘standing must be
established independent of the lawsuit filed by the plaintiff.’ ”
Comite de Jornaleros de Redondo Beach v. City of Redondo
Beach, No. 06-55750, 2011 WL 4336667, at *3 (9th Cir. Sept.
980 FAIR HOUSING COUNCIL v. ROOMMATE.COM
16, 2011) (quoting Walker v. City of Lakewood, 272 F.3d
1114, 1124 n.3 (9th Cir. 2001)). An organization “cannot
manufacture [an] injury by incurring litigation costs or simply
choosing to spend money fixing a problem that otherwise
would not affect the organization at all.” La Asociacion de
Trabajadores de Lake Forest v. City of Lake Forest, 624 F.3d
1083, 1088 (9th Cir. 2010); see also Combs, 285 F.3d at 903
(“[A]n organization cannot, of course, manufacture the injury
necessary to maintain a suit from its expenditure of resources
on that very suit . . . .” (internal quotation marks omitted)).
[2] Prior to commencing litigation, the FHCs investigated
Roommate’s alleged violations and, in response, started new
education and outreach campaigns targeted at discriminatory
roommate advertising. The resources spent on those cam-
paigns were not associated with litigation. Because Room-
mate’s conduct caused the FHCs to divert resources
independent of litigation costs and frustrated their central mis-
sion, we conclude that the FHCs have organizational standing.
ANALYSIS
If the FHA extends to shared living situations, it’s quite
clear that what Roommate does amounts to a violation. The
pivotal question is whether the FHA applies to roommates.
I
[3] The FHA prohibits discrimination on the basis of “race,
color, religion, sex, familial status, or national origin” in the
“sale or rental of a dwelling.” 42 U.S.C. § 3604(b) (emphasis
added). The FHA also makes it illegal to
make, print, or publish, or cause to be made, printed,
or published any notice, statement, or advertisement,
with respect to the sale or rental of a dwelling that
indicates any preference, limitation, or discrimina-
tion based on race, color, religion, sex, handicap,
FAIR HOUSING COUNCIL v. ROOMMATE.COM 981
familial status, or national origin, or an intention to
make any such preference, limitation, or discrimina-
tion.
Id. § 3604(c) (emphasis added). The reach of the statute turns
on the meaning of “dwelling.”
[4] The FHA defines “dwelling” as “any building, struc-
ture, or portion thereof which is occupied as, or designed or
intended for occupancy as, a residence by one or more fami-
lies.” Id. § 3602(b). A dwelling is thus a living unit designed
or intended for occupancy by a family, meaning that it ordi-
narily has the elements generally associated with a family res-
idence: sleeping spaces, bathroom and kitchen facilities, and
common areas, such as living rooms, dens and hallways.
It would be difficult, though not impossible, to divide a
single-family house or apartment into separate “dwellings”
for purposes of the statute. Is a “dwelling” a bedroom plus a
right to access common areas? What if roommates share a
bedroom? Could a “dwelling” be a bottom bunk and half an
armoire? It makes practical sense to interpret “dwelling” as an
independent living unit and stop the FHA at the front door.
There’s no indication that Congress intended to interfere
with personal relationships inside the home. Congress wanted
to address the problem of landlords discriminating in the sale
and rental of housing, which deprived protected classes of
housing opportunities. But a business transaction between a
tenant and landlord is quite different from an arrangement
between two people sharing the same living space. We seri-
ously doubt Congress meant the FHA to apply to the latter.
Consider, for example, the FHA’s prohibition against sex dis-
crimination. Could Congress, in the 1960s, really have meant
that women must accept men as roommates? Telling women
they may not lawfully exclude men from the list of acceptable
roommates would be controversial today; it would have been
scandalous in the 1960s.
982 FAIR HOUSING COUNCIL v. ROOMMATE.COM
While it’s possible to read dwelling to mean sub-parts of a
home or an apartment, doing so leads to awkward results. And
applying the FHA to the selection of roommates almost cer-
tainly leads to results that defy mores prevalent when the stat-
ute was passed. Nonetheless, this interpretation is not wholly
implausible and we would normally consider adopting it,
given that the FHA is a remedial statute that we construe
broadly. Therefore, we turn to constitutional concerns, which
provide strong countervailing considerations.
II
[5] The Supreme Court has recognized that “the freedom
to enter into and carry on certain intimate or private relation-
ships is a fundamental element of liberty protected by the Bill
of Rights.” Bd. of Dirs. of Rotary Int’l v. Rotary Club of
Duarte, 481 U.S. 537, 545 (1987). “[C]hoices to enter into
and maintain certain intimate human relationships must be
secured against undue intrusion by the State because of the
role of such relationships in safeguarding the individual free-
dom that is central to our constitutional scheme.” Roberts v.
U.S. Jaycees, 468 U.S. 609, 617-18 (1984). Courts have
extended the right of intimate association to marriage, child
bearing, child rearing and cohabitation with relatives. Id.
While the right protects only “highly personal relationships,”
IDK, Inc. v. Clark Cnty., 836 F.2d 1185, 1193 (9th Cir. 1988)
(quoting Roberts, 468 U.S. at 618), the right isn’t restricted
exclusively to family, Bd. of Dirs. of Rotary Int’l, 481 U.S. at
545. The right to association also implies a right not to asso-
ciate. Roberts, 428 U.S. at 623.
[6] To determine whether a particular relationship is pro-
tected by the right to intimate association we look to “size,
purpose, selectivity, and whether others are excluded from
critical aspects of the relationship.” Bd. of Dirs. of Rotary
Int’l, 481 U.S. at 546. The roommate relationship easily quali-
fies: People generally have very few roommates; they are
selective in choosing roommates; and non-roommates are
FAIR HOUSING COUNCIL v. ROOMMATE.COM 983
excluded from the critical aspects of the relationship, such as
using the living spaces. Aside from immediate family or a
romantic partner, it’s hard to imagine a relationship more inti-
mate than that between roommates, who share living rooms,
dining rooms, kitchens, bathrooms, even bedrooms.
[7] Because of a roommate’s unfettered access to the
home, choosing a roommate implicates significant privacy
and safety considerations. The home is the center of our pri-
vate lives. Roommates note our comings and goings, observe
whom we bring back at night, hear what songs we sing in the
shower, see us in various stages of undress and learn intimate
details most of us prefer to keep private. Roommates also
have access to our physical belongings and to our person. As
the Supreme Court recognized, “[w]e are at our most vulnera-
ble when we are asleep because we cannot monitor our own
safety or the security of our belongings.” Minnesota v. Olson,
495 U.S. 91, 99 (1990). Taking on a roommate means giving
him full access to the space where we are most vulnerable.
Equally important, we are fully exposed to a roommate’s
belongings, activities, habits, proclivities and way of life. This
could include matter we find offensive (pornography, reli-
gious materials, political propaganda); dangerous (tobacco,
drugs, firearms); annoying (jazz, perfume, frequent overnight
visitors, furry pets); habits that are incompatible with our life-
style (early risers, messy cooks, bathroom hogs, clothing bor-
rowers). When you invite others to share your living quarters,
you risk becoming a suspect in whatever illegal activities they
engage in.
[8] Government regulation of an individual’s ability to
pick a roommate thus intrudes into the home, which “is enti-
tled to special protection as the center of the private lives of
our people.” Minnesota v. Carter, 525 U.S. 83, 99 (1998)
(Kennedy, J., concurring). “Liberty protects the person from
unwarranted government intrusions into a dwelling or other
private places. In our tradition the State is not omnipresent in
984 FAIR HOUSING COUNCIL v. ROOMMATE.COM
the home.” Lawrence v. Texas, 539 U.S. 558, 562 (2003).
Holding that the FHA applies inside a home or apartment
would allow the government to restrict our ability to choose
roommates compatible with our lifestyles. This would be a
serious invasion of privacy, autonomy and security.
For example, women will often look for female roommates
because of modesty or security concerns. As roommates often
share bathrooms and common areas, a girl may not want to
walk around in her towel in front of a boy. She might also
worry about unwanted sexual advances or becoming romanti-
cally involved with someone she must count on to pay the
rent.
An orthodox Jew may want a roommate with similar
beliefs and dietary restrictions, so he won’t have to worry
about finding honey-baked ham in the refrigerator next to the
potato latkes. Non-Jewish roommates may not understand or
faithfully follow all of the culinary rules, like the use of dif-
ferent silverware for dairy and meat products, or the prohibi-
tion against warming non-kosher food in a kosher microwave.
Taking away the ability to choose roommates with similar
dietary restrictions and religious convictions will substantially
burden the observant Jew’s ability to live his life and practice
his religion faithfully. The same is true of individuals of other
faiths that call for dietary restrictions or rituals inside the
home.
The U.S. Department of Housing and Urban Development
recently dismissed a complaint against a young woman for
advertising, “I am looking for a female christian roommate,”
on her church bulletin board. In its Determination of No Rea-
sonable Cause, HUD explained that “in light of the facts pro-
vided and after assessing the unique context of the
advertisement and the roommate relationship involved . . . the
Department defers to Constitutional considerations in reach-
ing its conclusions.” Fair Hous. Ctr. of W. Mich. v. Tricia,
FAIR HOUSING COUNCIL v. ROOMMATE.COM 985
No. 05-10-1738-8 (Oct. 28, 2010) (Determination of No Rea-
sonable Cause).
[9] It’s a “well-established principle that statutes will be
interpreted to avoid constitutional difficulties.” Frisby v.
Schultz, 487 U.S. 474, 483 (1988). “[W]here an otherwise
acceptable construction of a statute would raise serious consti-
tutional problems, the Court will construe the statute to avoid
such problems unless such construction is plainly contrary to
the intent of Congress.” Pub. Citizen v. U.S. Dep’t of Justice,
491 U.S. 440, 466 (1989) (internal quotation marks omitted).
Because the FHA can reasonably be read either to include or
exclude shared living arrangements, we can and must choose
the construction that avoids raising constitutional concerns.
See INS v. St. Cyr, 533 U.S. 289, 299-300 (2001) (“[I]f an
otherwise acceptable construction of a statute would raise
serious constitutional problems, and where an alternative
interpretation of the statute is fairly possible, we are obligated
to construe the statute to avoid such problems.”) (internal cita-
tion and quotations marks omitted). Reading “dwelling” to
mean an independent housing unit is a fair interpretation of
the text and consistent with congressional intent. Because the
construction of “dwelling” to include shared living units
raises substantial constitutional concerns, we adopt the nar-
rower construction that excludes roommate selection from the
reach of the FHA.
III
[10] Because we find that the FHA doesn’t apply to the
sharing of living units, it follows that it’s not unlawful to dis-
criminate in selecting a roommate. As the underlying conduct
is not unlawful, Roommate’s facilitation of discriminatory
roommate searches does not violate the FHA. While Room-
mate itself has no intimate association right, it is entitled to
raise the constitutional claims of its users. See Craig v. Boren,
429 U.S. 190, 195 (1976). The injunction entered by the dis-
trict court precludes Roommate’s members from selecting
986 FAIR HOUSING COUNCIL v. ROOMMATE.COM
roommates unfettered by government regulation. Roommate
may therefore raise these claims on their behalf.
IV
[11] The same constitutional concerns over the right to
intimate association would arise if the California Fair
Employment and Housing Act (“FEHA”) were applied to
roommates. Accordingly, we interpret “housing accommoda-
tion” in section 12955(c) of the FEHA to exclude the sharing
of living units. Similarly to how the FHA defines “dwelling,”
the FEHA defines “housing accommodation” as “any build-
ing, structure, or portion thereof that is occupied as, or
intended for occupancy as, a residence by one or more fami-
lies.” Cal. Gov. Code § 12927(d). This ambiguous definition
allows us to apply the canon of constitutional avoidance to
find that the FEHA does not reach the selection of room-
mates.
In a 1995 amendment, the FEHA carved out from the defi-
nition of discrimination “the use of words stating or tending
to imply that the housing being advertised is available only to
persons of one sex,” “[w]here the sharing of living areas in a
single dwelling unit is involved.” Cal. Gov. Code
§ 12927(c)(2)(B). The concurrence infers from this 1995
exemption that the statute as passed in 1974 must have cov-
ered roommates. But the acts of a subsequent legislature tell
us nothing definitive about the meaning of laws adopted by an
earlier legislature. See Pension Benefit Guar. Corp. v. LTV
Corp., 496 U.S. 633, 650 (1990) (“[S]ubsequent legislative
history is a hazardous basis for inferring the intent of an ear-
lier Congress.” (internal quotation marks omitted)); see also
Sullivan v. Finkelstein, 496 U.S. 617, 632 (1990) (Scalia, J.,
concurring) (“Arguments based on subsequent legislative his-
tory . . . should not be taken seriously, not even in a foot-
note.”). The 1995 legislature may have been uncertain about
whether the statute, as passed decades earlier, covered room-
mates, and wanted to remove any doubt that roommates could
FAIR HOUSING COUNCIL v. ROOMMATE.COM 987
select each other by sex. But the amendment can shed no light
on the meaning of “housing accommodation” in the FEHA, a
statutory phrase it does not modify or reference.
[12] Nothing in the language of the statute provides that a
“housing accommodation” includes shared living quarters.
Under the canon of constitutional avoidance, the interpreta-
tion of the statute need not be the best reading, so long as it’s
“fairly possible.” St. Cyr, 533 U.S. at 299-300. It is “fairly
possible” that the statute does not apply to roommates. Inter-
preting it as excluding roommates avoids a ruling on a diffi-
cult and unexplored constitutional issue.
The concurrence also relies on a FEHC decision, but the
FEHC had no authority to address the underlying constitu-
tional problems raised by the FEHA, and thus had no reason
to consider the constitutional avoidance canon: “Whether it is
sound policy to ban discrimination in the selection of room-
mates, and whether such a policy implicates constitutional
rights of privacy or association, are not questions for this
decision to resolve. Those are issues for the Legislature and
the courts, respectively, to decide.” Dep’t of Fair Emp’t &
Hous. v. Larrick, FEHC Dec. No. 98-12, 1998 WL 750901,
at *5 n.1 (July 22, 1998). We, on the other hand, have a duty
to consider constitutional concerns and to adopt an interpreta-
tion that avoids ruling on the constitutionality of a statute, if
we can fairly do so. See St. Cyr, 533 U.S. at 299-300. We are
as capable as the district court in resolving the issue, which
we review de novo in any event. Therefore, we see no need
to remand this question to the district court.
***
[13] Because precluding individuals from selecting room-
mates based on their sex, sexual orientation and familial status
raises substantial constitutional concerns, we interpret the
FHA and FEHA as not applying to the sharing of living units.
Therefore, we hold that Roommate’s prompting, sorting and
988 FAIR HOUSING COUNCIL v. ROOMMATE.COM
publishing of information to facilitate roommate selection is
not forbidden by the FHA or FEHA. Accordingly, we vacate
the district court’s judgment and remand for entry of judg-
ment for defendant. Because the FHCs are no longer prevail-
ing, we vacate the district court’s order for attorney’s fees and
dismiss the cross-appeals on attorney’s fees as moot.
VACATED AND REMANDED IN PART; DISMISSED
IN PART
IKUTA, Circuit Judge, concurring and dissenting:
I concur in the majority’s holding that the Fair Housing Act
(FHA) does not apply to the sharing of living units. I write
separately, however, to express my concern that our circuit’s
test for organizational standing cannot be reconciled with
Supreme Court precedent. Further, I respectfully dissent from
Part IV of the majority decision, which applies its FHA analy-
sis to the California Fair Employment and Housing Act
(FEHA) claim of the two Fair Housing Councils.
I
In order to assert standing as an organization, rather than on
behalf of their members,1 the Fair Housing Councils must
show they suffered an injury in fact, just as if they were indi-
viduals. See Havens Realty Corp. v. Coleman, 455 U.S. 363,
378-79 (1982). In other words, each Fair Housing Council
1
If either of the Fair Housing Councils had asserted standing on behalf
of its members, it would need to show that its “[1] members would other-
wise have standing to sue in their own right, [2] the interests at stake are
germane to the organization’s purpose, and [3] neither the claim asserted
nor the relief requested requires the participation of individual members
in the lawsuit.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC),
Inc., 528 U.S. 167, 181 (2000). But here, the Fair Housing Councils assert
only organizational standing.
FAIR HOUSING COUNCIL v. ROOMMATE.COM 989
must show that Roommates’ actions caused it to suffer “an
invasion of a legally protected interest which is (a) concrete
and particularized, and (b) actual or imminent.” Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560 (1992) (citations and
internal quotation marks omitted).2 To meet this requirement,
the Fair Housing Councils must show that Roommates’ con-
duct “perceptibly impair[s]” the organizations’ interest in car-
rying out their core missions. Havens, 455 U.S. at 378-79.
Fair Housing Councils of San Fernando Valley and San
Diego are non-profit organizations with the shared core mis-
sion of eliminating housing discrimination in their communi-
ties. They accomplish this mission through, among other
things, investigation, education, and outreach regarding
instances of housing discrimination. In response to their dis-
covery of Roommate’s allegedly discriminatory housing
advertisements, the Fair Housing Councils spent money on
investigation, education, and outreach regarding the trend of
housing discrimination on the Internet.
So far so good: two organizations dedicated to combating
housing discrimination have spent money combating housing
discrimination. But according to the Fair Housing Councils
and our precedent, these organizations were “injured” for
standing purposes by the very expenses that advanced their
mission. This raises a question that threatens to bring us log-
gerheads with Lujan: How can an organization have a legally
protected interest in not spending money to advance its core
mission?
A
The answer to this question is embedded in an illogical and
erroneous development in our case law. We have correctly
2
There also must be a causal connection between the injury and the
defendant’s conduct, and the injury must be redressable by a favorable
decision. Id. at 560-61.
990 FAIR HOUSING COUNCIL v. ROOMMATE.COM
recognized that organizations have standing to sue on their
own behalf when a defendant’s actions impair the organiza-
tion’s ability to function as an organization. An action that
invades an organization’s interest in recruiting members,
obtaining funding, or collecting dues clearly hinders that
organization’s ability to function, and is an injury for pur-
poses of standing. See, e.g., Am. Fed’n. of Gov’t Emps. Local
1 v. Stone, 502 F.3d 1027, 1033 (9th Cir. 2007) (“[A]n
increased difficulty in recruiting union members qualifies as
a ‘concrete and demonstrable’ injury”); Walker v. City of
Lakewood, 272 F.3d 1114, 1124-25 (9th Cir. 2001) (holding
that an organization was injured by, among other things,
delayed contractual payments and government client’s non-
renewal of the contract); Constr. Indus. Ass’n of Sonoma Cty.
v. City of Petaluma, 522 F.2d 897, 903 (9th Cir. 1975) (hold-
ing that a restrictive building plan injured an association of
builders “in a very real sense” because it decreased construc-
tion and consequently, membership dues for the association).
The Supreme Court has also held that an organization’s
ability to function as an organization is impaired if its purpose
is to provide a specified type of service and a defendant’s
actions hinder the organization from providing that core ser-
vice. Havens, 455 U.S. at 378-79. In Havens, a fair housing
organization alleged that its mission was to “assist equal
access to housing through counseling and other referral ser-
vices.” Id. at 379. The organization asserted that the defen-
dant’s discriminatory housing practices frustrated the
organization’s ability to “provide counseling and referral ser-
vices for low- and moderate-income homeseekers.” Id. The
Court held that this allegation was sufficient for standing
because it represented a “concrete and demonstrable injury to
the organization’s activities—with the consequent drain on
the organizations’s resources—[that was] far more than sim-
ply a setback to the organization’s abstract social interests.”
Id.
Based on this language in Havens, we developed a two-
prong test: an organization can establish an injury if it can
FAIR HOUSING COUNCIL v. ROOMMATE.COM 991
show “(1) frustration of its organizational mission; and (2)
diversion of its resources to combat the [challenged actions].”
Smith v. Pac. Prop. & Dev. Corp., 358 F.3d 1097, 1105 (9th
Cir. 2004). While our articulation of the test is consistent with
Havens, our application of it has drifted away from the
requirement that an organization actually suffer an injury.
In Smith, for example, we considered whether an organiza-
tion dedicated to “eliminat[ing] discrimination against indi-
viduals with disabilities by ensuring compliance with
[accessibility] laws” had standing to sue a real estate devel-
oper who constructed properties with alleged design and con-
struction defects that violated those laws. Id. at 1105. We held
that because the organization’s ultimate goal was to eliminate
discrimination against individuals with disabilities, “[a]ny
violation” of the relevant accessibility law constituted a frus-
tration of the organization’s mission. Id.; see also Fair Hous.
of Marin v. Combs, 285 F.3d 899, 905 (9th Cir. 2002) (hold-
ing that an organization’s mission of promoting equal housing
opportunities, as required by the FHA, was frustrated by the
defendant’s alleged FHA violations). We further held that the
organization met the “diversion of resources” prong because
the money it spent “in order to monitor the violations”
diverted resources “from other efforts to promote awareness
of—and compliance with—federal and state accessibility
laws.” Smith, 358 F.3d at 1105. Yet no allegations were made
that this allocation of resources harmed the organization in
any way. Id. Rather, all that our precedent required for diver-
sion was that the organization spent resources that it “other-
wise would spend in other ways.” El Rescate Legal Servs.,
Inc. v. Exec. Office of Immigration Review, 959 F.2d 742, 748
(9th Cir. 1991).
Thus, we have held that an organization with a social inter-
est in advancing enforcement of a law was injured when the
organization spent money enforcing that law. This looks sus-
piciously like a harm that is simply “a setback to the organiza-
tion’s abstract social interests,” the very thing Havens
992 FAIR HOUSING COUNCIL v. ROOMMATE.COM
indicated was not a “concrete and demonstrable injury to the
organization’s activities.” Havens, 455 U.S. at 379; see also
Sierra Club v. Morton, 405 U.S. 727, 738-39 (1972) (holding
that an organization’s abstract interest in a problem, without
direct harm, is insufficient to establish standing). After all, an
organization created to advance enforcement of a law is not
hampered in its mission because the law is violated: absent
violations, the organization would have to find a new mission.
Furthermore, the organization has no legally protected interest
in keeping its budget allocation constant, especially in the
face of new opportunities to advance its mission. New organi-
zational undertakings by definition divert resources but, as
shown below, nothing about such diversion is per se harmful.
Smith’s ruling to the contrary is in tension with the Supreme
Court’s requirement that an organization actually suffer a
“concrete and particularized injury.” Lujan, 504 U.S. at 560.
B
This case brings the strain between our case law and
Supreme Court precedent close to a rupture.
As noted above, the Fair Housing Councils have the mis-
sion of eliminating unlawful housing discrimination, in part
through investigation, education and outreach. Before bring-
ing this litigation, the organizations purposely decided to
advance their mission by focusing on discrimination in online
housing advertisements, such as those allegedly contained on
Roommate’s site. Pursuant to this intentional allocation of
resources, both Fair Housing Councils spent time investigat-
ing Roommate’s website to find specific instances of discrim-
ination. Further, Fair Housing Council San Diego hosted a
conference “on the topic of the Internet and fair housing” and
“conducted approximately 49 outreach presentations” on the
subject. Fair Housing Council of San Fernando Valley “sent
an education letter and fair housing packet to sixty-four (64)
media and advertising sources with explicit mention of the
fair housing concerns with advertising listings in the elec-
FAIR HOUSING COUNCIL v. ROOMMATE.COM 993
tronic form,” along with “devot[ing] more time to the problem
of discriminatory rental listings” in its training seminars. In
short, the Fair Housing Councils spent money investigating
and addressing the exact problem they were established to
address, housing discrimination, in the exact way they
planned to address such problems, education and outreach.
If anything, their newfound topical focus on Internet hous-
ing advertisements reflected the Fair Housing Councils’ con-
sidered judgments of how they could best accomplish their
goals in the face of changing client needs created by new
technology. As they acknowledged, the Internet was a “new
frontier” of housing discrimination. In response to this “trend”
and the “sheer numbers” of housing discrimination issues
raised by websites like Roommate’s, the Fair Housing Coun-
cils made Internet advertising a “major focus of [their] out-
reach efforts.” Therefore, the alleged “diversion” here was a
voluntary redirection of more resources to areas where there
were more housing problems and where the Fair Housing
Councils could make a bigger impact advancing their mis-
sions. This represents adaptive and savvy organizational man-
agement, not injury. See Fair Emp’t Council of Greater
Wash., Inc. v. BMC Mktg. Corp., 28 F.3d 1268, 1277 (D.C.
Cir. 1994) (“One can hardly say that BMC [an allegedly dis-
criminatory employer] has injured the Council merely
because the Council has decided that its money would be bet-
ter spent by testing BMC than by counseling or research-
ing.”).
Given this record, it is clear that Roommates’ activities did
not cause the Fair Housing Councils to incur an injury-in-fact
that meets the Lujan standard. The Fair Housing Councils suf-
fered no invasion of their organizational interest in obtaining
funding, collecting dues or recruiting members; nor were they
hampered from advancing their mission. In holding otherwise,
we are faithful to our precedent, but unfaithful to Lujan.
Where Supreme Court precedent is contrary to our prece-
dent, we are the ones that have to change. Cf. Atonio v. Wards
994 FAIR HOUSING COUNCIL v. ROOMMATE.COM
Cove Packing Co., Inc., 810 F.2d 1477, 1478-79 (9th Cir.
1987). I suggest that it is time we revisited our circuit’s test
en banc.
II
In addition to my concern about our standing inquiry, I
must respectfully dissent from the majority’s decision to
“apply the canon of constitutional avoidance to find that
FEHA does not reach the selection of roommates.” Maj. Op.
at 986. The interpretive canon of constitutional avoidance
directs that “where an otherwise acceptable construction of a
statute would raise serious constitutional problems, the Court
will construe the statute to avoid such problems.” Edward J.
DeBartolo Corp. v. Fl. Gulf Coast Bldg. & Constr. Trades
Council, 485 U.S. 568, 575 (1988). But this interpretive tool
can be used only when a statute is ambiguous. It does not give
federal courts the power to “rewrite a state law to conform it
to constitutional requirements.” Virginia v. Am. Booksellers
Ass’n, Inc., 484 U.S. 383, 397 (1988).
In this case, FEHA’s language and its application by the
California agency tasked with interpreting it suggest that
FEHA is “unambiguous on the point under consideration
here.” See Salinas v. United States, 522 U.S. 52, 60 (1997).
FEHA expressly defines “discrimination” as not including
“the use of words stating or tending to imply that the housing
being advertised is available only to persons of one sex,” in
a situation “[w]here the sharing of living areas in a single
dwelling unit is involved.” Cal. Gov. Code § 12927(c)(2)(B).
This language is not in the FHA. Because a statute’s “mention
of [one example] implies the exclusion of others not men-
tioned,” United Dominion Indus., Inc. v. United States, 532
U.S. 822, 836 (2001), FEHA’s definition of “discrimination”
in § 12927(c)(2)(B) expresses the state legislature’s intent to
exempt sex-specific advertisements for shared living units in
a single dwelling from the restrictions of FEHA, but not
FAIR HOUSING COUNCIL v. ROOMMATE.COM 995
exempt advertisements that discriminate on the basis of other
protected characteristics, such as race or religion.3
This plain-language reading of § 12927(c)(2)(B) is con-
firmed by the decision of the California Fair Employment and
Housing Commission4 in Dep’t of Fair Emp’t and Housing v.
Larrick, FEHC Dec. No. 98-12, 1998 WL 750901 (July 22,
1998). Larrick involved two roommates who decided not to
rent to a potential third roommate because she was black. Id.
at *3. The Commission held that the “plain language” of
FEHA applied to this shared living situation and prohibited
the two roommates “from rejecting an applicant on the basis
of race and color.” Id. at *5. In arriving at this conclusion, the
Commission stated that none of FEHA’s exceptions were
applicable, specifically noting that § 12927(c)(2)(B) “allow[s]
sex-specific (but not race-specific) advertisements for single
dwellings with shared living areas.” Id. at *6, n.2.
Because FEHA (unlike the FHA) is unambiguous regarding
its applicability to shared living arrangements, the majority
cannot interpret FEHA in a way to avoid the constitutional
problems that may arise if the act is applied to bar advertise-
ments for shared living arrangements that discriminate on the
basis of protected characteristics such as race or religion. The
3
The majority contends that we can ignore this amendment to FEHA
because the “acts of a subsequent legislature tell us nothing definitive
about the meaning of laws adopted by an earlier legislature.” Maj. Op. at
986. But in determining whether a statute is ambiguous, we must construe
the current version of the law, not what it used to be. See Red Lion Broad.
Co. v. FCC, 395 U.S. 367, 380-81 (1969) (holding that a court must give
“great weight” to amendments to a statute that clarify its proper construc-
tion). Once a duly enacted amendment clarifies a statute, it is no longer
ambiguous, and we cannot treat it as such by pointing to its former
ambiguity.
4
The Commission is the California “agency charged with adjudicating
FEHA enforcement actions and interpreting FEHA by regulation.” Green
v. State, 165 P.3d 118, 128 (Cal. 2007); see also Cal. Gov. Code
§ 12935(a).
996 FAIR HOUSING COUNCIL v. ROOMMATE.COM
constitutionality of FEHA’s applicability to such shared living
arrangements is both novel and difficult. Given that neither
the Fair Housing Councils nor Roommate addressed this issue
in their briefs, I would remand this issue to allow the district
court to hear from the parties and rule on this issue in the first
instance. Therefore, I respectfully dissent from Part IV of the
opinion.