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Sunday, August 13, 2006

A Quinquagenarian* Wonders...

The "The Way We Live Now" essay by Christopher Caldwell in this morning's New York Times Sunday Magazine raises an issue of discrimination that morphs together snippets of constitutionality, statutory and moral analysis, and I'm not sure to a sound conclusion. 

The subject is "age qualified" communities, not the kind in which I think my wife and I would want to live, even as empty-nesters (liking the diversity of organically developed neighborhoods), but to many of my superannuated peers, ones that might be to their liking.   The issue is the exception in the Fair Housing Act of 1988 (as amended):  the statutory prohibition on discriminating against families with children has an exception for developments in which 80 percent of the households have a person 55 or older, and the development must be billed as a "senior community" or "retirement community."

The author argues:

"I just want to be with people like me" is the argument made in favor of every kind of segregation.  It was not an unreasonable-sounding argument even when it was made by Alabamans and Boy Scouts and club men.  But it wasn't a winning argument either.  What explains our sudden readiness to make moral exceptions when children are the ones excluded?

Seems to me three different standards are conflated here.  To the constitutional scholars out there, has age ever been a suspect classification?  Clearly Congress has the power to pass legislation that bars discrimination that does not rise to a constitutional level.  And I'm not sure why the exclusion of children from a privately operated community that does not seek to take on the hallmarks of government deserves moral opprobrium.  I love my nieces and nephews of younger siblings, but "been there, done that" already, and I'm always happy that they go home with their parents.

Am I missing something?  I promise not to discriminate against vicenarians and tricenarians.


Posted by Jeff Lipshaw on August 13, 2006 at 10:23 AM in Constitutional thoughts, Culture, Current Affairs, Lipshaw | Permalink


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Not sure if the author of the article is a law guy, but I suspect not because he makes a pretty basic error, conflating what he calls "moral exceptions" and constitutionally invalid ones. Children aren't even a suspect class, after all, so that element of the FHA doesn't seem compelled by the Constitution and could be repealed if Congress wanted to OK children-exclusive housing developments.

Another thing that seems amiss about this piece (at least the quoted selection) is that sometimes "I want to be with people like me" is a winning argument. Despite what the author seems to assert (he doesn't cite Dale by name), the Boy Scouts prevailed when they made this claim about excluding homosexuals. Of course, that was an First Amendment/expressive association claim, not one about the equal protection clause or the FHA.

And that raises another twist: could the element of the FHA restricting discrimination against families be held invalid as applied to a housing development that was constituted for a group of people strongly committed to living child-free lives? There are actually groups for people who feel that not reproducing is a constitutive part of their life and identity. If these people wanted to live in a housing development that was explicitly devoted to creating a child-free setting, I wonder if it might be protected under Dale.

Regardless, there are of course all kinds of ways to make exceptions for membership in housing communities. Lior Strahilevitz has a great article about this on SSRN called "Exclusionary Amenities in Residential Communities" in which he lists the various ways that private housing developments determine their composition by offering or not offering particular features (golf courses, common recreation areas, basketball courts, gyms, etc.). If you wanted to limit the number of kids in your housing development, you could achieve that result regardless of the FHA by building it far from any schools and making it inconvenient for families (lots of one-bedrooms and studios, perhaps, as opposed to multi-room homes).

Posted by: Dave | Aug 13, 2006 5:25:33 PM

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