Goldwater Asks U.S. Supreme Court to Protect Rights of Property Owners—And Renters

The Goldwater Institute today filed a brief urging the U.S. Supreme Court to review a lawsuit challenging a Seattle ordinance that bars landlords from asking renters whether they have a criminal record. The Ninth Circuit Court of Appeals found that the ordinance violates the First Amendment, but not the Due Process Clause of the Fourteenth Amendment—which means, essentially, that while landlords can ask renters if they have criminal records, they can’t refuse to rent based on that information.

As we point out in our brief, this makes no logical sense—and harms renters themselves, because laws like this force landlords to raise their security deposit and rent, and to require extensive credit checks, all of which makes it harder for people to find places to live. In fact, research shows that landlords who are deprived of information about a prospective renter’s criminal history often resort to less precise proxies for that information, including racial discrimination. Thus, after some places imposed “ban the box” rules that prohibited employers from asking about the backgrounds of job applicants, the result was that members of minorities found it harder to get jobs, not easier.

As a legal matter, the Ninth Circuit’s rationale makes no sense. For centuries, political philosophers and judges have recognized that one of the most essential attributes of ownership is the right to exclude people from one’s property. The Supreme Court has repeatedly called this a “fundamental” aspect of private property—and the Ninth Circuit admitted as much. Yet it went on to say that this right is not “fundamental” as far as the Due Process Clause is concerned. If you can make sense of that, you’re a better lawyer than me.

The Ninth Circuit’s decision is also blind to other important elements of private property. For example, landlords don’t just have the right to decide whether or not to let convicted criminals rent their property—they actually have an obligation to do so. In many states, landlords can be sued if they fail to take care in deciding who their tenants are, and the tenant commits a crime against someone. Worse still, civil asset forfeiture laws mean that a landowner can actually have his entire property confiscated if a tenant has contraband on the property. Depriving property owners of the right to choose their tenants puts these property owners at risk of punishment—while taking away their ability to avoid that punishment.

What’s more, the Ninth Circuit’s ruling ignores the rise of home-sharing. Nowadays, many property owners choose to rent out their own homes on a short-term basis to visitors from other places; this is something they have a right to do, and it’s legal in Seattle. The ordinance banning background checks actually doesn’t apply to these rentals (and ask yourself why that is…)—but only if the homeowner stays in the house at the same time. Otherwise, the law even deprives homeowners of the right to decide whether or not to let convicted criminals stay in their own beds.

We hope the Supreme Court takes up this case and sets the record straight: the right of a property owner to choose whom to rent to is a “fundamental” part of the property rights protected by the Due Process Clause of the Fourteenth Amendment.

You can read our brief here.

Timothy Sandefur is the Vice President for Legal Affairs at the Goldwater Institute.