Gilad Erdan, Israel’s Minister of Strategic Affairs, made a statement denouncing the decision as “discriminatory” against Israeli citizens, and asked why Airbnb wasn’t focusing on other geographic areas of conflict. Others, including the pro-Israel American lobbying group AIPAC, made similar statements.
But one group of Jewish-Israeli property-owners and those American Jews who wish to rent from those listings went further, filing a lawsuit in federal court. They did so using a perverse weapon: The Fair Housing Act.
By using the FHA to contest Airbnb’s decision, this group is misapplying a pivotal piece of integrationist legislation in furtherance of segregationist ends. In doing so, they seek to force a U.S. court to give its seal of approval to segregated housing in another continent in admittedly disputed territory.
The Fair Housing Act, passed as part of civil rights legislation in 1968, makes it illegal to deny access or participation to a business or service relating to housing rentals, among many other things.
The Plaintiffs claim that delisting Israeli settlements in the West Bank harms the housing prospects of the persons listing and renting property in Jewish settlements through Airbnb, and, therefore, claim that Airbnb’s action discriminates against Jews and Israelis on the basis of their race, religion and national origin.
Because the delisting process does not affect rentals outside of Jewish settlements in the West Bank, the theory goes, Airbnb is treating Jews differently from Palestinian Muslims or Christians renting property in other areas of the West Bank.
The lawsuit is a perversion of the purpose of the FHA.
The FHA was enacted to “provide…for fair housing throughout the United States.”
President Lyndon Johnson, during the first attempted passage of the FHA, noted that the FHA was an “instrument of justice” in abolishing the scourge of racial discrimination against African-Americans who were denied “a decent place to live.”
During final debate on the legislation, Emanuel Celler, a Congressman from New York, noted that de-facto racial segregation of African-Americans in housing was his ultimate reason for supporting the FHA, and thought that the legislation would help “level the ghetto off.”
Although the legal question of whether disputes involving real estate outside of the United States may also be subject to the FHA can only be resolved by the courts, you do not need to be a lawyer to understand that the history shows that fair housing “throughout the United States” clearly referred to real estate inside the United States at the time that the FHA was enacted.
But the Plaintiffs aren’t claiming that the lawsuit involves even an inch of housing within the United States.
Rather, they are arguing that their extra-territorial real estate, some of which is quite large and can hold 75-person events, can no longer serve as a profitable business model.
Fair enough. What about those who seek to rent listings in West Bank settlements? As the Complaint explains, that subset of Plaintiffs mostly lives in the United States.
Unlike the G.I.’s who returned home after Vietnam and could not find a single place to live due to discrimination, these Plaintiffs are Americans who want a second place to hang their hat, either through a short-term vacation rental or a long-term rental. This is not the type of immediate crisis that triggered the drafting of the FHA.
Israel, the international community and Airbnb all agree that the West Bank is disputed territory.
It cannot then be factually wrong for Airbnb to refer to a subset of the West Bank as “disputed”, even if Israel disagrees with the conclusion that the West Bank is “occupied.”
At the same time, Airbnb also stated that it has not delisted rentals in East Jerusalem or the Golan Heights.
Against this background, it is impossible to deny that Airbnb is permitting Jewish Israelis to list rentals in hotly-disputed territories either annexed (the Golan Heights) or claimed by Israel (East Jerusalem).
Like it or not, this lawsuit is not about Jews or Israelis being treated differently as a class: It is about Airbnb examining those specific West Bank settlement listings — like it did with listings in disputed Crimea — and concluding that the listings contributed to existing human suffering and or had a direct connection to the larger regional dispute.
If Airbnb wanted to discriminate against Jews or Israelis, it picked the absolute weakest way of doing so; delisting Ra’anana or Florentine would have been exponentially more effective.
But don’t take my word for what the case is about or why the Plaintiffs are actually litigating Airbnb’s decision. One of the Plaintiffs lamented that “I think it’s crazy that I’m taken off their site, yet Muhammad in the next town over can continue to list his house in ‘Bethlehem, Palestine.’”
That’s factually accurate, and he (unintentionally) makes Airbnb’s ultimate point, which is that “Muhammad” cannot waltz into Tekoa and find a willing seller of an apartment so that he too can earn income off of Tekoa’s splendid views.
None of this is to say that a small number of Jewish-Israelis are wrong when they say they’re being treated differently from others in the Palestinian West Bank; it’s just that they’re wrong about why they’re being treated differently by Airbnb.
While the FHA was almost certainly never intended to navigate complex international political questions concerning military occupation or disputed territories outside of the United States, it definitely was never intended to advance a system of racial or ethnic segregation in housing.
Independent of the court’s eventual determination of the legal issues, the Plaintiffs’ use of the FHA will always be profoundly inappropriate. Because sometimes, you can only bend the law so far before it breaks.