S.D.N.Y. Notes Split Re Standard for Evaluating the Validity of Facially Discriminatory State Statutes under FHA

Per Sierra v. City of New York, --- F.Supp.2d ----, 2008 WL 2036834 (S.D.N.Y. May 13, 2008):

The Second Circuit has not yet ruled on the appropriate standard for evaluating the validity of state statutes that are facially discriminatory under the FHA, and the Courts of Appeals that have considered the question are divided. The Eighth Circuit has subjected such statutes to “rational basis” scrutiny. See Oxford House-C v. City of St. Louis, 77 F.3d 249 (8th Cir.1996); Familystyle of St. Paul, Inc. v. City of St. Paul, Minn., 923 F.2d 91, 94 (8th Cir.1991). The Sixth, Ninth, and Tenth Circuits, by contrast, have applied more searching scrutiny. For example, the Ninth Circuit has held that facially discriminatory restrictions pass muster under the FHA only if the defendant shows either “(1) that the restriction benefits the protected class or (2) that it responds to legitimate safety concerns raised by the individuals affected, rather than being based on stereotypes.” Cmty. House, Inc. v. City of Boise, 490 F.3d 1041, 1050 (9th Cir.2007); see also Larkin v. State of Mich. Dept. of Soc. Servs., 89 F.3d 285, 290 (6th Cir.1996); Bangerter v. Orem City Corp., 46 F.3d 1491, 1503 (10th Cir.1995).