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“Challenges to the constitutionality of any law must be grounded in real harm, not speculation about scenarios that likely will never come to pass.”
On a chilly winter morning in upstate New York, Gina opens the email she’s waited years to receive: she has finally been awarded a Housing Choice Voucher, commonly known as Section 8. The voucher guarantees that most of her rent will be paid directly to a landlord.
For Gina, this is a lifesaver—her family will be able to stay housed, rather than becoming another statistic in New York’s homelessness crisis. But within weeks, that promise begins to unravel. Landlord after landlord turns her away. “We don’t take vouchers,” she’s told; others simply stop responding. Gina has only a few months to find an apartment before the voucher expires.
If she fails, the opportunity disappears. New York’s landmark Human Rights Law was explicitly designed to prevent this outcome. It ensures that voucher holders have a fair chance of securing housing by prohibiting discrimination based on lawful source of income, including rental assistance. Without these safeguards, Gina’s family and others with rental assistance would be routinely locked out of the rental market.
Yet that protection now hangs in the balance, threatened by two lower court rulings that are untethered to the law, based on hypotheticals, and ignore constitutional safeguards afforded to landlords. On Tuesday afternoon, the highest court in New York State will hear arguments in People v. Commons West, LLC, a case that began when New York State Attorney General Letitia James sued an Ithaca landlord for allegedly refusing to rent to tenants with vouchers.
In 2023, a trial court dismissed the case, declaring New York’s source of income protections for renters with Section 8 “facially unconstitutional.” The court’s reasoning rested on the hypothetical that landlords who rent to voucher holders might be subjected to warrantless government inspections, a hypothetical that has yet to come to fruition.
The fact is that the landlord in the case has never been subjected to a warrantless search, never been threatened with one, and never been penalized for refusing one. This is because nothing in the state’s existing anti-discrimination law mandates inspections, either warrantless or otherwise, and there exists no mechanism in existing law that automatically penalizes landlords for declining them.
Challenges to the constitutionality of any law must be grounded in real harm, not speculation about scenarios that likely will never come to pass. If speculation were the burden of proof, this reasoning would place countless civil rights protections at risk.
Housing vouchers are among the most effective tools for preventing homelessness, yet demand far outpaces supply. In New York City alone, more than 600,000 people applied for vouchers in a single year; only about 200,000 were selected. In Buffalo, the waitlist is closed but may reopen this year.
Gina’s story may be hypothetical, but for six leading New York fair housing organizations—CNY Fair Housing, the Fair Housing Justice Center, Housing Opportunities Made Equal, Long Island Housing Services, Westchester Residential Opportunities, and Legal Assistance of Western New York—who filed an amicus brief in this case and work on the front lines of housing discrimination, it reflects a reality they encounter every day.
The danger posed by the lower court’s ruling is real. The Court of Appeals has the chance to restore New York’s source of income protections and keep the promise of fair housing from slipping away.
Diane L. Houk is a partner at Emery Celli Brinckerhoff Abady Ward & Maazel LLP and counsel representing the six organizations as amici in this case.