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State attorney general's office agrees to pay Realtors $64,000 for costs in fighting legislation seeking to address discrimination

Attorney General Ellen Rosenblum has conceded that Oregon's first-in-the-nation ban on "love letters" in real estate transactions, a state law that took effect Jan. 1, was unconstitutional.COURTESY PHOTO: CINDY THACKERY - John L. Scott Real Estate put this house up for sale recently in the Portland area.

Rosenblum agreed this month to pay back the Realtors $64,069.15 for the real-estate agents' attorneys fees and filing costs in fighting the legislation.Rep. Mark Meek

Love letters from prospective buyers could sway a home seller to choose a particular buyer based on religion and sexual orientation, and often these letters contain photographs of potential buyers that reveal the buyers' race. Typical statements in love letters might say something like, "My wife and I would love to buy your house because it's walking distance for our kids to school and the church we attend with their grandparents."

Oregon is credited with igniting a national debate among real estate agents about preventing Fair Housing Act violations during real-estate sales.

Oregon didn't ban the love letters exactly, which would have violated free-speech rights by preventing someone's ability from writing or sending such a letter; the bill banned Realtors from forwarding letters that are potentially discriminatory to homeowners. Under the bill, a prospective homebuyer could still send a love letter directly to the homeowner.

In March, a federal judge put an initial stop to the love-letter ban, and the reversal of Oregon's attorneys on the issue means that the state won't seek to reverse the injunction in federal appeals court.

A legislative counsel had helped draft the bill, and assistants to Oregon's attorney general had argued for the constitutionality of the ban. But now the state attorneys are agreeing to a permanent stop on enforcing the bill.

Pacific Legal Foundation attorney Daniel Ortner, who represented Total Real Estate Group and other real estate brokers in stopping the bill, said his clients can now operate their businesses and facilitate communication between prospective homebuyers and sellers freely, without fear of legal consequences.

"The state of Oregon clearly recognized that it could not justify its ban on sharing information that helps sellers find the best buyer for their home," Ortner said. "Other states considering similar unlawful policies should stop attempts to ban love letters and instead protect freedom of speech and economic opportunity."

But U.S. District Judge Marco A. Hernández provided a path forward for Oregon passing a new love-letter ban and the sponsor of last year's legislation, state Rep. Mark Meek, D-Gladstone/Oregon City, has pledged to bring the issue back. Meek said that he's "getting back to the drawing board to bring something fair and constitutional."

State lawmakers "could have addressed the problem of housing discrimination without infringing on protected speech to such a degree," Hernández wrote.

According to late 2019 official statistics, 65% of white people in Oregon owned homes, compared with Black/African Americans at 32.2% and 40.8% for Hispanic/Latino groups.

Hernández wrote that real estate agents' suggestion to "do nothing" is not a legitimate alternative to a love-letter ban, when the evidence shows housing discrimination is an enduring societal problem.

"Greater enforcement is also not particularly persuasive. The record shows that discrimination in housing has persisted despite the passage of local, state and federal prohibitions," he wrote. "Requiring real estate agents to redact love letters is a more precise tool to address the government's interest."

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