Paul Desilets and his wife Louise own 23 apartment units in Turners Falls, Massachusetts. The Desiletses are devout Roman Catholics who try to live according to their beliefs. Louise, for example, directs Sunday school at Our Lady of Czestochowa Church and works as a hospice visiting nurse, comforting dying patients. The Desiletses believe that renting an apartment to an unmarried couple would violate Catholic doctrine by facilitating fornication.1 Paul told the Seattle Times that ‘‘allowing fornication to occur on property I own places my eternal soul at risk.’’2
The Desiletses’ lives changed the day Cynthia Tarail asked Paul about renting an apartment she intended to share with her boyfriend, Mark Lattanzi. According to Tarail, Paul asked if she intended to marry Lattanzi. When she replied that she was unsure, he told her, ‘‘Then you’d be living in sin, and we don’t go for that. Don’t you know it’s a criminal act to cohabitate and fornicate?’’3 Paul acknowledges that he rebuffed Tarail but claims he politely informed her of his policy against renting to unmarried couples.
The couple filed a complaint with the Massachusetts Commission Against Discrimination, alleging discrimination on the basis of marital status, and the state attorney general filed suit against the Desiletses. Tarail, a graduate student in social work, described her politics as ‘‘very left.’’ ‘‘I’m a feminist and a socialist,’’ she told the Boston Herald , ‘‘and our motivation here is not to stick up for unmarried couples but for tenants’ rights. We believe strongly that housing is a right, not a privilege.’’4 Lattanzi, a local coordinator for an anti-housing discrimination organization, expressed his disgust that ‘‘the Desilets seem to think their religious beliefs allow them to discriminate.’’ ‘‘Housing is a commodity, like anything else,’’ Lattanzi told the media.5 Paul Desilets responded, ‘‘Must everything today come down to strictly economic terms, the lowest common denominator? Can’t we raise our sights and deal with larger issues? We have laws that say I can’t smoke in a public building, but people are allowed to fornicate on my property. Don’t I have rights, too?’’6
The trial court held that the Desiletses had violated the Massachusetts fair housing law, but found that the state constitution’s protection of religious freedom from government interference precluded enforcing the statute against them. When the case was appealed to the state supreme court, three of the seven justices voted to affirm the lower court’s ruling. In dissent, they argued that ‘‘[n]either the court nor the Legislature can constitutionally give preference or priority to a so-called ‘right’ of cohabitation over the . . . guarantees of the free exercise of religion.’’7
A four-justice majority, however, sent the case back to the trial court for further consideration of whether the fair housing statute could properly infringe on religious liberty. The majority opinion acknowledged that the statutory rights of Lattanzi and Tarail were of a ‘‘lower order’’ than the constitutional rights of the Desiletses, and the court strongly hinted that it expected the lower court to once again rule in the Desiletses’ favor. The supreme court stated, for example, that it could not conclude that the ‘‘simple enactment of the prohibition against discrimination based on marital status’’ established that the comonwealth had a compelling interest in ending such discrimination.8 The majority added that to find for the state on remand, the lower court would need to find that Massachusetts had a specific compelling interest not just in combatting discrimination in general, but also ‘‘in the elimination of discrimination in housing against an unmarried man and an unmarried women who have a sexual relationship’’ and wish to rent housing together. The Massachusetts attorney general’s office read between the lines and dropped the case, purportedly for lack of resources, but it warned that it reserved the right to prosecute other landlords who refused to rent to unmarried couples for religious reasons.9
The Desilets case is one of several in which unmarried heterosexual couples, hardly a beleaguered minority group, have charged religious landlords with discrimination for refusing to rent to them. Columnist George Will calls this ‘‘the latest twist in the trivialization of the ‘civil rights’ movement.’’10 In fact, as the Desilets case illustrates, these cases represent an even worse phenomenon—the use of antidiscrimination laws as a weapon in the ‘‘culture wars’’ between the secular left and the religious right.
While their case was being decided by the state supreme court, Lattanzi and Tarail married, but they declined to drop their claim. They told the media, ‘‘Some people have said, ‘If you’re getting married, what’s the big deal.’ But that’s not the issue. We don’t want people telling us we have to be married. We want to be married when WE want to be.’’11 This suggests that the couple’s underlying complaint was not that they were denied needed housing, but that the Desiletses dared to disapprove of their living arrangements and had acted on that disapproval. The goal of Lattanzi, Tarail, and other cohabitating couples who sue religious landlords seems to have less to do with combating invidious discrimination—because unlike, say, African Americans in the 1960s, these couples can almost always find alternative housing quite easily—and more to do with trying to punish religious conservatives for refusing to accommodate liberal secular values. It is not so much a case of ‘‘you’ve prevented me from finding a place to live,’’ as it is a case of ‘‘you’ve acted in a politically incorrect way and now you’re going to pay.’’
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Anchorage, Alaska, landlord Tom Swanner lost his free exercise claim when he faced marital status discrimination charges for refusing to rent to three unmarried couples. After both a hearing examiner and a trial court ruled against Swanner, he appealed to the state supreme court.12 The court found that the verdict against Swanner could be upheld only if the state could demonstrate a compelling interest sufficient to overcome Swanner’s free exercise rights.13 Swan-ner insisted that Alaska’s interest in prohibiting discrimination against unmarried couples could not possibly be compelling, given that the state itself discriminated in favor of married couples in a variety of other contexts. The court disagreed, ruling that ‘‘[b]ecause Swanner’s religiously impelled actions trespass on the private right of unmarried couples to not be unfairly discriminated against in housing, he cannot be granted an exemption from the housing anti-discrimination laws.’’ The circularity of this reasoning is evident; the court essentially reasoned that statutory antidiscrimination rights override free exercise rights because . . . they do. The court ordered Swanner to pay $1,000 plus all of the plaintiffs’ legal costs.
The U.S. Supreme Court declined to review the case, sparking a vigorous dissent from Justice Clarence Thomas.14 At the time, the Religious Freedom Restoration Act, later invalidated as to its applicability to the states by the Court on constitutional grounds (see Chapter 9), suggested that Swanner had a federal statutory right to discriminate on the basis of religion unless the government could show it had a compelling interest in quashing the discrimination. Thomas wrote that ‘‘if, despite affirmative discrimination by Alaska on the basis of marital status and a complete absence of a national policy against such discrimination, the State’s asserted interest in this case is allowed to qualify as a ‘compelling’ interest—that is, a ‘paramount’ interest, an interest ‘of the highest order’—then I am at a loss to know what asserted governmental interests are not compelling.’’
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Few laws explicitly protect unmarried couples from housing discrimination.15 Some jurisdictions do ban discrimination on the basis of marital status, but this bar was intended to aid recently divorced women who sometimes find it difficult to find housing because they have not established their own credit histories. Such bans on discrimination based on marital status arguably do not apply to landlords who willingly rent to single individuals but not to unmarried couples. After all, landlords who refuse to rent only to unmarried couples are not discriminating on the basis of the prospective tenants’ marital status—such landlords would be perfectly willing to rent to these same prospective tenants individually—but on the basis of what the landlords perceive as immoral conduct .16
Several courts have nevertheless held that laws prohibiting marital status discrimination protect unmarried couples. The Minnesota Supreme Court is a rare but welcome exception. Layle French of Marshall, Minnesota, bought a new house for his family. Rather than selling his previous residence right away, he decided to rent it out until the real estate market picked up. He found a couple interested in the house and agreed to rent it to them, but then reneged on the agreement when he discovered that they were not married. French, a Sunday school teacher at a conservative Lutheran church, believed that premarital sex is a sin and that renting his house to an unmarried couple would aid in the commission of that sin or would at least create ‘‘the appearance of evil.’’ The rejected couple hired an attorney.
The state filed suit against French after the couple’s attorney complained that French had ‘‘illegally attempted to enforce his religious prejudices concerning marital status on the marketplace,’’ and was thus ‘‘guilty of violating the couple’s civil rights.’’ French recognized that he was a combatant in the culture wars. ‘‘They’re pretty consistent in telling us that we can’t push our religion on somebody else,’’ French remarked, ‘‘Meanwhile, they are trying to push their beliefs on us.’’17 An administrative law judge found that French had violated the Minnesota Human Rights Act and fined him over $1,000. In a four-to-three decision, the state supreme court reversed, holding that the act’s prohibition on discrimination based on marital status did not extend to discrimination against unmarried heterosexual couples.18
Even if a fair housing law does protect unmarried heterosexual couples from discrimination, landlords may still have a federal or state constitutional right to follow the dictates of their consciences. As discussed previously (see Chapter 9), under federal constitutional precedent a religious believer usually cannot claim a free exercise exemption from general laws that happen to impinge on his religious beliefs. A three-judge panel of the Ninth Circuit Court of Appeals, however, held that fair housing laws that impinge on landlords’ religious beliefs are an exception to this rule, because the laws also impinge on associational freedoms and property rights.19 The Ninth Circuit noted that the Supreme Court has held that when a litigant asserts a ‘‘hybrid’’ constitutional defense that joins a free exercise claim with an assertion of other constitutional rights (such as those protecting property and association), the law in question cannot be enforced unless it serves a compelling governmental interest. The Ninth Circuit panel concluded that there ‘‘is simply no support from any quarter for recognizing a compelling government interest in eradicating marital-status discrimination.’’20 The court, therefore, held that a landlord has a constitutional right to refuse to rent to unmarried couples for religious reasons. An opportunity to see whether the Supreme Court agreed with the panel’s ruling was lost when the full Ninth Circuit reversed the panel’s opinion on procedural grounds.21
Regardless of federal precedents, many state courts interpret their state constitutions as requiring them to apply the compelling interest test to general laws—including fair housing laws—that impinge on religious freedom. Three members of the majority in the French case, discussed earlier, stated that even if the statute applied to unmarried couples, French’s right to exercise his religion under the freedom of conscience provision of Minnesota’s constitution outweighed any interest of potential tenants to cohabitate before marriage.
The three dissenters, however, concluded that combating any type of invidious discrimination in housing is an overriding compelling state interest that trumps religious freedom. They justified this view on the grounds that ‘‘housing is a basic human need regardless of a person’s personal characteristics’’ and ‘‘an individual’s marital or familial status . . . is irrelevant to . . . renting a house, because it bears no relation to the individual’s ability to participate in and contribute to society.’’ The dissenters, alluding to America’s history of racial segregation, accused the majority of advocating a return to the days of ‘‘separate but equal,’’ during which individuals could keep ‘‘undesirables’’ out of their neighborhoods. Demonstrating an incredible lack of perspective, the dissenters argued that discrimination against the unmarried is no less invidious than discrimination against African Americans. The court ignored the fact that being an unmarried couple is a lifestyle choice, not an immutable characteristic like race, and that unmarried couples have not suffered centuries of slavery and persecution. Moreover, since marriage is widely regarded to be beneficial to society and especially to children, discrimination against cohabitating couples, to the extent it encourages them to get married, may actually serve the public interest.
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But what happens when a court decides to focus on how hard it would be for the landlord to avoid discriminating rather than on how compelling the government’s interest is in ending the discrimination? The California Supreme Court gave the free exercise issue this interesting twist in a case involving Evelyn Smith, an elderly widow who owned two duplexes in Chico, California, and offered the four apartments for rent.22 Two tenants gave Smith, a devout Presbyterian, a rental deposit, claiming they were married. When Smith discovered the tenants had lied and were actually single, she returned the deposit. The couple sued and won $454 in compensatory damages and $500 for emotional distress.
On appeal, the state supreme court addressed Smith’s claim to a religious exemption. Instead of focusing on whether the government’s interest was compelling, the court applied a ‘‘substantial burden’’ test, stating that if the law imposed a substantial burden on Smith’s free exercise of religion, she would be entitled to an exemption. The court concluded that prohibiting marital status discrimination did not substantially burden Smith’s practice of religion because she could voluntarily avoid the conflict without sacrificing her religious beliefs and ‘‘without threatening her livelihood, by selling her units and redeploying the capital in other investments.’’ The court, while still purporting to apply the substantial burden test, then disingenuously slipped in other considerations. It found that requiring a landlord to rent to unmarried couples is a relatively insubstantial burden on the landlord’s religious freedom because allowing the landlord to rent only to married couples would affect the rights of third parties (that is, the unmarried couples who could not rent). The court did not, and obviously could not, explain how a burden on free exercise somehow diminishes merely because third parties are affected.
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State supreme courts seem to be growing less sympathetic to discrimination claims by cohabiting couples. In 1997, the Illinois Supreme Court summarily reversed a lower court ruling that a religious landlord had no constitutional right to discriminate against an unmarried cohabitating couple.23 The lower court had found that the government’s compelling interest in eradicating discrimination trumped the landlord’s free exercise rights.
An even more dramatic reversal occurred in Michigan. Plaintiffs Kristal McCready and Keith Kerr, a cohabitating couple, had sought to rent an apartment from landlord John Hoffius, but he refused them as tenants for reasons of religious conscience. McCready and Kerr soon found another apartment, but they nevertheless filed suit in state court against Hoffius for marital status discrimination. The trial court ruled in Hoffius’ favor, finding that the legislature could not possibly have meant to include unmarried couples in the class of people protected under Michigan’s fair housing law, because cohabitation remained officially illegal in Michigan. Hoffius not only had the right to refuse to rent to McCready and Kerr, he could have reported them to the police. The state court of appeals affirmed.24
The Michigan Supreme Court, however, reversed, noting that the state anti-cohabitation law had not been enforced for decades. The court added that to the extent requiring Hoffius to rent to unmarried couples infringed on his free exercise rights, the infringement was justified under the compelling interest test, the applicable test under the Michigan constitution.25 Instead of engaging in an independent review of whether combating housing discrimination against unmarried couples is a compelling interest, the court deferred to the state legislature. The court explained that the compelling interest test was satisfied because ‘‘[t]he Michigan Legislature has determined that the need for housing is so fundamental as to necessitate the passing of the Civil Rights Act.’’ Meanwhile, Hoffius’s ‘‘fundamental’’—and constitutionally protected—right to exercise his religious beliefs got short shrift. If Hoffius did not want to obey housing discrimination law, the court admonished, he should get out of the real estate business.
The court ordered the case remanded to the trial court for a trial to determine damages. McCready and Kerr, who had suffered no monetary damages and who were comfortably installed in another rental unit, claimed to be suffering from ‘‘emotional distress’’ because Hoffius had refused to rent to them. Hoffius was also potentially liable for the couple’s attorneys’ fees, which totaled more than $30,000. Before the damages case could be heard in the trial court, however, Hoffius filed a motion for rehearing. In the meantime, an election cycle had passed and new justices had joined the supreme court, including two justices who had decided in favor of Hoffius when they were lower court judges. Hoffius was in luck (or perhaps his prayers were answered). The supreme court granted the motion for rehearing and reversed its earlier ruling without published discussion.26
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In the late 1990s, judicial decisions holding that landlords could refuse to rent to unmarried couples on religious grounds destroyed a broad coalition, ranging from religious conservatives to liberal civil liberties groups, that was seeking to enhance legislative protections for religious liberties. The coalition had been lobbying for congressional passage of a successor to the Religious Freedom Restoration Act, the Religious Liberty Protection Act, which would have evaded prior Supreme Court decisions and required courts to apply a compelling interest test when laws infringed on religious liberty. But some liberal groups, most prominently the American Civil Liberties Union, were appalled by the decisions upholding landlords’ free exercise rights despite the government’s assertion of its ‘‘compelling interest’’ in preventing discrimination.
The ACLU and other prominent civil libertarian groups supported the RLPA in principle. ACLU legislative counsel Christopher Anders testified in Congress that the RLPA would correct erroneous Supreme Court opinions that had construed the Constitution’s guarantee of free exercise of religion too narrowly.27 The ACLU nevertheless felt compelled to oppose the RLPA because its religious exemptions would inevitably extend to antidiscrimination laws. Anders expressed particular concern that recent case law suggested that the RLPA would permit religious landlords to evade laws requiring them to rent to unmarried heterosexual couples. He also worried that laws protecting homosexuals, and perhaps other groups, from discrimination would also be weakened to some degree by the RLPA.28 But Anders and the ACLU never answered the $64,000 question: Why does an organization purportedly devoted to civil liberties believe that the constitutionally protected right to free exercise of religion should be trumped by antidiscrimination laws?
The ACLU and its allies insisted that the RLPA be amended to exempt antidiscrimination laws from its scope, but conservative groups refused to compromise on this issue. Left-wing groups then abandoned the coalition, effectively killing the legislation. Nathan Diament, director of the Union of Orthodox Jewish Congregations of America’s Institute of Public Affairs, decried allegations by some coalition dropouts ‘‘that right-wing religious groups were supporting RLPA in order to further their political agenda.’’ Diament accused coalition defectors of being fair-weather friends of religious freedom, stating that ‘‘[t]he real test of religious liberty is kind of like the real test of free speech. You defend the right of people even if they’re politically incorrect. You really believe in religious liberty if you protect people whose religious views you disagree with.’’’29
Despite criticism from Diament and others, civil liberties groups are increasingly unwilling to defend religious freedom when the price is a narrowing of antidiscrimination laws. These groups tend to consider all antidiscrimination laws, even trivial laws like those banning discrimination against unmarried heterosexual couples, as more important than the right to free exercise of religion. After several liberal Jewish civil libertarian groups abandoned the pro-RLPA coalition because of concerns about its effect on antidiscrimi-nation law, an unhappy Marc Stern of the American Jewish Congress attacked their implicit idolatry: ‘‘The principle of equality is taking on a quasi-religious status,’’ he complained, ‘‘Maybe for some people questioning civil rights is like questioning God.’’30