Is the inability to marry a marital status? Levin v. Yeshiva University and the intersection of sexual orientation and marital status in housing discrimination.

• Author: Kravis, Andrew

Imagine that you are a lesbian attending graduate school in a state that has not legalized same-sex marriage. Your school offers university housing, but it has a policy that restricts housing to students, their spouses, and their children. You apply for couples' housing for yourself and your partner of five years. The school rejects your application, stating that you and your partner are not eligible for married couples' housing because you are not married to each other.

Do you have a legal claim of housing discrimination? And if so, on what theory?

The answers to these questions are still unsettled. This Article defines marital status discrimination and sexual orientation discrimination in the housing context, and it explores how courts have applied two inconsistent and philosophically distinct standards in determining whether such discrimination has occurred. While analysis of marital status and sexual orientation in the housing context is highly fact-specific, the judicial approach to these issues has led to the confusion and conflation of sexual orientation discrimination and marital status discrimination. In their attempts to disentangle the intersection of sexual orientation and marital status, courts have all but admitted that refusing gay and lesbian couples the right to marry constitutes sexual orientation discrimination under a disparate impact theory.

This Article also posits that when an unmarried same-sex couple is denied a housing opportunity, the discriminator's motivation is not always clear. The discriminator may simply deny discriminating altogether, or alternatively may justify his or her actions in one of two ways: either he or she discriminated because the couple was unmarried or because they were presumably not heterosexual. Where state law provides protections for only one of these classes (either unmarried persons or non-heterosexuals) or for neither, unmarried same-sex couples are subject to the whims of discriminatory pretext. Because the Fair Housing Act does not protect against either sexual orientation housing discrimination or marital status housing discrimination, state law governs these cases, and thus housing providers in the thirty-five states that protect only one or neither of these statuses avoid legal consequences for their discrimination by recharacterizing the facts to fit the permissible form of discrimination.

Next, this Article briefly examines the most recent attempts to provide federal protections against both sexual orientation housing discrimination and marital status housing discrimination, and it discusses the implications of those protections. Finally, the Article is supplemented with an appended table that illustrates two original fifty-state surveys, detailing which state housing laws protect against marital status discrimination and which states protect against sexual orientation discrimination, complete with citations to the relevant provisions in each state's housing code. The table also provides information on which states issue marriage licenses to same-sex couples, which states recognize out-of-state same-sex marriages, which states grant the rights and benefits of marriage to instate domestic partnerships and civil unions, and which states grant the rights and benefits of marriage to out-of-state domestic partnerships and civil unions. Analysis of how those rules of recognition affect this intersection is beyond the scope of this Article--although it is an important observation that only the exceptional same-sex couple would seek a marriage, a domestic partnership, or a civil union solely to foreclose any potential housing discrimination against them.

1. Key Terms: Defining the Intersection Between Marital Status Discrimination and Sexual Orientation Discrimination

   To better understand how sexual orientation discrimination and marital status discrimination intersect, it is helpful first to provide some context and answer some basic overarching questions.

   1. What Is Marital Status Housing Discrimination?

      Title VIII of the Civil Rights Act of 1968 (the Fair Housing Act) does not protect against housing discrimination on the basis of marital status. (1) Twenty-one states and the District of Columbia have amended their state housing laws to explicitly protect against marital status discrimination, (2) as have a number of cities and municipalities. But what constitutes marital status discrimination varies widely across jurisdictions, even those using the same common law modes of statutory interpretation. Two main theories of marital status discrimination have more or less crystallized: what scholar John Beattie calls the "narrow view" and the "broad view." (3)

      Under the narrow view, marital status discrimination occurs only when an individual is treated differently because of his or her individual status as single, married, divorced, separated, or widowed. (4) Courts adopting the narrow view, then, only strike down a policy if it would disadvantage every individual of a particular marital status. State courts have adopted the narrow view in non-housing contexts, including anti-nepotism policies in employment. Responding to a challenge of Pizza Hut's policy preventing spouses from working together, the New York Court of Appeals took the narrow view of New York state law's protection against marital status discrimination, writing:

      The plain and ordinary meaning of "marital status" [in Executive Law [section] 296] is the social condition enjoyed by an individual by reason of his or her having participated or failed to participate in a marriage.... [W]hen one is queried about one's "marital status", the usual and complete answer would be expected to be a choice among "married", "single", etc., but would not be expected to include an identification of one's present or former spouse and certainly not the spouse's occupation. (5) The court used that definition to uphold Pizza Hut's decision to fire an employee whose husband also worked there, under the rationale that the decision was made not on the basis of the employee's "marital status" (i.e., that she was married) but rather to whom the employee was married (i.e., that she was married to an employee of Pizza Hut). (6) Had the basis of the discharge been solely her status as married, or so the argument goes, then all married employees would have been affected by the policy.

      While a minority of courts limit the narrow interpretation to anti-nepotism cases, (7) most courts that adopt the narrow view apply it to the housing context as well. These cases may involve, for example, unmarried couples being turned down for housing that is available (sometimes exclusively) to married couples, (8) or a tenant being evicted when he or she seeks to live with someone to whom he or she is not married. (9) The narrow view holds that housing discrimination occurs only when an individual is denied a housing opportunity because of his or her status as single, married, etc. So when an unmarried couple is turned down for couples' housing, a narrow-view court will view the couple as two individuals with the status "single" or "unmarried." This premise allows the court to conclude that the applicants were not discriminated against because the challenged policy does not affect all unmarried applicants, just the unmarried applicants who choose to live with someone outside of marriage. (10)

      As Beattie notes, if narrow-view courts were to consider the unmarried couple a family unit carrying its own marital status, "they would have to conclude that 'married-only' housing ... [constitutes] marital status discrimination because it disadvantages all couples having a particular marital status." (11) Instead, courts adopting this approach focus only on the individual unmarried plaintiff, declining to compare similarly situated married and unmarried couples. As a consequence, under this interpretation the prohibition against marital status housing discrimination provides protection in only one scenario: an individual denied housing for the sole reason that the individual is married or unmarried.

      Under the broad view, however, a court will find marital status discrimination if the decision in question was based even in part on a person's marital status. (12) Courts adopting the broad view likewise hold that the identity of one's partner may be considered when deciding if a policy is unlawfully discriminatory. (13) This leads to broad-view courts scrutinizing policies that implicate marital status, such as anti-nepotism policies, more closely, invalidating those policies if they affect even a portion of the class.

      For example, in Ross v. Stouffer Hotel Co., (14) the plaintiff was discharged from his job as a resort's massage therapist after he married a coworker (the head massage therapist at the resort). (15) The Supreme Court of Hawaii found that implicit in its state's protection against marital status discrimination is a guarantee of protection from discrimination based on whom one marries:

      [W]hen a person marries, it is always to a particular person with a particular "identity." One does not "marry" in some generic sense, but marries a specific person. Thus, the "identity" of one's spouse (and all of his or her attributes, including his or her occupation) is implicitly subsumed within the definition of "being married." The two cannot be separated. It makes no sense, therefore, to conclude, as the dissent does, that an employer who discriminates based on the "identity and occupation" of a person's spouse is not also discriminating against that person because he or she is married. An employer can't do one without the other. Stated otherwise, a no-spouse [anti-nepotism] policy, by definition, applies only to the class of married persons. Consequently, when an employer discharges an employee pursuant to such a policy, it necessarily discriminates "because of ... [the employee's] marital status." (16) An anti-nepotism policy, then...