The Right of Religious Landlords to Exclude Unmarried Cohabitants: Debunking the Myth of the Tenant's "new Clothes"

Publication year2021

77 Nebraska L. Rev. 494. The Right of Religious Landlords to Exclude Unmarried Cohabitants: Debunking the Myth of the Tenant's "New Clothes"

494

Michael V. Hernandez*


The Right of Religious Landlords to Exclude Unmarried Cohabitants: Debunking the Myth of the Tenant's "New Clothes"

TABLE OF CONTENTS


I. Introduction .......................................... 495
II. Statutory Analysis .................................... 500
A. Current State Laws Regarding Marital Status
Discrimination and Unmarried Cohabitants ........... 500
1. States Which Do Not Proscribe Marital Status
Discrimination................................... 500
2. Statutes Which Prohibit Marital Status
Discrimination but Explicitly Exclude
Unmarried Cohabitants from That Protection . .... 502
3. Statutes Which Generally Proscribe Marital
Status Discrimination but Do Not Specifically
Protect Unmarried Cohabitants ................... 502
a. Statutes Which Do Not Define "Marital
Status" ...................................... 502
b. Statutes Which Define "Marital Status" ....... 505
B. The Fundamental Issue: Does a Landlord
Discriminate Against Single Individuals by Not
Renting to Unmarried Couples?....................... 506

495

1. Purported Discrimination Against Single
Tenants and the Status/Conduct Distinction ...... 506
2. Statutes Prohibiting Marital Status
Discrimination Against "Persons" ................ 509
C. Public Policy Issues ............................... 510
1. Promotion of Marriage ........................... 511
2. Existing Prohibitions Against Fornication and
Cohabitation .................................... 512
3. The Effect of the Repeal of Fornication and
Cohabitation Statutes............................ 513
III. Police Power Issues ................................... 514
A. An Overview of the Principles Governing the State's
Police Power ....................................... 514
B. Circumstances Required to Justify Forcing
Landlords to Rent to Unmarried Couples ............. 517
IV. Constitutional Avenues to Strict Scrutiny Review ....... 523
A. Federal Free Exercise/Establishment Clause
Claims .............................................. 523
1. Overview of the Free Exercise Clause ............. 523
2. Limited Exemptions Which Do Not Protect
Religious Objectors .............................. 529
a. Free Exercise Clause-Neutrality/General
Applicability ................................. 530
b. Establishment Clause .......................... 531
B. Alternative Federal Constitutional Claims ........... 534
1. Free Speech ...................................... 536
2. Takings .......................................... 537
C. State Free Exercise Claims .......................... 539
1. Sincerely Held Religious Belief .................. 542
2. Substantial Burden ............................... 545
V. Strict Scrutiny Review ................................. 553
A. Compelling State Interest ........................... 553
B. Least Restrictive Means ............................. 560
VI. Conclusion ............................................. 564


I. INTRODUCTION

So the emperor went along in the procession, under the splendid

canopy, and everyone in the streets said: "How beautiful the emperor's

new clothes are! What a splendid train! And how well they fit!" No one

wanted to let it appear that he could see nothing, for that would

prove him not fit for his post. None of the emperor's clothes had been

so great a success before. "But he has nothing on!" said a little

child. "Just listen to the innocent," said the child's father. And one

person whispered to another what the child had said. "He has nothing

on. A child says he has nothing on!" "But he has nothing on," cried

all the people. The emperor was startled by this, for he had a

suspicion that they were right. But he thought, "I must face this out

to the end and go on with the

496

procession." So he held himself more stiffly than ever, and the

chamberlains held up the train that was not there at all.(fn1)

In Hans Christian Andersen's classic fable, the emperor expended all of his resources on new clothes, forsaking his governmental responsibilities and the more noble pursuits of life. His obsession with new attire made him susceptible to the tricks of two master weavers who professed to make the most exquisite clothes imaginable. These charlatans claimed their work was invisible only to fools. They tricked the emperor into spending an extravagant sum of money on their wonderful "clothes." The emperor's subjects raved about his new clothes, which he displayed in a grand procession. Finally, one child, not afraid to be considered foolish, exclaimed the truth that the emperor was naked.(fn2)

This fable is being played out in American landlord and tenant law. The Supreme Court of Alaska, a plurality of the Supreme Court of California, and the Supreme Court of Michigan have recently assumed the posture of the emperor.(fn3) Forsaking higher principles like protecting property rights, religious liberty and the sanctity of marriage, these rulers have myopically pursued the goal of forcing unmarried tenants on landlords who register a sincere religious objection to the tenants' conduct. The three courts based their decisions primarily on the premise that the state must stamp out all invidious discrimination, including, in this instance, "marital status" discrimination.(fn4) According to the Alaska Supreme Court, the state has a governmental interest in preventing discrimination "based on irrelevant characteristics" that "degrades individuals, affronts human dignity, and limits one's opportunities."(fn5) What rational person could possibly oppose such a noble goal and support invidious discrimination? Like the emperor's procession, these rulers have proudly brought out their "new

497

clothes" for all to see. Unlike the emperor, however, they have been pleased to share the clothes with any subject who wants them. Not surprisingly, many of the ruler's subjects have, with varying degrees of enthusiasm, advocated or applauded this minority trend in the law.(fn6)


As The Emperor's New Clothes teaches, the mere fact that numerous people affirm a naked assertion does not make it true. It is often difficult to disprove an idea that has gained a measure of acceptance, particularly when those who have a political or personal interest in the proposition espouse intricate theories in its support. So it is with the notion that a landlord's refusal to rent to unmarried cohabitants

498

constitutes marital status discrimination that cannot be excused even when the landlord acts on a sincere religious belief. The proponents of this new "right" for tenants have offered elaborate justifications for it, and recent decisions of the highest courts in Alaska, California, and Michigan show that these advocates have achieved a measure of success, (fn7) although most courts that have addressed this issue do not share their view.(fn8)


499

This Article explains why the "right" of unmarried cohabitants (fn9) to force themselves and their sexual ethics on objecting religious landlords is as illusory as the emperor's new clothes.(fn10) Part II demonstrates why, under well-established principles of statutory construction, the landlord's decision not to rent to an unmarried couple cannot constitute marital status discrimination unless the legislature has explicitly protected such couples. Because no statute currently provides this protection, landlords cannot presently commit marital status discrimination by refusing to rent to unmarried couples. Part III demonstrates that, even assuming these landlords do commit marital status discrimination, a statute which protects unmarried couples is an invalid exercise of the state's police power if there is no evidence that religiously-objecting landlords pose a sufficient threat to the ability of unmarried couples to obtain suitable housing. Part IV describes the numerous theories that landlords may use to obtain strict scrutiny review of any law which proscribes discrimination against unmarried couples. Part V analyzes the relative interests of the landlord and the state under strict scrutiny review and demonstrates that there are several reasons why a landlord who has a sincere religious objection to the law should be entitled to an exemption. Part VI provides some final observations.

500

II. STATUTORY ANALYSIS


A. Current State Laws Regarding Marital Status
Discrimination and Unmarried Cohabitants


Because there is no federal legislation prohibiting marital status discrimination, state and local law will govern disputes between landlords and unmarried couples.(fn11) There are currently no state laws that explicitly protect unmarried cohabitants from discrimination in housing. However, some state statutes generally proscribe "marital status" discrimination. The state laws governing landlord discretion in selecting tenants fall within three general categories: (1) those which do not prohibit marital status discrimination; (2) those which prohibit marital status discrimination but explicitly allow landlords to exclude unmarried cohabitants; and (3) those which prohibit marital status discrimination but do not explicitly protect unmarried cohabitants. As will be explained below, the first two approaches clearly offer unmarried cohabitants no protection from landlords who do not wish to rent to them. Although the third approach offers general protection from marital status discrimination, landlords do not violate these laws by refusing to rent to unmarried couples.

1. States Which Do Not Proscribe Marital Status Discrimination

Arkansas, Mississippi and Wyoming do not currently have a fair housing law. In twenty-five other states, the state...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT