Landlords Can’t Deny Housing to Unwed Couples

A sharply divided California Supreme Court ruled Tuesday that a landlord cannot refuse to rent to an unmarried couple on the grounds that it would violate religious beliefs.

By a 4-3 vote, the Supreme Court reversed a lower ruling and upheld the decision of the California Fair Employment and Housing Commission that Evelyn Smith of Chico violated state anti-discrimination laws. She declined to rent to Kenneth Phillips and Gail Randall after they told her they were not married, saying it would be a sin for her to rent to people having sex out of wedlock.

Four justices, led by Kathryn Mickle Werdegar, rejected Smith’s argument that her rights to religious freedom under the U.S. and California constitutions had been violated. Three of the justices in the majority also rejected Smith’s contention that her rights under the 1993 Religious Freedom Restoration Act had been violated.

Stanley Mosk, the fourth justice who voted against Smith, wrote a separate concurring opinion, saying that although he generally agreed with most of Werdegar’s opinion, he considered the 1993 statute unconstitutional and therefore did not need to even assess the merits of her claims under it.

California law specifically makes it unlawful for the owner of any housing unit to discriminate against any person because of that person’s marital status or to make any inquiry--written or oral--concerning marital status when renting a unit.

But Smith contended that those bans did not apply to unmarried couples who live together. Werdegar’s majority opinion specifically rejected that contention.

“In effect, the Supreme Court has ruled that a landlord may not impose a religious test as a condition of renting an apartment,” said Thomas F. Coleman, an attorney for the couple. “After today, landlords may no longer refuse to rent to tenants who do not conform their conduct to the religious beliefs of the landlords.”

Phillips and Randall said they were pleased that they had prevailed in a nine-year legal battle that began when Smith refused to rent them a a tree-shaded duplex in Chico. “Fantastic,” proclaimed Smith, who runs a landscape supply business in Chico.

“It’s definitely been worth it because this has far-reaching implications for other people, too,” said Randall, an administrative assistant at a real estate office in Davis.

Smith said she was “very disappointed” but that she felt she had a good chance of prevailing at the U.S. Supreme Court. Her attorney, Jordan Lorence of the conservative Alliance Defense Fund, based in Phoenix, said he would immediately seek Supreme Court review.

In its ruling, the California high court majority noted that the state law originally had been enacted in 1963 as the Rumford Fair Housing Act and amended in 1975 to specifically prohibit housing discrimination because of marital status. Moreover, the court stressed that a few months before the statute was amended, the California Legislature had repealed the laws criminalizing private sexual conduct between consenting adults.

Werdegar’s opinion cited earlier California Supreme Court rulings, including a 1982 case upholding a decision that the owners of a duplex had violated state law when they rescinded a rental agreement after learning that a couple were not married. “In the ensuing 13 years, no court has suggested the statute should be interpreted differently,” she wrote.

The majority also spurned Smith’s contention that requiring her to rent to Smith and Randall violated her rights under the federal Religious Freedom Restoration Act of 1993. That law provides that government “shall not substantially burden a person’s exercise of religion” unless it can be demonstrated that there is a compelling state interest and there is no less restrictive means of furthering that interest.

The majority said there was no serious question that Smith’s Christian beliefs are religious and that she holds them sincerely. But it added that “Smith’s religion does not require her to rent apartments, nor is investment in rental units the only available income-producing use of her capital.”

In her dissent, Justice Joyce Kennard said the majority was placing an undue burden on Smith’s free exercise of her religious beliefs. Kennard also suggested that California officials had failed to carry their burden of “showing that eliminating housing discrimination against unmarried heterosexual couples is a compelling interest of the same high order as, for instance, eliminating racial housing discrimination.”

Justice Marvin Baxter, joined by Chief Justice Malcolm Lucas, wrote in a separate dissent that the case should be reexamined under the 1993 Religious Freedom Act.

Smith’s attorney said he was particularly disturbed by the majority’s suggestion that she could make money another way.

“For the majority to suggest that she can sell her townhouses and just reinvest the money and live off the investment income is like Marie Antoinette telling French peasants they can ‘eat cake,’ ” Lorence said.