Religious Beliefs Upheld in Screening of Tenants

A sharply divided federal appeals court in San Francisco ruled Thursday that a landlord may refuse to rent to an unmarried couple if doing so would violate his or her religious scruples.

The U.S. 9th Circuit Court of Appeals ruled in a case from Alaska, but the 2-1 ruling would also apply to California and appears to override the state housing discrimination law as well as similar laws in several other Western state. The Alaska attorney general’s office said after the ruling that the state intends to ask a larger panel of the appeals court to reexamine the case.

The appeals court said that forbidding a landlord the freedom to discriminate in this fashion would violate the landlord’s constitutional right to free exercise of religious beliefs. The court also said that affording such protection to Anchorage landlords Kevin Thomas and Joyce Baker does not constitute an establishment of religion, which would also be a violation of the Constitution.

The sweeping decision was applauded by an attorney representing conservative Christian groups, who filed a brief in court supporting the landlords.

“Today is a victory for people of religious conscience of any stripe,” said attorney Steven T. McFarland of the Center for Law and Religious Freedom in Annandale, Va.

“I’m happy for religious citizens who now have a stronger handhold when they want to bring their religious convictions into the marketplace,” he added.

But on the other side of the nation’s political-cultural divide, the decision caused considerable dismay.

“If the court allows for such an open-ended exemption to civil rights laws” for unmarried couples, the precedent is likely to be extended further, said San Francisco attorney Clyde J. Wadsworth, who had filed a court brief in the case on behalf of the Lambda Legal Defense Fund, the nation’s leading gay civil rights law project.

“Lesbian and gay couples will be swallowed up by that exception by landlords who claim a religious exemption,” Wadsworth said.

The dissenting judge in the case voiced similar fears. The ruling’s “potential for harm will be seen when a landlord in this circuit refuses, on the basis of religious beliefs . . . to rent or sell housing to divorced individuals, interracial couples, victims of domestic abuse seeking shelter, or single men or women living together simply because they cannot afford to do otherwise,” wrote Judge Michael D. Hawkins of Phoenix.

The appeals court’s ruling overrides contrary decisions rendered by the California Supreme Court and the Alaska Supreme Court. The 9th Circuit decision was based on the federal Constitution, which takes precedence over state judicial rulings.

Unless overturned by the full appeals court or by the Supreme Court, the decision would be applicable in nine Western states that fall under the 9th Circuit’s jurisdiction.

In addition to California and Alaska, Hawaii, Montana, Oregon, and Washington have laws prohibiting rental discrimination on the basis of marital status that would be affected by the ruling. Arizona and Nevada have similar statutes banning discrimination based on “familial status.”

The court’s opinion acknowledged that the statutes at issue had a noble purpose--ending discrimination. But Judge Diarmuid O’Scannlain of Portland, Ore., writing for the 2-1 majority, argued that an exemption had to be granted or the religious rights of the landlords would be violated.

The landlords are “professed Christians who believe that cohabitation between unmarried individuals constitutes the sin of fornication and that facilitating cohabitation in any way is tantamount to facilitating sin,” the court wrote.

“The Alaska housing laws de facto banish” the two landlords from the rental market “and force them to forsake their livelihoods as apartment owners and lessors. The laws do not effect a mere marginal reduction in business; they put Thomas and Baker out of business,” wrote O’Scannlain, who was joined in the decision by Judge Jerome Faris of Seattle.

In order to justify such a burden, the state would have to show that it has a compelling interest that would trump the landlords’ religious freedom claims, the majority wrote, concluding that no such compelling interest existed.

“The only palpable injury suffered by an unmarried tenant turned away by a Christian landlord for religious reasons is a marginal reduction in the number of apartment units available for rent,” the judges wrote.

“There is simply no support from any quarter for recognizing a compelling government interest in eradicating marital status discrimination that would excuse what would otherwise be a violation of the Free Exercise Clause. Not all discrimination is created equal,” O’Scannlain declared in one of the key passages of the decision.

But Paula Haley, the executive director of the Alaska State Commission of Human Rights, countered that the landlords rented property as a matter of choice for personal profit, not as a matter of religious belief.

Her position was similar to that taken by the California Supreme Court when it considered a similar case in 1996. In that case, the court majority said that a landlord’s religion “does not require her to rent apartments, nor is investment in rental units the only available income producing use of her capital.”

The decision lands squarely in the midst of highly controversial legal territory--what to do about laws that apply to everyone, but that have the effect of infringing on a person’s religious practices.

In 1990, the Supreme Court came down on the side of upholding most laws challenged on religious grounds. In that case, the high court upheld an Oregon law against using peyote. The law had been challenged by two members of the Native American Church who said they used the drug in religious ceremonies.

In that case, Justice Antonin Scalia wrote that as a nation, “we cannot afford the luxury” of striking down laws simply because they limit a person’s religious practices. But the 1990 decision suggested that there might be exceptions to that rule, and the majority in the current case said cases involving property rights--such as renting an apartment--would fit into such an exception.

One of the reasons that courts have had trouble with cases of this nature is that the 1st Amendment guarantees two rights that are sometimes in opposition: an individual’s right to “free exercise” of religion on the one hand and the protection against the government’s “establishing” a religion on the other.

But O’Scannlain in his opinion denied that striking down the state law would result in an establishment of religion.