Court Voids Ruling on Renting to Unmarried Couples

The 9th Circuit Court of Appeals on Friday overturned a ruling that had threatened the constitutionality of human rights ordinances throughout the Western United States.

At issue in the case is Alaska’s civil rights law that, among other things, prohibits landlords from discriminating against unmarried couples. Early in 1999, an appeals court panel had invalidated the law, saying that it infringed upon the religious freedom of landlords who had said that renting to an unmarried couple violated their interpretation of Christianity.

The 1999 ruling called into question the validity of similar housing discrimination laws--and by implication other civil rights laws as well--in California and elsewhere in the nine Western states under the 9th Circuit’s jurisdiction. Had it prevailed, it could have severely limited legal protection of groups including gays and lesbians, the disabled and the elderly, according to lawyers for Los Angeles and other state and local governments who urged the appeals court to reconsider the decision.

Friday’s decision did just that. The ruling, by an en banc panel of 11 of the appeals court’s judges, dismissed the previous decision.

The decision came on procedural grounds. Because no tenants had ever actually filed a complaint against landlords under Alaska’s law, and the state had never initiated proceedings against any of the landlords, no real controversy exists, the appeals court ruled.

“This is a case in search of a controversy,” appeals court Judge M. Margaret McKeown wrote in the 10-1 opinion. The Constitution, she noted, does not allow federal courts to consider cases that are “purely hypothetical.”

“No prospective tenant has ever complained to the landlords, let alone filed a complaint against them,” McKeown wrote. “No violation of the laws is on the horizon, and no enforcement or prosecution is either threatened or imminent.”

“We are greatly relieved and thankful for this ruling,” said David Schulman, supervising attorney of the Los Angeles city attorney’s AIDS/discrimination unit.

“In Los Angeles, where experts tell us there are at least 500 separate religious denominations, there would have been chaos had the ruling been upheld,” he said. “It would have allowed religious exemptions from a range of civil rights laws including disability rights laws, gay rights laws as well as marital status laws.”

Paula Haley, the executive director of the Alaska State Commission of Human Rights, similarly described the ruling as “a victory.”

“It recognizes an argument we’d made earlier: no one had been harmed, there were no facts we could argue,” she said.

But the decision was distressing for supporters of the landlords such as James Burling, an attorney with the Pacific Legal Foundation, an organization based in Sacramento that advocates conservative positions in court.

“If you are fervently religious and know you are doing acts today that will cause you to be damned for eternity,” he said, “that could have a significant psychological impact on the present--regardless of the afterlife.”

Moreover, Burling noted, the issue may not be over. “If the municipality of Anchorage decided to enforce the law--and these landlords decide not to rent to unmarried cohabitants,” he said, “there could be a new legal challenge.” The landlords could also seek further review of the case by the U.S. Supreme Court.

The landlords who challenged the Alaska law, Kevin Thomas and Joyce Baker, described themselves as “devout Christians who are committed to carrying out their religious faith in all aspects of their lives, including their commercial activities,” according to the court opinion.

The two asserted in their lawsuit that they had refused to rent to unmarried couples and would do so in the future. The appeals court noted, however, that the landlords had been unable to specify any particular case in which an unmarried couple had sought to rent from them.

In their suit, Baker and Thomas sought an exemption from state and local anti-discrimination laws that prohibit landlords from inquiring about the marital status of tenants.

The lone dissenting judge in the case, Andrew J. Kleinfeld, objected that the decision unfairly would “slam the courthouse door” on landlords who legitimately want to know “whether a constitutionally valid law prohibits them from acting . . . in the exercise of their religious beliefs.”

But, said Schulman, courts have good reason to avoid jumping into such disputes before a real controversy exists.

“The side not heard from in this case were tenants,” he said, because the landlords were not reacting to an actual complaint.

“Terribly intrusive questions into the lives of tenants would need to be made for a landlord to make a religious liberties decision: Did a single mother have her child while married or not? Are you gay or not?”

“If a case like this does come back up,” he said, “everyone who needs to be heard will be heard.”