Attorneys general urge reversal of decision allowing landlords to discriminate

Tuesday, February 2, 1999

California's attorney general has asked a federal appeals court to invalidate a lower court decision that allowed landlords, for religious reasons, to ignore state anti-discrimination laws and refuse to rent property to unmarried couples.

A three-judge panel for the 9th U.S. Circuit Court of Appeals ruled in mid-January that Alaska's anti-discrimination laws protecting unmarried couples could not be enforced against landlords who for religious reasons did not want to rent to unmarried couples. Besides Alaska, the 9th Circuit includes Hawaii, Arizona, California, Oregon, Washington, Nevada, Montana and Idaho.

The 9th Circuit panel ruled in Thomas v. Anchorage Equal Rights Commission that the state's laws aimed at quelling housing discrimination could not “be enforced against landlords who for religious reasons refuse to rent to unmarried couples.” In the lengthy court opinion, the majority found that preventing discrimination against unmarried couples did not rise to a sufficient level of government interest to override the religious beliefs of the landlords.

“Here, 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,” Judge Diarmuid O'Scannlain wrote for the majority.

The decision is one of several recent ones that center on a growing struggle between religious liberty and the right of government to prevent discrimination.

Bill Lockyer, newly elected attorney general for California, submitted a friend-of-the-court brief late last week to the 9th Circuit on behalf of the Alaska and Anchorage equal rights commissions. The attorney general urged the full 9th Circuit to reconsider the ruling in Thomas.

“The court's decision threatens to roll back California's civil rights laws to 19th century levels,” Lockyer said in a Jan. 28 statement. “In effect, if this ruling stands, it tells landlords, and potentially other commercial enterprises, that religious discrimination is acceptable in this state. The people of California won't tolerate such discrimination, and, as the people's lawyer, I strongly urge the court to reconsider this flawed decision.”

Lockyer requested in the brief that the entire 9th Circuit overturn its panel decision, “because, under the court's decision, owners of business establishments are effectively allowed to discriminate against unmarried cohabiting tenants in the rental housing market and cloak that discrimination in the shroud of the Free Exercise Clause of the First Amendment.”

Kathleen Mikkelson, California Deputy Attorney General, said that attorneys general for Nevada, Washington, Oregon, Montana and Hawaii have signed on to Lockyer's brief urging a full appellate court review.

“We definitely do not agree with the way the court defined a governmental compelling interest,” Mikkelson said. “In our view there is a compelling interest in preventing discrimination in general.”

Lockyer's brief also suggested that tenants' fundamental rights to privacy are infringed by landlord inquiries into their marital status. “In order for landlords to discriminate on religious grounds, they have to violate the tenant's right to privacy,” Mikkelson said.

“The landlords in this case are seeking to intrude into their tenants' intimate relationships, and they are asking this court to carve out an exception to Alaska's laws in order to allow them to discriminate against unmarried tenants,” Lockyer's brief states. “In doing so, they are involving the state in restricting tenants' rights because of their choice of living arrangements.”

Mikkelson added that the brief suggests that it is a violation of church-state separation if only religious individuals are exempted from anti-discrimination laws.

“In sum, religious beliefs can affect all aspects of life and because each person may define his or her own religious beliefs, even if those beliefs are not acceptable, logical, consistent, or comprehensible to others,” Lockyer states in the brief. “Under this court's reasoning, there is the potential for constitutionally required exemptions from civic obligations of almost every conceivable kind, leaving a system in which each conscience is a law unto itself.”

Tom Coleman, executive director of American Association for Single People, a California-based nonprofit group, said he hoped the full 9th Circuit would reverse the Thomas decision.

“What the court actually did was to permit a group of people the right to discriminate against those whose beliefs don't live up to their religious expectations,” Coleman said. “That is plainly religious discrimination and if allowed to remain, it will basically create religious warfare in this country. There are a lot of religious landlords who would like to create religious conclaves.”

Jordan Lorence, general counsel for Northstar, a Virginia-based conservative religious public-interest law firm that has defended religious landlords in California, said that Lockyer's brief gave short shrift to the fundamental religious rights of Alaska landlords.

“I think overall it represents a disturbing sustained attitude by [attorneys general] toward religious-liberty cases,” Lorence said. “They always raise important governmental interests to deny the religious observer exemptions to whatever laws are at issue. To an attorney general, every governmental interest is compelling.”

Lorence also said it was specious for the California attorney general to argue that discrimination of unmarried couples was a pervasive problem.

“Compared to racial discrimination, martial-status discrimination is not a problem,” he said. “I think the number of landlords willing to turn down unmarried couples is small. I think they have grossly exaggerated the problem.”