Federal appeals court says Christian landlords can refuse to rent to certain people

Friday, January 15, 1999

Alaska landlords with religious scruples can violate the state's anti-discrimination housing laws, a federal appeals court has ruled.

In a lengthy opinion, a panel of the 9th U.S. Circuit Court of Appeals yesterday ruled 2-1 that the state's interest in quelling discrimination in housing simply is not important enough to justify burdening the religious beliefs of a couple of landlords in Anchorage, Alaska.

The Anchorage couple, Christians who believe unmarried cohabitation is sinful, sued the city of Anchorage and the Alaska State Commission for Human Rights, challenging laws that make refusal to rent to unmarried people unlawful. Alaska and Anchorage both have laws intended to prevent discrimination in rental housing and both of those laws bar discrimination based on marital status. A U.S. District Court in Alaska upheld the Christian landlords' legal beef with the laws.

Judge Diarmuid O'Scannlain, writing for the majority of the 9th Circuit panel, commenced the 30-page decision by noting that the question was “whether or not those laws may be validly enforced against” the landlords as “a matter of constitutional law.”

State and federal laws that allegedly subvert religious faith, however, do not automatically amount to a constitutional violation, the U.S. Supreme Court concluded in its 1990 ruling in Employment Div., v. Smith. Writing for the majority in Smith, Justice Antonin Scalia said that “the right of free exercise does not relieve an individual of the obligation to comply with a 'valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).'” Thus, if a neutral law substantially infringes on an individual's religious practices, the government only need meet a low or mid-level standard in upholding that law.

However, the Smith majority said two exceptions could force the government to meet a much higher test — referred to as strict scrutiny — when dealing with free-exercise challenges. If a law was proved to target or single out religion, then the law would have to be “justified by a compelling governmental interest and must be narrowly tailored to advance that interest,” the high court ruled. Secondly, if a governmental action or law infringes on the free exercise and another constitutional or fundamental right, then the “compelling-interest” test would be also triggered.

Before the district and appellate courts, the Christian landlords argued that the Alaska and Anchorage anti-discrimination laws impinged not only upon their religious liberty but also upon their Fifth Amendment property rights and their free-speech rights.

The 2-judge majority of the 9th Circuit panel agreed with the landlords' contentions that their property rights could be infringed by the anti-discrimination laws. The majority also ruled that the state and city laws might violate their free-speech rights, thus forcing the Alaska governments to meet the “compelling interest” test.

The Alaska anti-discrimination laws make it unlawful for landlords to make “a written or oral inquiry or record” into the marital status of potential renters; to tell a person the rental property is not for lease to unmarried couples; or to “make, print or publish” any comment that might reveal prejudice toward unmarried couples. Judge O'Scannlain said those provisions of the Alaska laws could amount to a free-speech violation.

“Here, the expression forbidden by the Alaska anti-discrimination laws is, at its essence, religious speech, which enjoys plenary First Amendment protection,” O'Scannlain wrote. “Moreover, there can be no doubt that both the Alaska statute and the Anchorage ordinance purport to regulate landlords' speech based upon its content.”

After deciding that the landlords' had seemingly valid free-speech and property-rights complaints in conjunction with their free-exercise claim, the 9th Circuit said the anti-discrimination laws had substantially burdened the landlords' religious liberty and that therefore the government had to meet the “compelling interest” test.

Paula Haley, executive director of the Alaska human rights agency, argued that the anti-discrimination laws met constitutional muster because the state “has compelling interests in eradicating discrimination in housing on the basis of marital status.”

The 9th Circuit, however, found that not only does Alaska not have a strong interest in quelling housing discrimination based on marital status but neither does the federal government.

“It is beyond cavil that there is no similar 'firm national policy' against marital-status discrimination,” O'Scannlain said. The judge, moreover, said “the Supreme Court has never accorded marital status any heightened scrutiny under the Equal Protection Clause as it has both race and gender.”

O'Scannlain thus concluded that Alaska had to exempt the Christian landlords from its anti-discrimination laws. In doing so, O'Scannlain wrote that the establishment clause of the First Amendment, which requires separation of church and state, was not undermined or harmed.

“Obviously, Free Exercise Clause exemptions do not as a general matter violate the Establishment Clause,” O'Scannlain wrote. In this situation, O'Scannlain said, Alaska would not be endorsing Christianity by exempting the Christian landlords from its anti-discrimination laws.

“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 to rent,” O'Scannlain said. “The 'harm' to the rejected lessee, if any, is economic, not religious; as such, it is beyond the pale of the Establishment Clause.

“Noble as their purpose may be, neither the Alaska statute nor the Anchorage ordinance may be enforced against landlords, who for religious reasons, refuse to rent to unmarried couples,” O'Scannlain concluded.

The only dissent was offered by Judge Michael Hawkins. He said the ruling by the 9th Circuit, which includes Washington, Oregon, California, Idaho, Montana, Nevada and Arizona, could have a negative impact on the enforcement of anti-discrimination laws.

“The majority chooses the wrong set of facts to lead to an unprecedented and unnecessary result,” Hawkins wrote. “Its potential 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.”

Steve McFarland, legal director of the Christian Legal Society, which filed a friend-of-the court brief on behalf of several religious groups, lauded the 9th Circuit's decision.

“It was a good day for religious freedom, but certainly not a setback for civil rights,” McFarland said. “Folks who are worried about housing discrimination should not be crying that the sky is falling. There simply was not a showing that unmarried couples have trouble finding housing.”

In late December, the Michigan Supreme Court ruled that the state's anti-discrimination laws-which, like Alaska's, shielded single people from discrimination– could be enforced against all landlords, regardless of religious objections.

Cliff Groh, the assistant city attorney for Anchorage, said that the state has announced it will ask the entire 9th Circuit to overturn the three-judge panel's decision.

Groh termed Anchorage officials “disappointed” with the ruling, but said they had not decided whether to appeal. The vigorous dissent of Judge Hawkins, Groh said, could prompt the full 9th Circuit to reconsider the case.