Michigan high court dumps its decision on landlords and religion

Wednesday, May 5, 1999

Michigan’s high court has vacated a decision it issued late last year that stated landlords could not for religious reasons deny renting property to unmarried tenants.

In December the Supreme Court of Michigan ruled in Kerr v. Hoffius that the religious-liberty rights of a couple of landlords in Jackson, Mich., were not violated by their having to rent their property to an unmarried couple, Kristal McCready and Keith Kerr.

The landlords, a married couple, refused to rent property to the unmarried couple, saying they had deeply held religious beliefs against unmarried cohabitation. McCready and Kerr then sued the landlords, John and Terry Hoffius, arguing the Michigan Civil Rights Act barred landlords from discriminating against people because of their marital status. The state civil rights law bars landlords from refusing to rent to people based on “religion, race, color, national origin, age, sex, familial status, or marital status of a person.”

Attorneys for the Hoffiuses argued before the state Supreme Court that their First Amendment free exercise of religion right shielded them from complying with the state civil rights law.

Justice Marilyn Kelly, writing the majority opinion for the court, found that the Hoffiuses’ religious rights had not been subverted by their having to comply with the state civil rights law. “A compelling state interest in eradicating discrimination in real estate transactions justifies the burden on their beliefs,” wrote Kelly.

Richard N. LaFlamme, a Jackson attorney representing the Hoffiuses with the help of the Rutherford Institute, a national conservative religious law firm, quickly filed an appeal asking the state high court to reconsider its opinion.

In a three-page order issued in late April, the state Supreme Court, albeit with two justices dissenting, without explanation vacated its decision in Kerr and remanded the case to a circuit court in Jackson.

Kelly, one of the dissenting judges, cited a 1990 ruling by the high court that said only “in the rare case when it is clearly apparent that an error has been made, or changing conditions result in injustice by the application of an outmoded rule, should we deviate” from precedent.

Kelly then said the court’s decision in Kerr was not outmoded and did not erroneously rule on the constitutional issues involved.

“The requirements of the Civil Rights Act do not force [ the Hoffiuses] to violate their sincerely held religious beliefs,” wrote Kelly. “Instead, the burden placed on their religious beliefs merely affects their commercial decision to enter the real estate market and impose these beliefs on their potential customers.”

In their motion for rehearing, the Hoffiuses cited a recent 9th U.S. Circuit Court of Appeals ruling in Thomas v. Anchorage that struck down a housing discrimination law similar to Michigan’s. In Thomas, a three-judge panel for the 9th Circuit found that Alaska’s anti-discrimination law protecting unmarried couples could not be enforced against landlords who for religious reasons did not want to rent to unmarried couples.

Federal courts in Michigan are under the jurisdiction of the 6th U.S. Circuit Court of Appeals.

Justice Michael F. Cavanagh, the other dissenting judge in the Michigan case, said there was “a split” in the federal circuits regarding interpretations of free-exercise clause jurisprudence and that it was wrong for the court to remand the case back to a trial court without clarification.

Jennifer Schans, a regional coordinator for the Rutherford Institute, praised the Michigan high court’s decision and said “that with further review of the constitutional claims in this case the court will determine that the free exercise of landlords’ religious beliefs is compelling.”