Daily Development for Wednesday, August 13, 1999

By: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri

I apologize for failing to properly review the history of this case earlier. This reflects the current posture and gives the recent cite.

FAIR HOUSING; DISCRIMINATION BASED UPON MARRIAGE: A landlord's refusal to rent apartments to unmarried couples discriminates against the couples based on marital status in violation of the State Civil Rights Act, but such finding of discrimination may violate the landlord's free exercise of religion. . McCready v. Hoffius, 593 N.W.2d 545, (Mich. 1999) vacating in part 586 N.W.2d 723 (Mich. 1998).

Defendants, a married couple, owned a residential property which they refused to rent to plaintiffs, two couples each consisting of an unmarried man and woman. Plaintiffs filed two separate actions in Circuit Court.

The Supreme Court stated that the question before it was whether the state's interest in providing equal access to housing to all regardless of their membership in prescribed categories supersedes defendants' religious rights. The Court determined that the issue was complicated by the existence of an antiquated and rarely enforced statute prohibiting lewd and lascivious behavior.

The Court determined that the landlord's refusal to rent to the prospective tenants because their marital status was single was a discriminatory act. The Court rejected the landlord's argument that they did not discriminate against plaintiffs because of their marital status but rather refused to rent to them on the basis of the their conduct. The Court also stated that by protecting the prospective tenants' rights it was not legitimizing criminal behavior. The statute prohibiting lewd and lascivious behavior does not prohibit cohabitation per se and in this case there was insufficient evidence that the prospective tenants intended to engage in lewd and lascivious behavior.

The case relied heavily on parallel authority in Alaska, California and Massachusetts. Three dissenters argued that the authority in those states did not establish that the Michigan legislature intended to require landlords to rent to cohabiting unmarried couples. They stressed the fact that Michigan does not recognize common law marriage and continues to outlaw "lewd and lascivious conduct," pointing out that authority suggesting that such conduct does not include cohabitation by unmarried couples is questionable.

The Court initially also rejected the landlord's claim that the Act violates their religious freedom rights under the Michigan Constitution and the United States Constitution. The Court found that in order to be constitutional under the United States Constitution, a law burdening a religious practice must be neutral and of general applicability. The Court concluded that the Act is generally applicable because it prohibits all discrimination and has no religious motivation. The Court also determined that the Act did not violate the Michigan Constitution under a five factor test. Among other things, the Court determined that the state's need to provide equal access to housing outweighs the landlord's religious beliefs that they should not rent to a married couple and that the landlord failed to convince the court that the state could have accomplished its goal of equal access to housing by less obtrusive means. On this point however, the court vacated without comment (except by dissenters) following a change in the composition in the court after an election, and remanded the case to the trial court for a reconsideration of the issue of whether the state's civil rights act violates the religious liberties of landlords. According to the dissenters, the court relied upon a recent Alaska case that may alter the impact of the Alaska precedent cited above: Thomas v. Anchorage Civil Rights Commission, 165 F.2d 682 (9th Cir. 1999). Comment: Michigan, being a "heartland" state, is probably a more important bellweather of the direction of judicial opinion in this area than the prior authority. The fighting apparently isn't over yet. It is interesting to note that this case comes hard on the heels of the Supreme Court's invalidation as an establishment recent Congressional provisions attempting to protect religious activities from zoning restrictions.

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