By ROBERT F. DRINAN

Kevin Thomas and Joyce Baker own some rental apartments in Anchorage, Alaska. They’re fundamentalist Christians and refuse to rent to unmarried couples.

State officials told Thomas and Baker that they couldn’t discriminate against renters on that basis. The two sued, seeking an exemption from the state’s Fair Housing Law that prohibits any denial of rental property to persons “because of ... marital status.”

They won. On Jan. 15 the Ninth Circuit Court of Appeals ruled 2-1 that Thomas and Baker are constitutionally excused from the Alaskan law denying landlords or sellers any right to discriminate on the basis of race, age, sex or marital status.

The law resembles ordinances in every state that restrict the rights of property owners to reject renters or buyers on the basis of personal characteristics. Such laws have their roots in the civil rights movement, in efforts to eradicate discrimination in housing on the basis of race.

The majority view, written by Judge Diarmuid O’Scannlain, overruled contrary decisions by the California and Alaska Supreme Courts. The decision is applicable to nine other states, including Hawaii. Most of these states have statutes like Alaska’s banning discrimination on the basis of “familial status.”

The two judges who formed the majority in this case sided with the owners, who argued that “facilitating cohabitation is tantamount to facilitating sin.” The judges said that the state has no compelling reason to insist that owners rent to persons whose conduct would, as the owners see it, involve them in wrongdoing. If prospective renters are inconvenienced, only a slight adjustment is needed to acquire another rental property.

But the dissenting judge, Michael D. Hawkins, saw the case differently. He wondered what would happen if the court allows a property owner to deny access to his home to prospective renters who are divorced, interracial or gays or lesbians. The claims of such groups to equal protection under the law should, the judge asserted, trump the scruples of the owner. Moreover, the judge said the inconvenience to renters is not so slight if the property in question is, for them, uniquely attractive.

The ruling illustrates the highly controversial question of what to do about neutral laws that have the effect of infringing one person’s religious beliefs or practices.

Before the circuit court intervened, the Supreme Court of Alaska ruled that owners who decided to rent their property did so as a matter of choice and had no right to impose their religious views on tenants. Living together without being married is not illegal in Alaska and most other states, the judges said, and hence should not be a bar to renting an apartment.

Conservative religious groups are pushing aggressively to secure a right for property owners to follow their consciences. The thrust of most civil rights enforcement over the past generation, on the other hand, has been to deny any exemptions or excuses to those who rent or sell. The long history of discrimination in housing cautions against creating exemptions because of the desires of those who control the transaction. If you can discriminate on the basis of marital status, why not race or gender?

The Religious Freedom Restoration Act passed by Congress in 1993 was an effort to insist that in any case where the plaintiff complains of an infringement on the free exercise of religion, the burden shifts to the defendant; if the government makes out a compelling reason to insist on the infringement of the free exercise of religion, the government must then still prove that the proposed restriction is the least restrictive way of enforcing or achieving that compelling reason.

The U.S. Supreme Court invalidated the Religious Freedom Restoration Act as applicable to the states. It is still valid law in the federal courts. Congress is seeking to re-enact a modified form of the law.

The preservation of religious freedom has always been one of the great objectives of American jurisprudence. The Supreme Court has regularly protected the religious freedom of Jehovah’s Witnesses, Amish children and Seventh-Day Adventists. But as American society becomes more fragmented and as the number of nonadherents to organized religion increases, the courts and the country will have to reassess the claims of persons like Kevin Thomas and Joyce Baker.

Catholics and other believers are almost by instinct sympathetic to the claims of conscientious objectors. But the claims of those who will be hurt if religious freedom is maximized must also be listened to. No Christian should want to see religious freedom used as a club to restrict the freedom of others.

In the end, the law may not have any satisfactory resolutions for these dilemmas. Tolerance, patience and love offer better answers.

Jesuit Fr. Robert Drinan is a professor at Georgetown University Law Center.

National Catholic Reporter, March 26, 1999

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