Thanks Eugene; I had forgotten some of those cases.
For whatever reason, the litigation shifted from landlords to wedding vendors.
And the wedding vendors have all lost, although most of those cases are still
pending on appeal. I was reacting as much to the current hostility to such
claims as to the track record from the 90s, when the landlord cases were being
litigated.
________________________________
From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu]
on behalf of Volokh, Eugene [vol...@law.ucla.edu]
Sent: Thursday, February 04, 2016 1:20 PM
To: Law & Religion issues for Law Academics
Subject: RE: landlord/tenant law and RFRA
Wasn’t Jasniowski also vacated, there by the state supreme
court, 174 Ill. 2d 563 (1997) (“In the exercise of this Court's supervisory
authority, the Appellate Court, First District, is directed to vacate the
judgment entered in 287 Ill.App.3d 655, 222 Ill.Dec. 871, 678 N.E.2d 743
(1997), to vacate the judgment entered by the circuit court in case No.
94-CH-5546 (December 22, 1994), and to set aside the order entered by the
Chicago Commission on Human Relations in case No. 92-H-127 (May 18, 1994).”)?
Also, State by Cooper v. French, 460 N.W.2d 2 (Minn. 1990), came out in favor
of the landlord.
So, as I count it, landlords won in Illinois, Michigan, and
Minnesota (though in Illinois and Michigan the court opinions were quite
opaque). In Massachusetts, the court seemed to say that the landlords could
win if it appeared that “the rental housing policies of people such as the
defendants can be accommodated, at least in the [local] area, without
significantly impeding the availability of rental housing for people who are
cohabiting or wish to cohabit.” The landlords lost in Alaska under strict
scrutiny. And in Smith, the court split 3-3 in applying strict scrutiny,
though the swing vote (Justice Mosk) concluded that the landlords should lose
because RFRA violated the separation of powers.
I don’t quite see, then, an anti-claimant general trend in the
marital status discrimination in housing cases. Rather, it seems like a pretty
mixed bag, on balance slightly in favor of the landlord claimants, though far
from uniformly so. Or am I missing something?
Eugene
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Laycock, H Douglas
(hdl5c)
Sent: Thursday, February 04, 2016 9:29 AM
To: Law & Religion issues for Law Academics
Subject: RE: landlord/tenant law and RFRA
McCready v, Hoffius was vacated on rehearing and remanded for further
consideration of the compelling interest issue.
But I agree with Marty on the general trend. For-profit entities have not won
exemptions from discrimination laws under the RFRA standard. Most of them
should not win; for the few situations in which they should, specific
exemptions are needed to provide any protection that is at all likely to work.
________________________________
From:
religionlaw-boun...@lists.ucla.edu<redir.aspx?REF=0kHekX3XxiVvGgHALoix3toIKyWGhklW6O4mpoeOhzGFRd5zkC3TCAFtYWlsdG86cmVsaWdpb25sYXctYm91bmNlc0BsaXN0cy51Y2xhLmVkdQ..>
[religionlaw-boun...@lists.ucla.edu] on behalf of Marty Lederman
[lederman.ma...@gmail.com]
Sent: Thursday, February 04, 2016 8:29 AM
To: Law & Religion issues for Law Academics
Subject: Re: landlord/tenant law and RFRA
Roberta: This would almost certainly be exclusively a question of state law,
wherever it arises (if it ever does). There first would have to be a state or
local ordinance prohibiting such discrimination; and then also a state RFRA, or
a state constitutional free exercise provision that has been construed to be
more restrictive than the federal FEC in Smith. If and when a state has both
of these sorts of state laws, and if any landlord invokes a RFRA exemption, I
expect, based largely upon past practice, that most or all state courts would
reject the landlords' claims. But, of course, there might be some state
judiciaries that go the other way, especially if the Supreme Court in Zubik
applies RFRA's "compelling interest"/"least restrictive means" test much more
stringently than it has construed that "test" since 1963.
Here's a quick string-cite that I recently threw together on the earlier
landlord cases [if I missed any, please let me know]:
Landlords brought several such claims seeking religious exemptions that would
permit them to disregard state and local laws prohibiting discrimination
against unmarried tenants in non-owner-occupied units. The courts typically
rejected these claims. See, e.g., Smith v. Fair Emp't & Hous. Comm'n, 913 P.2d
909 (Cal. 1996) (federal RFRA); Swanner v. Anchorage Equal Rights Comm'n, 874
P.2d 274 (Alaska 1994) (state free exercise clause); McCready v. Hoffius, 586
N.W.2d 723, 729 (Mich. 1998) (state free exercise clause); Jasniowski v.
Rushing, 678 N.E.2d 743, 748-51 (Ill. App. Ct. 1997) (federal RFRA). In one
such case, however, two judges on the U.S. Court of Appeals for the Ninth
Circuit would have recognized an exemption if the merits of a so-called Smith
"hybrid" claim were reached, see Thomas v. Anchorage Equal Rights Comm'n, 165
F.3d 692 (9th Cir. 1999) (majority opinion of O’Scannlain, J., joined by
Farris, J.), vacated on other grounds, 220 F.3d 1134 (9th Cir. 2000) (en banc);
and in another case, Justice Thomas hinted that he, too, was sympathetic to
such claims under RFRA, see Swanner v. Anchorage Equal Rights Comm'n, 513 U.S.
979 (1994) (Thomas, J., dissenting from denial of petition for writ of
certiorari). See also Attorney Gen. v. Desilets, 636 N.E.2d 233 (Mass. 1994)
(reversing summary judgment in favor of landlords and remanding for further
hearing on state’s compelling interest under state constitutional provision).
On Thu, Feb 4, 2016 at 7:59 AM, Kwall, Roberta
<rkw...@depaul.edu<UrlBlockedError.aspx>> wrote:
Dear colleagues-
I am working on the next edition of my property casebook and am writing to get
some input on an issue that comes up in connection with the chapter on a
landlord's ability to refuse occupancy by a tenant. Although the FHA prohibits
discrimination based on "familial status," whether a landlord can refuse
occupancy based on marital status is governed by the states. Courts have gone
both ways on whether a landlord can refuse an unmarried heterosexual the
ability to rent based on religious belief. Regarding gay couples, even before
Obergefell, some state statutes prohibited discrimination based on civil unions
status, domestic partnerships, gender identity, etc.
I know this this group has discussed related issues post Obergefell but I was
wondering specifically whether anyone can speak to whether current or pending
state RFRA Acts might be used to allow a landlord who opposed gay marriage to
refuse to lease to a married gay couple. I would like to include something
brief on this in the book.
Thank you!
Bobbi
Roberta Rosenthal Kwall
Raymond P. Niro Professor
Founding Director, DePaul University College of Law
Center for Intellectual Property Law & Information Technology
Author of The Myth of the Cultural Jew: Culture and Law in Jewish Tradition
http://amzn.to/15f7bLH<UrlBlockedError.aspx>
You can view my papers on the Social Science Research Network (SSRN) at the
following
URL: http://ssrn.com/author=345249<UrlBlockedError.aspx>
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