Can a Landlord’s Religious Beliefs Trump the Fair Housing Act?

Can religion be used as a legitimate reason to discrimimate against a resident.

At least one man in New Brunswick, New Jersey thinks so. And he may be right. Joe Fabics rents out rooms in his six-room house, but only to applicants who espouse their belief in God and then agree to sign a lease that reads: "This is a Christian household. If you hate God do not move in."

As far as we can tell, the question of whether Fabrics has the right to enforce such a requirement has yet to reach HUD or the New Jersey’s fair housing agency. However, one recent case in San Jose, California, did go to court on that issue.

New Beginnings, a facility for mentally disabled homeless people was ordered to pay $8,200 in damages for discriminating against a woman because she is a lesbian. (Remember, sexual orientation is a protected category in California and many other states but not in the federal law.) According to the complaint, the manager was quoted as saying that "homosexuality is an abomination."
New Beginnings claimed that its actions were constitutionally protected freedom of religion, but the California administrative court disagreed, saying that a landlord's religious beliefs do not exempt him or her from adhering to state and federal fair housing provisions, including the ban on housing discrimination based on sexual orientation. The San Jose case is consistent with a 1996 California Supreme Court case that held that landlords were not exempt from state anti-discrimination provisions.

As we know, federal and state fair housing laws explicitly permit religious organizations to limit “the sale, rental or occupancy of dwellings which it owns or operates for other than a commercial purpose (emphasis added) to persons of the same religion, or from giving preference to such persons, unless membership in such religion is restricted on account of race, color, or national origin.” But the question whether a landlord can defend a fair housing claim by asserting his/her constitutional right to the free exercise of religion is still a wide open question despite these California cases.

Case law from other states is sparse to say the least. In 1994, however, the Supreme Court of Alaska ruled that enforcing the state’s fair housing law against a landlord did not violate his right to free exercise of religion under the United States Constitution. Yet in a different case decided only a few years later, a federal District Court in Alaska ruled that Alaska’s fair housing law could not be enforced against a landlord who, for religious reasons, refused to rent his house to unmarried couples. But that case was reversed (albeit because of an entirely separate issue unrelated to the fair housing claim) by the Ninth Circuit Court of Appeals, which has yet to rule on the fair housing issue. Other state supreme courts, like Massachusetts and Michigan, have simply ducked the issue by remanding religious cases to lower courts, also for reasons unrelated to the fair housing vs. religious freedom issue.

So the answer to the question “Can a Landlord’s Religious Beliefs Trump the Fair Housing Act?” is probably “yes” in Alaska, “no” in California and “maybe” everywhere else. We'll have to see.