c. 1996 Religion News Service

SAN FRANCISCO (RNS)-In a long-awaited case pitting the Religious Freedom Restoration Act against state open-housing laws, the California Supreme Court ruled 4-3 Tuesday (April 9) that landlords may not refuse to rent to unmarried couples on grounds of religious belief.

The case involved landlady Evelyn Smith in the Northern California city of Chico. A Presbyterian, Smith said she had long refused to rent to unmarrieds, or to others who engage in sex outside of marriage, out of fear that God would judge her and she would be prevented from seeing her dead husband in the afterlife.

When Gail Randall and Kenneth Phillips responded to a classified ad to rent one of Smith’s four apartment units in 1987, Smith asked if they were married. The couple responded that they were and put down a deposit on the unit. But Phillips later revealed that he and Randall were not married. Smith refunded the deposit.

The couple filed a complaint against Smith with the state’s Department of Fair Employment and Housing, which ruled that Smith had violated California’s open-housing law. The law prevents landlords from inquiring as to the marital status of prospective tenants. A state appeals court overturned the agency’s ruling, however, finding that the Religious Freedom Restoration Act (RFRA), passed three years ago, supercedes state open-housing laws.

But in Tuesday’s ruling, a fractured California Supreme Court found that California’s housing law was not”directed against religious exercise,”but is”religion-neutral.””Smith’s religion does not require her to rent apartments, nor is investment in rental units the only available income-producing use of her capital,”the court ruled.”Thus she can avoid the burden on her religious exercise without violating her beliefs or threatening her livelihood.” Only one other state court-the Supreme Court of Alaska in a 1994 case-has held that RFRA prevents a landlord from claiming an exemption to state open-housing laws on grounds of religious belief. A case on the same issue recently came before the Supreme Judicial Court of Massachusetts. But that court sent the case back to a trial court for further fact-finding and may take up the question again.

Jordan Lorence, a Fairfax, Va., attorney who represented Smith, promised he would ask the U.S. Supreme Court to review the decision.”The court is setting the standard so high to trigger protection under RFRA that very few people are going to get any protection under it,”said Lorence, whose fees were paid by the Alliance Defense Fund, a conservative religious group.”The government has to be on the verge of throwing the religious person in jail or putting them in front of a firing squad before this court will recognize any protection for them. That clearly was never the intent of Congress or President Clinton when they enacted (the law) in 1993.”

MJP END AQUINO