Christian Landlords and the Free Exercise Clause
Christian Landlords and the Free Exercise Clause: An Economic and Philosophical Analysis of Discrimination
Roy Whitehead, Jr., Walter Block, and Patrick C. Tinsley, 33 Okla. City U. L. Rev. 115 (2008)
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Kevin Thomas and Joyce Baker are owners of residential rental properties and do not discriminate against the vast majority of potential tenants. They willingly rent their properties to women and men of all races and ethnic backgrounds, whether they are single, separated, or widowed. But as practicing Christians, Thomas and Baker refuse to rent to unmarried cohabitants on the grounds that premarital sex offends their religious beliefs. Despite their broad commitment to discrimination-free rental practices, Thomas and Baker face possible imprisonment under an Alaska statute that makes it unlawful “to refuse to sell, lease, or rent . . . real property to a person because of . . . marital status.” Alaska courts have interpreted that statute to prohibit discrimination against unmarried couples.
Knowing that their rental practices violate Alaska’s marital-status-discrimination laws, “Thomas and Baker filed suit in federal district court against Paula Haley (the Executive Director of the Alaska State Commission on Human Rights), the Anchorage Equal Rights Commission (“AERC”), and the [m]unicipality of Anchorage, seeking . . . declaratory and injunctive relief pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 2201.” The district court found that “application of the antidiscrimination laws to Thomas and Baker would violate their rights under the Free Exercise Clause and . . . permanently enjoined . . . the State [of Alaska] . . . from enforcing [those] laws against the landlords.” The Ninth Circuit Court of Appeals affirmed this result. This article critically reassesses the rationale underlying the court of appeals’ decision. Our analysis consists of two main steps.
First, using the Thomas case as a point of departure, we situate marital-status discrimination within a broader legal landscape defined by both procedural issues, such as ripeness and justiciability, and a suite of substantive issues arising out of the complex interaction between various provisions of the United States Constitution. These provisions include the Takings Clause of the Fifth Amendment and the Free Speech, Free Exercise, and Establishment Clauses of the First Amendment.
Second, we argue that the decision in Thomas, although correct insofar as it vindicates a landlord’s right to exclude unwanted tenants, appears to accept propositions of “civil-rights” law that are philosophically unsatisfying, economically unsound, and morally unjustified. To correct these deficiencies, we propose an alternative legal arrangement that retains the goal of diminishing discrimination while offering a more robust respect for the religious and economic liberties of individual property owners.