What happens when religion and fair housing rights clash

June 3, 2011
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Imagine that a landlord rents off-campus housing to college students. Over many years, he watches Christian students lose their faith as they work on their degrees. In a bid to provide support and fellowship to Christian undergrads during a difficult time, the landlord designates one of his houses for Christian students only.

He may be well-intentioned, but our hypothetical landlord is violating the Fair Housing Act and the Michigan Elliot-Larsen Civil Rights Act. Taken together, these fair housing laws prohibit discrimination in providing housing or real estate services on the basis of race, color, religion, age, sex, national origin, familial status and marital status.

However, determining whether fair housing laws have been violated is not always clear cut. While our hypothetical landlord is in violation for discriminating on the basis of religion, complex considerations come into play under somewhat different circumstances.

Take the recent, highly publicized case of a West Michigan woman who posted on her church's bulletin board that she was looking for a "female Christian" roommate. The Fair Housing Center of West Michigan filed a discrimination complaint against her for publishing a discriminatory advertisement.

The Department of Housing and Urban Development found there was no reasonable cause to believe fair housing statutes had been violated, noting that in this “unique context” involving a roommate and the sharing of religious beliefs, the department would defer to “Constitutional considerations.” It is not clear which Constitutional considerations HUD relied on in coming to its decision, but it is likely the First Amendment right to free exercise of religion came into play.

The conflict between the religious protections of the First Amendment and the protections against discrimination in the fair housing laws is particularly problematic when landlords use their religious beliefs as criteria in selecting renters. In a 1998 Michigan case, McCready v. Hoffius, a landlord refused to rent to unwed couples planning to live together.

The landlord argued that laws requiring him to rent housing to unwed couples violated his Constitutional right to the free exercise of his religion. The Michigan Supreme Court disagreed and stated that his practice of refusing to rent to unmarried couples clearly violated fair housing laws by discriminating based on marital status. It also said that the law did not burden his religious freedom, because he was voluntarily engaging in the commercial activity of renting housing.

The Supreme Court vacated its decision in 1999 based on Constitutional concerns. However, it did so with virtually no discussion of the Constitutional questions involved. No new case has reached the court on this issue, leaving the law confusing and unsettled. The unsettled state of the law was likely a factor in a March 2011 settlement between the Fair Housing Center of West Michigan and landlords in Holland who rented apartments to single individuals or married couples, specifically excluding unmarried couples.

While it is not always clear how the religious rights of landlords and the civil rights of potential tenants interact, the following are some good rules of thumb for landlords to avoid fair housing violations:

  • Do not use language in an advertisement that indicates a preference for a particular religion, such as “Christians only,” or a discriminatory intent against a particular religion, such as “No Christians.”

  • Do not include religious language in the name of an apartment complex or house that you are renting out. Courts have found that names such as "Rosemount Christian Fellowship Home" violate the prohibition against publishing discriminatory or preferential statements.

  • Because the law in Michigan is unsettled on this issue, landlords who take their religious convictions into account when making rental decisions should be aware that they may run afoul of fair housing laws.

Metta Dwyer is an attorney at Warner Norcross & Judd LLP who concentrates her practice in real estate law. She can be reached at mdwyer@wnj.com

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