The Right of Religious Landlords to Exclude Unmarried Cohabitants: Debunking the Myth of the Tenant’s “New Clothes”

This article explains why the “right” of unmarried cohabitants to force themselves and their sexual ethics on objecting religious landlords is as illusory as the emperor’s new clothes. Part II demonstrates why, under well-established principles of statutory construction, the landlord’s decision not to rent to an unmarried couple cannot constitute marital status discrimination unless the legislature has explicitly protected such couples. Because no statute currently provides this protection, landlords cannot presently commit marital status discrimination by refusing to rent to unmarried couples. Part III demonstrates that, even assuming these landlords do commit marital status discrimination, a statute which protects unmarried couples is an invalid exercise of the state’s police power if there is no evidence that religiously objecting landlords pose a sufficient threat to the ability of unmarried couples to obtain suitable housing. Part IV describes the numerous theories that landlords may use to obtain strict scrutiny review of any law which proscribes discrimination against unmarried couples. Part V analyzes the relative interests of the landlord and the state under strict scrutiny review and demonstrates that there are several reasons why a landlord who has a sincere religious objection to the law should be entitled to an exemption. Part VI provides some final observations