Attorney General v. Desilets

Citation636 N.E.2d 233,418 Mass. 316
CourtUnited States State Supreme Judicial Court of Massachusetts
Decision Date14 July 1994
Parties, 63 USLW 2085 ATTORNEY GENERAL v. Paul DESILETS & another. 1

Judith E. Beals, Asst. Atty. Gen. (Freda Fishman, Asst. Atty. Gen., with her), for plaintiff.

Nikolas T. Nikas, Phoenix, AZ, (Jay Alan Sekulow, Washington, DC, and David L. Taylor, Cambridge, with him), for defendants.

Mark A. Michelson and Cynthia T. MacLean, Boston, for American Jewish Congress & others, amici curiae.

Nadine M. Cohen, John F. Adkins, Debra K. Mayfield, Boston, Stephanie A. Levin, Northampton, Elaine M. Epstein, Brockton, and Robert L. Quinan, Jr., Boston, for Housing Discrimination Project, Inc., & others, amici curiae.

Scott Harshbarger, Atty. Gen., George P. Napolitano, Sp. Asst. Atty. Gen., and Elizabeth S. Hendler, Boston, for Massachusetts Com'n Against Discrimination, amicus curiae.

Matthew J. Chachere, Joan P. Gibbs and Suzanne L. Shende, New York City, for Center for Constitutional Rights, amicus curiae.

Ruth A. Bourquin, Mary L. Bonauto and Sally J. Greenberg, Boston, for Gay and Lesbian Advocates and Defenders & another, amici curiae.

Robert Caprera for Institute in Basic Life Principles & others, amici curiae.

Steven T. McFarland, J. Thomas Witek, and Bradley P. Jacob, Annandale, VA, and Richard F. Duncan, Lincoln, NE, for Christian Legal Soc. & others, amici curiae.

John H. Henn, Michael A. Albert and Sarah R. Wunsch, Boston, for Civil Liberties Union of Massachusetts, amicus curiae.

Before LIACOS, C.J., and WILKINS, ABRAMS, NOLAN, LYNCH, O'CONNOR, and GREANEY, JJ.

WILKINS, Justice.

This case involves the tension between a statutory mandate that a landlord not discriminate against unmarried couples in renting accommodations and a landlord's sincerely held religious belief that he should not facilitate what he regards as sinful cohabitation.

The defendants, who are brothers, own a four-unit apartment house in the Turners Falls section of the town of Montague. Paul and his wife jointly own two other apartment buildings in Turners Falls which have a total of twenty-one residential units. In August, 1989, Paul, acting for himself and his brother, declined to consider leasing an apartment in the four-unit building to Mark Lattanzi and Cynthia Tarail, an unmarried couple, because they would be cohabiting there. 2

The defendants have a policy of not leasing an apartment to any person who intends to engage in conduct that violates their religious principles. The defendants' sole reason for declining even to consider Lattanzi and Tarail as tenants was that religion-based policy. The defendants, who are Roman Catholics believe that they should not facilitate sinful conduct, including fornication. Since developing the policy at least a decade earlier, the defendants have applied it ten or more times to deny tenancies to unmarried couples.

General Laws c. 151B, § 4(6), as in effect in August, 1989, provided, in part, that it shall be an unlawful practice for the owner of a multiple dwelling "to refuse to rent or lease ... or otherwise to deny to or withhold from any person or group of persons such accommodations because of the race, religious creed, color, national origin, sex, age, ancestry or marital status of such person or persons" (emphasis supplied). G.L. c. 151B, § 4(6) (1988 ed.). 3 We shall conclude that the defendants violated the provisions of this statute and that, therefore, we must consider the defendants' argument that enforcement of the statute against them violates their rights under the State and Federal Constitutions.

In September, 1989, Lattanzi and Tarail filed a housing discrimination complaint with the Massachusetts Commission Against Discrimination (MCAD), claiming that because of their marital status they were denied available housing in violation of G.L. c. 151B, § 4(6). After the MCAD had found probable cause, Lattanzi and Tarail filed a notice seeking a judicial determination of the matter in the Superior Court, pursuant to G.L. c. 151B, § 5 (1992 ed.). On October 4, 1990, the Attorney General, as was his obligation under G.L. c. 151B, § 5, commenced this action on behalf of the complainants in Superior Court in Franklin County.

A judge of the Superior Court decided the case on cross-motions for summary judgment. He allowed the defendants' motion for summary judgment and denied the Attorney General's. The motion judge correctly ruled that the defendants had violated G.L. c. 151B. He then ruled that, on the summary judgment record, application of the statute to the defendants in this case would be unconstitutional. We granted the Attorney General's application for direct appellate review. We conclude that, on the record before us, neither party was entitled to summary judgment and that the summary judgment for the defendants should be vacated.

1. The defendants argue that they are not discriminating on the basis of marital status but rather on the basis of conduct and that consequently they are not discriminating in a way forbidden by G.L. c. 151B, § 4(6). There is no merit to this argument. This court's opinion in Worcester Hous. Auth. v. Massachusetts Comm'n Against Discrimination, 406 Mass. 244, 547 N.E.2d 43 (1989), makes clear that the prohibition in G.L. c. 151B, § 4(6), against discrimination in leasing because of marital status applies to discrimination against an unmarried woman and an unmarried man seeking to rent an apartment for their joint occupancy. Moreover, analysis of the defendants' concerns shows that it is marital status and not sexual intercourse that lies at the heart of the defendants' objection. If married couple A wanted to cohabit in an apartment owned by the defendants, they would have no objection. If unmarried couple B wanted to cohabit in an apartment owned by the defendants, they would have great objection. The controlling and discriminating difference between the two situations is the difference in the marital status of the two couples.

2. We consider first the protections provided by art. 46, § 1, of the Amendments to the State Constitution. Article 46, § 1 ("No law shall be passed prohibiting the free exercise of religion") parallels the First Amendment to the Constitution of the United States ("Congress shall make no law ... prohibiting the free exercise of religion"). See Commonwealth v. Nissenbaum, 404 Mass. 575, 578, 536 N.E.2d 592 (1989).

Despite the similarity of the two constitutional provisions, this court should reach its own conclusions on the scope of the protections of art. 46, § 1, and should not necessarily follow the reasoning adopted by the Supreme Court of the United States under the First Amendment. Indeed, after the release of our Nissenbaum opinion, the Supreme Court substantially altered its standard for determining whether conduct was protected under the free exercise of religion clause by its decision in Employment Div., Dep't of Human Resources of Or. v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), a much criticized opinion that weakened First Amendment protections for religious conduct. See The Supreme Court, 1992 Term--Comment, The Resurrection of Religious Freedom?, 107 Harv.L.Rev. 118 & 118 n. 3 (1993). 4

In interpreting art. 46, § 1, we prefer to adhere to the standards of earlier First Amendment jurisprudence, such as we applied in Alberts v. Devine, 395 Mass. 59, 74-75, 479 N.E.2d 113 cert. denied sub nom. Carroll v. Alberts, 474 U.S. 1013, 106 S.Ct. 546, 88 L.Ed.2d 475 (1985), and Attorney Gen. v. Bailey, 386 Mass. 367, 375, 436 N.E.2d 139, cert. denied sub nom. Bailey v. Bellotti, 459 U.S. 970, 103 S.Ct. 301, 74 L.Ed.2d 282 (1982). In each opinion, we used the balancing test that the Supreme Court had established under the free exercise of religion clause in Wisconsin v. Yoder, 406 U.S. 205, 215-229, 92 S.Ct. 1526, 1533-1540, 32 L.Ed.2d 15 (1972), Sherbert v. Verner, 374 U.S. 398, 406-409, 83 S.Ct. 1790, 1795-1796, 10 L.Ed.2d 965 (1963), and subsequent opinions. See Alberts v. Devine, supra 395 Mass. at 73-74, 479 N.E.2d 113; Attorney Gen. v. Bailey, supra 386 Mass. at 375, 436 N.E.2d 139. See also Employment Div., Dep't of Human Resources of Or. v. Smith, supra 494 U.S. at 894-895, 110 S.Ct. at 1608-1609 (O'Connor, J., concurring in the judgment). By applying the balancing test as we do, we extend protections to the defendants that are at least as great as those of the First Amendment. No further discussion of rights under the First Amendment is, therefore, necessary. 5

Our tasks are to determine whether the defendants have shown that the prohibition against housing discrimination based on marital status substantially burdens their free exercise of religion, and, if it does, whether the Commonwealth has shown that it has an interest sufficiently compelling to justify that burden. See Alberts v. Devine, supra 395 Mass. at 73-74, 479 N.E.2d 113, citing Wisconsin v. Yoder, supra 406 U.S. at 215-229, 92 S.Ct. at 1533-1540, and Sherbert v. Verner, supra 374 U.S. at 403-409, 83 S.Ct. at 1793-1796. See also L.H. Tribe, American Constitutional Law § 14-12, at 1242 (2d ed. 1988) ("In order to gain the exemption, the claimant must show (1) a sincerely held religious belief, which (2) conflicts with, and thus is burdened by, the state requirement. Once the claimant has made that showing, the burden shifts to the state. The state can prevail only by demonstrating both that (3) the requirement pursues an unusually important governmental goal, and that (4) an exemption would substantially hinder the fulfillment of the goal" [footnotes omitted] ).

Because it is unchallenged on the summary judgment record, we must accept that the defendants sincerely believe that their behavior must in all respects conform to their religious beliefs and that, in their view, the operation of rental housing is not independent of those beliefs. Conduct motivated by sincerely held...

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