Donahue v. Fair Employment and Housing Com'n, B052118

Citation1 Cal.App.4th 387,2 Cal.Rptr.2d 32
Decision Date27 November 1991
Docket NumberNo. B052118,B052118
PartiesPreviously published at 1 Cal.App.4th 387, 13 Cal.App.4th 350, 7 Cal.App.4th 1498 1 Cal.App.4th 387, 13 Cal.App.4th 350, 7 Cal.App.4th 1498, 60 USLW 2396 John V. DONAHUE et al., Plaintiffs and Respondents, v. FAIR EMPLOYMENT AND HOUSING COMMISSION, Defendant and Appellant.
CourtCalifornia Court of Appeals

John K. Van de Kamp and Daniel E. Lungren, Attys. Gen., Andrea Sheridan Ordin, Chief Asst. Atty. Gen., Marian M. Johnston, Supervising Deputy Atty. Gen., and Manuel M. Medeiros and Kathleen W. Mikkelson, Deputy Attys. Gen., for defendant and appellant.

Thomas F. Donahue, for plaintiffs and respondents.

BOREN, Associate Justice.

Respondents, Agnes and John Donahue, declined to accept a rental application from an unmarried cohabiting couple because renting to the couple would compromise the Donahues' sincerely held religious belief that fornication and its facilitation are sins. We agree with appellant, the Fair Employment and Housing Commission (FEHC), that the Donahues' refusal to rent violated Government Code section 12955, which prohibits "marital status" discrimination. However, we find that the Donahues are entitled to exemption from section 12955 because the state's statutory interest in protecting unmarried cohabiting couples from discrimination is not such a paramount and compelling state interest as to outweigh the Donahues' legitimate assertion of their right to the free exercise of religion under the California state constitution.

FACTS

In January of 1987, Verna Terry and Robert Wilder, an unmarried couple, shared with another person a two-bedroom apartment on Jib Circle in Downey. The apartment rent was $795 per month, approximately $400 of which was paid jointly by Terry and Wilder. At the end of January, Terry and Wilder gave notice to their landlord that they would leave by March 1, 1987. They gave notice before they secured another apartment because they wanted to avoid paying double rent and wanted their deposit money available from the Jib Circle apartment to use for a new rental.

During the first three weeks of February 1987, Terry and Wilder searched without success for a new rental which was suitable. They wanted a new rental in a good neighborhood in Downey. They needed an apartment with major appliances, laundry facilities and a garage in which Wilder could store his tools.

On February 22, 1987, with approximately one week left to find an apartment, Terry and Wilder saw in front of the Donahues' five-unit La Reina Avenue apartment building a sign advertising an apartment for rent. Terry and Wilder liked the appearance and location of the building, and Terry telephoned later in the day to inquire about the apartment. When Terry called about the apartment, she spoke on Wilder's behalf as well.

Terry spoke with Agnes Donahue, who told Terry that the available apartment had one bedroom, came with a stove and refrigerator, and rented for $450. Terry remarked that the apartment seemed suitable and inquired whether a garage was available. Donahue stated that a garage might become vacant soon and would rent for an additional $50 per month. Terry replied that her "boyfriend" needed an enclosed garage for his tools. Donahue responded, "Oh, your boyfriend." In response to Donahue's questions, Terry indicated that she and her boyfriend were not married and might possibly marry in the future but had no specific plans or date to marry each other. Donahue stated, "Oh, I'm really old-fashioned, and I don't approve of that sort of thing. I don't rent apartments to unmarried couples." Donahue further related that she had previously rented to an unmarried couple but regretted doing so and refused to do so again. 1 Donahue did not provide Terry with a rental application. Terry never saw the inside of the La Reina Avenue apartment. Terry hung up the telephone and told Wilder what Donahue had said about not renting to an unmarried couple. Terry and Wilder were shocked, offended and upset by Donahue's rejection of them. The next day, Wilder continued their search for an apartment. Terry remained upset that they would be "quizzed about their personal life," and was confused about what to do and how to "present [themselves] to a prospective landlord."

As the end of the last week of the rental period in their existing apartment approached, Terry and Wilder disagreed, bickered and became nervous and frustrated. Terry and Wilder took time off from their jobs to search for an apartment. They also contacted the Department of Fair Employment and Housing (Department). By the end of the last week in February, they found an apartment in Downey for $575 per month. The apartment had no laundry facilities, was located on a noisier street, needed cleaning and had no stove or refrigerator, which they had to purchase for $800. The new apartment was small but had two bedrooms, and there was no additional charge for the use of half of a two-car garage. On the rental agreement for that apartment Terry falsely signed her name as "Verna Terry Wilder," but eventually told their landlord that she and Wilder were not married.

On March 10, 1987, Terry and Wilder each filed complaints with the Department alleging housing discrimination based on marital status. The Director of the Department thereafter charged the Donahues with arbitrary discrimination by a business establishment in violation of the Unruh Civil Rights Act (Civ.Code, § 51; Gov.Code, § 12948) 2 and unlawful housing discrimination based on marital status in violation of the Fair Employment and Housing Act (Gov.Code, § 12955, subds. (a), (b), (c) & (d)). 3 After an administrative hearing in July of 1988, the hearing officer found that the Donahues had unlawfully discriminated On December 29, 1988, the FEHC declined to adopt the hearing officer's proposed decision and provided the opportunity for further argument on whether the Donahues' discrimination was exempt from the purview of relevant statutes because of the constitutional guarantees of the free exercise of religion. On August 10, 1989, the FEHC rendered its decision and ordered as follows: (1) that the Donahues cease and desist from discriminating in their housing accommodations on the basis of marital status and post appropriate public notices; (2) that the Donahues offer the same or similar housing to Terry and Wilder; (3) that the Donahues pay to Terry and Wilder $1,023 for the lost income when they could not work because they had to search for another apartment after their rejection and because they attended the FEHC hearing; (4) that the Donahues pay to Terry and Wilder $75 per month (reflecting the higher monthly rental of their present apartment in comparison to that for rent by the Donahues) from the date of their rejection by the Donahues (February 22, 1987) until they are either offered comparable housing by the Donahues or advised that no such housing is available; (5) that the Donahues pay Terry $4,000 and Wilder $2,000 as compensation for their emotional injuries; and (6) that the Donahues pay all damages ordered plus compound interest at a rate of 10 percent per year.

in violation of Government Code section 12955, and ordered, inter alia, that the Donahues pay actual damages of $2,493.34, punitive damages of $2,000, and damages for emotional distress of $7,480.

On March 8, 1990, the Donahues filed in the superior court a petition for a writ of mandate. While the Donahues' petition was pending, on May 7, 1990, the FEHC stipulated for purposes of judicial economy that an opinion from the First District Court of Appeal, holding that the FEHC lacked jurisdiction to award damages for emotional distress, was binding on the superior court while the petition for review was pending in the California Supreme Court. Subsequently, the Supreme Court reached a decision in the First District case and affirmed the impropriety of the FEHC award of damages for emotional distress. (See Walnut Creek Manor v. Fair Employment & Housing Com. (1991) 54 Cal.3d 245, 284 Cal.Rptr. 718, 814 P.2d 704.) However, the superior court did not grant the Donahues' petition on the basis of the decision of the First District in Walnut Creek Manor. Rather, the superior court granted the petition, remanded the matter to the FEHC, and ordered that the FEHC set aside its decision and permit the parties to submit further briefing. The further briefing was to address the legislative history regarding the statutory prohibition against marital status discrimination in housing and to determine whether the statute was intended to cover single people, cohabiting as a couple, or only single people, living alone, and married couples.

The FEHC appeals. 4

DISCUSSION
I. Statutory proscriptions against discrimination in housing on the basis of "marital status" protect unmarried cohabiting couples.

The Donahues contend that the FEHC's findings of unlawful discrimination are premised on an improper interpretation of the term "marital status." The Donahues acknowledge that two cases involved the protection of unmarried couples from marital status discrimination in housing. (Hess v. Fair Employment & Housing Com. (1982) 138 Cal.App.3d 232, 187 Cal.Rptr. 712, and Atkisson v. Kern County Housing Authority, supra, 59 Cal.App.3d 89, 130 Cal.Rptr. 375.) Atkisson held that a county housing authority's regulation prohibiting According to the Donahues, the Atkisson and Hess opinions misinterpreted the term "marital status." The Donahues contend that the term "marital status" relates only to a circumstance or condition regarding marriage, such as unmarried (single), divorced, widowed or married, and not to a couple's activities or life style, such as the cohabitation of an unmarried couple. The Donahues also argue that the legislative history does not establish that the Legislature...

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