Smith v. Fair Employment and Housing

• Citation: 25 Cal.App.4th 251,30 Cal.Rptr.2d 395
• Decision Date: 26 May 1994
• Docket Number: No. C007654,C007654
• Court: California Court of Appeals
• Parties: Previously published at 25 Cal.App.4th 251, 30 Cal.App.4th 1008, 34 Cal.App.4th 1708, 39 Cal.App.4th 877 25 Cal.App.4th 251, 30 Cal.App.4th 1008, 34 Cal.App.4th 1708, 39 Cal.App.4th 877, 62 USLW 2765 Evelyn SMITH, Petitioner, v. FAIR EMPLOYMENT AND HOUSING COMMISSION, Respondent, and Kenneth C. PHILLIPS et al., Real Parties in Interest.

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30 Cal.Rptr.2d 395 Previously published at 25 Cal.App.4th 251, 30 Cal.App.4th 1008, 34 Cal.App.4th 1708, 39 Cal.App.4th 877 25 Cal.App.4th 251, 30 Cal.App.4th 1008, 34 Cal.App.4th 1708, 39 Cal.App.4th 877, 62 USLW 2765 Evelyn SMITH, Petitioner,
v.
FAIR EMPLOYMENT AND HOUSING COMMISSION, Respondent,
and Kenneth C. PHILLIPS et al., Real Parties in Interest. No. C007654. Court of Appeal, Third District, California. May 26, 1994.
As Modified on Denial of Rehearing June 23, 1994.
Review Granted Sept. 8, 1994.

[30 Cal.App.4th 877] Jordan W. Lorence, Washington, DC, Cimron Campbell, Orange, TX, Mark N. Troobnick, Washington, DC, Wendell R. Bird, Law Office of Wendell R. Bird, Atlanta, GA, for petitioner.

Daniel E. Lungren and John K. Van De Kamp, Attys. Gen., Carole R. Kornblub, Andrea Sheridan Ordin, Asst. Attys. Gen., Marian M. Johnston, Manual M. Medeiros, Kathleen W. Mikkelson, Louis Verdugo, Deputy Attys. Gen., for respondent.

Thomas F. Coleman and David Link, Los Angeles, for real parties in interest.

PUGLIA, Presiding Justice.

I

The California Fair Employment and Housing Act ("FEHA"; Gov.Code, § 12900 et seq.) prohibits a landlord from discriminating against any individual on the basis of marital status (Gov.Code, § 12955, subds. (a), (d)). Real parties in interest Kenneth Phillips and Gail Randall (complainants), an unmarried couple, filed a complaint with the Department of Fair Employment and Housing (Department) alleging petitioner Evelyn Smith (plaintiff) refused to rent housing to them because of their marital status. The Department issued an accusation charging plaintiff with unlawful discrimination. Relying on her religious convictions and beliefs and the constitutional protection of their free exercise, plaintiff sought exemption from the law prohibiting housing discrimination on the basis of marital status.

Following an administrative hearing, respondent Fair Employment and Housing Commission (Commission) issued its decision finding plaintiff had unlawfully discriminated against complainants because of their marital status. The Commission awarded complainants damages and imposed certain affirmative obligations on plaintiff to effectuate the

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purpose of FEHA. (Gov.Code, § 12987; Stats.1981, ch. 899, p. 3424, § 3.) The Commission declined to rule on plaintiff's constitutional claim.

Alleging the controversy presents exclusively issues of law, plaintiff petitioned this court in the first instance for a writ of mandate to compel the Commission to set aside its decision. We issued an alternative writ to address an issue of first impression: whether the statute prohibiting discrimination in housing on the basis of marital status is unconstitutional as applied [30 Cal.App.4th 883] to persons such as plaintiff whose religious convictions and beliefs forbid them to rent to mixed gender couples who are not married to each other (unmarried couples). We shall hold that the Commission order applying FEHA to penalize plaintiff for marital status discrimination in housing violates plaintiff's rights as protected by both the federal and state Constitutions. (U.S. Const., Amend. I; Cal. Const., art. I, § 4.) Accordingly, we shall order a writ of mandate to issue as prayed.

II

The facts are not in dispute. Plaintiff, a widow, is a member of the Bidwell Presbyterian Church in Chico. She owns two duplexes in Chico the rents from which provide her primary source of income. Because of her religious conviction that fornication is a sin, plaintiff refuses to rent to unmarried couples. She informs couples interested in renting that she prefers to rent to married couples, although she rents to single, divorced and widowed individuals as well.

Complainants are an unmarried couple. When complainants expressed an interest in renting one of plaintiff's duplex units, plaintiff informed them, as was her custom, that she preferred renting to married couples. Complainants falsely represented to plaintiff they were married. Plaintiff agreed to rent one of the duplex units to them and complainants gave plaintiff a deposit.

Before moving into the duplex, complainants informed plaintiff they were not married. Plaintiff canceled the agreement, refused to rent to complainants and returned complainants' deposit. Plaintiff would have rented the unit to complainants had they been married.

Plaintiff refused to rent to complainants because of her religious conviction that sex outside of marriage is sinful; plaintiff believes she would be committing a sin if she rented to people who engage in nonmarital sex. Plaintiff explained: "I believe it's a sin to have sex out of marriage, and if I rent to [complainants] I'm also contributing to their sin and it's a sin for me. I believe that I have to answer [for] that as long as I know it's a sin and if I am assisting them in committing the sin, then I'm guilty, also."

The Commission found plaintiff violated Government Code section 12955, subdivisions (a) and (d). ¹ The Commission awarded complainants [30 Cal.App.4th 884] out-of-pocket and emotional distress damages totalling $954. ² Plaintiff was ordered to "cease and desist" marital status discrimination. Plaintiff was also ordered to post in her rental units for a period of 90 days notice announcing she had been adjudicated in violation of FEHA for refusing to

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rent to prospective tenants because they were an unmarried couple. She was ordered to post permanently in her rental units a notice to rental applicants of their rights and remedies under FEHA generally and specifically with regard to discrimination against unmarried couples. Plaintiff was ordered to sign both notices and to provide copies to each person thereafter who expressed interest in renting from plaintiff. ³ III

Religious freedom is among the highest values of our society. (See Murdock v. Pennsylvania (1943) 319 U.S. 105, 115-117, 63 S.Ct. 870, 876-877, 87 L.Ed. 1292, 1299-1301; Jones v. Opelika (1943) 319 U.S. 103, 104, 63 S.Ct. 890, 87 L.Ed. 1290, 1292; Martin v. Struthers (1943) 319 U.S. 141, 149-150, 63 S.Ct. 862, 866-867, 87 L.Ed. 1313, 1320-1321, conc. opn. of Murphy, J.) However, even the highest values must sometimes give way to the greater public good. (See e.g., United States v. Lee (1982) 455 U.S. 252, 257, 102 S.Ct. 1051, 1055, 71 L.Ed.2d 127, 132 ["Not all burdens on religion are unconstitutional."]; Sherbert v. Verner (1963) 374 U.S. 398, 403, 83 S.Ct. 1790, 1793-1794, 10 L.Ed.2d [30 Cal.App.4th 885] 965, 970.) The question here presented is whether plaintiff is constitutionally entitled to exemption from the operation of a statute designed to eliminate housing discrimination against unmarried couples where the enforcement of the statute would interfere with plaintiff's free exercise of religion.

The Commission entertained "no doubt" as to "the depth and sincerity of [plaintiff's] religious convictions...." The Commission believed, however, it lacked authority to decide plaintiff's constitutional claim and deferred the issue "to the consideration of the courts." We accept as established by the Commission's finding to that effect that plaintiff is sincere in her expressed religious conviction and belief that fornication is a sin in the commission of which she will be complicit if forced to rent to an unmarried couple. "It is not within 'the judicial function and judicial competence' ... to determine whether [plaintiff] or the Government has the proper interpretation of [her] faith; '[c]ourts are not the arbiters of scriptural interpretation.' " (United States v. Lee, supra, 455 U.S. at p. 257, 102 S.Ct. at p. 1055, 71 L.Ed.2d at p. 132.) "The determination of what is a 'religious' belief or practice is more often than not a difficult and delicate task.... However, the resolution of that question is not to turn upon a judicial perception of the particular belief or practice in question; religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit [free exercise] protection." (Thomas v. Review Bd., Ind. Empl. Sec. Div. (1981) 450 U.S. 707, 714, 101 S.Ct. 1425, 1430, 67 L.Ed.2d 624, 631 (Thomas).)

More importantly, the constitutional protection accorded free exercise of religion is not limited to beliefs which are shared by all members of a religious sect. (Thomas, supra, at pp. 715-716, 101 S.Ct. at pp. 1430-1431, 67 L.Ed.2d at p. 632.) "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." (Board of Education v. Barnette (1942) 319 U.S. 624, 642, 63 S.Ct. 1178, 1187, 87 L.Ed. 1628, 1639.) We thus accept on faith, as it were, the sincerity of plaintiff's assertion her religious

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convictions and beliefs preclude her from renting to an unmarried couple on penalty of herself committing a sin. ⁴

Compelling plaintiff to rent her properties to unmarried couples, to pay damages to the unmarried complainants for refusing out of conscience to [30 Cal.App.4th 886] rent to them, to post notices informing prospective tenants of their rights and remedies under FEHA and specifically as it pertains to unmarried couples, and to post announcements, signed by her, that she has been adjudicated in violation of FEHA for refusing to rent to an unmarried couple interferes with and substantially burdens plaintiff's free exercise rights. Plaintiff cannot remain faithful to her religious convictions and beliefs and yet rent to unmarried couples. If faced with that choice, plaintiff testified her rental units will "stay vacant." The Commission's order penalizes plaintiff for her religious belief that fornication and its knowing facilitation are sinful.

IV

The conclusion that there is a conflict between plaintiff's religious convictions and beliefs and the command of the...