The Conflict Between Religious Exercise andEfforts to Eradicate Housing DiscriminationAgainst Nontraditional Couples: ShouldFree Exercise Protect Landlord Bias?

l. Introduction Traditional religious beliefs have increasingly come under fire in today's society, in part due to the widening gulf that exists between the morals and ideals of traditional religions and the views of modern secular society. The rise of the religious right in the political arena has brought about a rhetoric derogatory of all who place religion as the central pillar in their lives. The message of this rhetoric, in the words of Professor Stephen Carter, is that "believing deeply in the tenets of one's faith represents a kind of mystical irrationality, something that thoughtful, public-spirited American citizens would do better to avoid. "' Yet despite this vocal distrust of religion, many Americans hold freedom of religious belief dear. At the same time, more and more Americans are realizing the importance of the principles of equality and equal opportunity in today's diverse world. The eradication of discrimination furthers the fundamental goals of equal treatment and tolerance of a multitude of beliefs. Inevitably, as a result of the widely diverse views that exist in today's society, religious exercise and lifestyle preferences sometimes conflict. A legal problem indicative of this societal conflict arises when landlords, believing that the facilitation of cohabitation is sinful, refuse to rent to unmarried couples. The landlord's action conflicts with the government's interest in eliminating housing discrimination. While consensus is unlikely, society has increasingly accepted this living arrangement as the number of couples choosing to live outside of the constraints of marriage continues to grow.2 Recently, several courts have addressed this issue, and the majority of these decisions support the right of landlords to refuse to rent to unmarried couples based on religious exercise protections.3 This Note examines the conflict between the free exercise rights of landlords and the state's interest in eradicating housing discrimination, particularly in the context of marital status discrimination. Part II briefly discusses the development of the free exercise doctrine at both the federal and state levels.4 Part III examines the protection that local, state, and federal law provides unmarried couples.5 Part IV reviews the steps of a free exercise analysis within the framework of several recent decisions addressing landlord discrimination against unmarried couples based on religious beliefs.6 Finally, Part V raises some questions regarding the effect of recent holdings on other landlord-tenant situations, specifically when a landlord refuses to rent to homosexual or lesbian couples for religious reasons.7 II. Free Exercise Jurisprudence The First Amendment to the United States Constitution prohibits Congress from making any laws that prohibit the free exercise of religion! The Fourteenth Amendment extends this protection to state action.9 Defining this protection, the Supreme Court has recognized that the First Amendment guarantees an absolute right in religious belief.'s 10Moreover, the First Amendment ensures a conditional right in religiously motivated action, subject to state restriction under certain circumstances." The Supreme Court, in Sherbert v. Verner,'2 expanded the protection offered religious action. 13 The Court promulgated a test which provided that the government could not substantially burden religious exercise unless the state demonstrated a compelling interest. 14 However, in Employment Division v. Smith15the Court adopted a much more deferential test that allowed substantial government encroachment on religious exercise16According to Smith, the Court will not grant free exercise exemptions from a generally applicable law, despite substantial burdens the law may impose on religious exercise17The Smith decision has received a steady hail of criticism.ls In response to Smith, Congress passed the Religious Freedom Restoration Act (RFRA)19RFRA, which a wide range of religious and civil liberties organizations supported, creates a statutory right to the free exercise of religion20By adopting RFRA, Congress attempted to restore the compelling state interest test established by Sherbert2 and its progeny. …