Marital Status Law Reversed in Michigan

By Gregg A. Nathanson, Esq.

Question: A man and woman who are not married want to rent an apartment from you. According to your religion, they would be "living in sin." May you refuse to rent to them?

Background: On March 7, 1997, the Michigan Court of Appeals considered this issue and decided that the Michigan Civil Rights Act did not protect unmarried cohabitation. The Court determined that unmarried cohabitation is a crime in Michigan. According to the Court, because the Legislature would not have intended the Civil Rights Act to insulate criminal conduct, unmarried cohabitation does not enjoy civil rights protection. Therefore, Michigan law permitted a Landlord to refuse to rent to an unmarried couple who intended to live together.

Discussion: On December 22, 1998, the Michigan Supreme Court overruled the Court of Appeals and reached the opposite conclusion. McCready v Hoffius and Baiz v Hoffius.

The Landlord made three arguments which the Supreme Court rejected. First, the Landlord claimed that the Michigan Civil Rights Act does not guarantee unmarried people the right to live together. The Civil Rights Act provides that any landlord, real estate broker or salesperson shall not refuse to engage in a real estate transaction with a person on the basis of ... marital status. The purpose of the Civil Rights Act is to prevent discrimination based on membership in certain classes, and eliminate the effects of offensive or demeaning stereotypes, prejudices and biases. By including "marital status," the Legislature probably intended to prevent discrimination against single-parent families who were having trouble finding housing. There was no evidence that the law intended to protect unmarried couples. Also, the public policy of Michigan favors the institution of marriage. Notwithstanding this, the Court concluded that "unmarried" is a form of "marital status" protected by the Civil Rights Act.

The Landlord's second argument was that, since unmarried cohabitation is illegal, it should not be protected by the Civil Rights Act. An old Michigan criminal law provides that, "any man or woman, not being married to each other, who shall lewdly and lasciviously associate and cohabit together ... shall be guilty of a misdemeanor. This crime is punishable by a fine of up to $500 or up to one year in prison. The Supreme Court concluded that this law had not been actively enforced for nearly sixty years, it does not prohibit cohabitation per se, and there was insufficient evidence that the prospective Tenants intended to engage in "lewd and lascivious" behavior.

Finally, the Landlord argued that being compelled to rent to an unmarried couple violates the Landlord's free exercise of religion under the United States and Michigan Constitutions. The Court concluded that the State's interest in providing equal access to housing outweighs the need to respect the Landlord's religious beliefs in this case. If the Landlord chooses to participate in the real estate market by offering housing for rent, the Landlord must comply with the Civil Rights Act.

Conclusion: Under these particular facts, the Michigan Supreme Court has now spoken. Landlords cannot refuse to rent to unmarried couples simply because they are unmarried. Any landlord who does so will be discriminating on the basis of marital status, in violation of the Michigan Civil Rights Act. Stay tuned for future developments.

© 1999 Gregg A. Nathanson, Esq. All Rights Reserved

Reprinted with permission from Building Business & Apartment Management (March 1999), publication of the Building Industry Association of Southeastern Michigan.

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