Imagine that you are a lesbian attending graduate school in a state that has not legalized same-sex marriage. Your school offers university housing, but it has a policy that restricts housing to students, their spouses, and their children. You apply for couples' housing for yourself and your partner of five years. The school rejects your application, stating that you and your partner are not eligible for married couples' housing because you are not married to each other.
Do you have a legal claim of housing discrimination? And if so, on what theory?
The answers to these questions are still unsettled. This Article defines marital status discrimination and sexual orientation discrimination in the housing context, and it explores how courts have applied two inconsistent and philosophically distinct standards in determining whether such discrimination has occurred. While analysis of marital status and sexual orientation in the housing context is highly fact-specific, the judicial approach to these issues has led to the confusion and conflation of sexual orientation discrimination and marital status discrimination. In their attempts to disentangle the intersection of sexual orientation and marital status, courts have all but admitted that refusing gay and lesbian couples the right to marry constitutes sexual orientation discrimination under a disparate impact theory.
This Article also posits that when an unmarried same-sex couple is denied a housing opportunity, the discriminator's motivation is not always clear. The discriminator may simply deny discriminating altogether, or alternatively may justify his or her actions in one of two ways: either he or she discriminated because the couple was unmarried or because they were presumably not heterosexual. Where state law provides protections for only one of these classes (either unmarried persons or non-heterosexuals) or for neither, unmarried same-sex couples are subject to the whims of discriminatory pretext. Because the Fair Housing Act does not protect against either sexual orientation housing discrimination or marital status housing discrimination, state law governs these cases, and thus housing providers in the thirty-five states that protect only one or neither of these statuses avoid legal consequences for their discrimination by recharacterizing the facts to fit the permissible form of discrimination.
Next, this Article briefly examines the most recent attempts to provide federal protections against both sexual orientation housing discrimination and marital status housing discrimination, and it discusses the implications of those protections. Finally, the Article is supplemented with an appended table that illustrates two original fifty-state surveys, detailing which state housing laws protect against marital status discrimination and which states protect against sexual orientation discrimination, complete with citations to the relevant provisions in each state's housing code. The table also provides information on which states issue marriage licenses to same-sex couples, which states recognize out-of-state same-sex marriages, which states grant the rights and benefits of marriage to instate domestic partnerships and civil unions, and which states grant the rights and benefits of marriage to out-of-state domestic partnerships and civil unions. Analysis of how those rules of recognition affect this intersection is beyond the scope of this Article--although it is an important observation that only the exceptional same-sex couple would seek a marriage, a domestic partnership, or a civil union solely to foreclose any potential housing discrimination against them.
I. Key Terms: Defining the Intersection Between Marital Status Discrimination and Sexual Orientation Discrimination
To better understand how sexual orientation discrimination and marital status discrimination intersect, it is helpful first to provide some context and answer some basic overarching questions. …