Magazine article Commonweal

Stuck with a Satanist?

Magazine article Commonweal

Stuck with a Satanist?

Article excerpt

Suppose that you, a religious person, decide to rent out an apartment over your garage. Along comes a possible renter who seems to meet all your requirements, except that he lets slip, in casual conversation, that he is a Satanist. He tells you that he intends, while living in your apartment, to conduct certain rituals demanded by his faith. Now, it happens that your state's fair housing law prohibits religious discrimination, and you share the moral premises of that law. (The federal Fair Housing Act does not apply to rentals of single-family homes by their owners or rentals of rooms in such homes, or to buildings with fewer than five units if the owner actually occupies one of them.) On the other hand, you cannot, consistent with your own religion, allow Satanic rituals on your property. What do you do?

If you follow the law--a law you generally support--then you must allow on your property activities that your religion forbids. But if you reject the tenant because he happens to be a Satanist, you will be in violation of the law and could face a heavy fine. You might want to plead in defense your constitutional right to exercise your religion freely, asking for an accommodation of your beliefs, which means, in this case, an exception to a valid statute that applies to everybody else. But that would seem something of a long shot. The Supreme Court has made such a mess of the fight to exercise one's religion freely that there is little chance the claim for an exemption would succeed. So you would, in the name of nondiscrimination, be stuck with the Satanist.

Of course you have an alternative. You could take the apartment off the market entirely. Or you could try. It might not work, because overcoming such devices as the withdrawal of a listing is the sort of thing any good lawyer can do in her sleep. Then, assuming you were to get away with it, you would have saved your religious beliefs, but at the cost of getting out of the market. which means losing income. If no exemption is forthcoming; your unattractive choice is between going to hell by renting to someone who will engage in activities you are religiously forbidden to allow on your property and not renting at all.

The dilemma is not entirely hypothetical. Consider a case that arose in California not long ago, when an unmarried couple found their application for an apartment refused because their potential landlords, John and Agnes Donahue, believed they would be "putting themselves in the position of eternal, divine retribution" if they allowed the sin of fornication, as they described it, on their property. Because housing discrimination on the basis of marital status is forbidden in California, the rejected applicants filed a complaint. The Donahues responded that their religious freedom was at stake.

The case poses precisely and painfully the liberal dilemma when religious liberty runs up against the regulatory ubiquity of the welfare state. In late twentieth-century America, nearly everyone seems to operate with the general presumption that the government can and should regulate in whatever areas suit its constituents' fancy--unless opponents can interpose a claim of constitutional right. And as federal constitutional rights go, the right to exercise religion freely is quite near the bottom of the totem pole. But the states are free under their own constitutions to protect more than the federal Constitution does, and a friend-of-the-court brief in the Donahue case, signed by religious organizations across the political spectrum, urged the California Supreme Court to demand that the state meet a heavy burden of justification before applying the antidiscrimination law to the Donahues--perhaps even the "compelling interest" test that the Supreme Court rejected when, in its 1990 decision in Employment Division v. Smith, it allowed punishment for Native Americans required to use peyote in their religious rituals.

The Donahue case, although many may find it especially poignant, is not unique. …

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