Constitutionally Justified Discrimination - The Fair Housing Act, Mrs. Murphy’s Exemption, and The Right to Buy A Cake

Many argue that there is nothing left in our amended Constitution or federal legal system that allows or justifies prejudice or discrimination.  That point of view is simply not supported by fact.

In this chapter we will examine a standing law, The Fair Housing Act of 1968 and a very recent Supreme Court ruling, Masterpiece Cakeshop Vs. Colorado Civil Rights Commission (2018) to showcase two glaring examples of how weak our Constitution is in terms of taking a stand and completing forbidding prejudice and discrimination...and more broadly stiking a balance between the rights of individual vs the rights of entire classes of people.

First, it should be noted, prior to any amendments, the only form of discrimination addressed directly, in any context, in the original Constitution and Bill of Rights, is religious discrimination.  This is not surprising as escaping religious persecution was top of mind with our founding fathers.   And of course, since more than half of the signers of the original Constitution owned slaves, racial discrimination was most certainly an accepted behavior in 1788 and few saw any point in changing that at the time.  It was only through a centuries long process of amendments, civil war, civil uprisings and several significant pieces of heavily negotiated legislation that we have made any progress at all in unwinding these unpleasant facts.

But whatever progress we have made, the weight and shortcomings of the original document loom large in our society today.

The Fair Housing Act of 1968…AKA The FHA

First, it is critical to realize that the right to equal access to shelter is not granted in the Constitution nor any of its amendments.  In the United States, today, you have no Constitutionally protected right to secure shelter free of discrimination.  Period.  It is only through various laws (which are different from state to state and easily changed) that you have any protection at all.

However, the issue of providing equal access to housing has been debated since the earliest days of our nation. Over time many states and municipalities passed various laws in an attempt to fortify people’s right to access housing on fair and equal terms, free from discrimination.  While the Constitution provides for no such explicit right, it does not restrict states or local governments from doing so.  In other words, unlike speech or bearing arms, there is no prohibition in the Constitution from laws being created that deal with access to housing.  At least not explicitly.

However, state and local laws lacked consistency.  Some took a very liberal approach and others hunkered down insisting that owners of property could discriminate at will who they sold or leased their property to.  For most of that time, the Supreme Court simply demurred to the states to deal with the issue.  The rise of mortgage lending complicated things further as there was little to no regulation on how banks or other lending institutions chose whom they would lend money to and discrimination, particularly racial profiling, was rampant.

In the 1960s, as the civil rights movement grew in prominence, the issue of federal rules governing access to housing on fair and equal terms made its way up the list of priorities that needed to be resolved.    The result was not a Constitutional amendment (which would be a much stronger solution) but instead a law…the Fair Housing Act of 1968 (FHA) which is still the law of the land. The Fair Housing Act was the third and final piece of civil rights legislation passed in the 1960s.  The other two were The Civil Rights Act (1963) and The Voting Rights Act (1965).

In summary, the Fair Housing Act prohibits discrimination in the sale, rental, and financing of housing based on race, color, national origin, religion, sex, familial status, and disability. The act has two main purposes—prevent discrimination and reverse housing segregation.

Make no mistake, despite the shortcomings we will examine, the Fair Housing Act was a giant step forward in leveling the playing field for people seeking to acquire housing.  While not as strong as a Constitutional mandate, net-net, it is a very important and largely effective piece of legislation.

Before we move on, it is worth looking at the protected classes in the Fair Housing Act…. race, color, national origin, religion, sex, familial status, and disability.

The most significant thing to note is the simple fact that these classes are specifically and precisely enumerated.  They are the opposite of broad.  If the protections were broad, they would simply apply to “all people”.  This is a common theme throughout virtually all legislation passed to try and deal with the Constitution’s prejudicial underpinnings.  In almost every case, protections in laws are granted to specific classes of people…not “all people”.   Further, structurally, these sorts of laws almost always list those that are protected…vs the opposite which would be to say “everyone is protected…except a specific list that are not”.  My view is the approach to list those that are protected vs those that are not serves two rather diabolical purposes.  First, it is a political magic trick.  By listing those protected it lets lawmakers run around claiming credit for having protected those people.  Secondly, it leaves completely open the right to discriminate based on scores of other criteria that our lawmakers don’t want to list or bring attention to or is some cases would bring Constitutional scrutiny.  For example, under the Fair Housing Act, barring more stringent requirements at state or local levels, it would be completely legal to discriminate based on sexual orientation, gender identity, source of income or employer, veteran status, political party affiliation, domestic violence survivor status, or criminal record (including misdemeanors).  It is worth noting that many state laws provide for more rigid requirements than the FHA.  But many do not and as a result, it is entirely legal in those state (barring city regulations) to discriminate in housing practices against any class of people not explicitly listed in the FHA.

While this lack of broad federal protections for all people is troubling, again, the Fair Housing Act (FHA) does a fairly good job addressing the problem around racial discrimination which was the driving issue for its creation.  But as you will see, it stopped short of doing that absolutely.  And it did so for one reason and one reason only…to protect the individual’s right to discriminate…something that is clearly codified and endorsed in our current Constitution.  Don’t believe it?  Consider the following.

Contained within the FHA is something famously known as Mrs. Murphy’s exemption.   Mrs. Murphy was a fictious metaphor (fabricated by lawmakers opposing the bill) of an old woman with limited income who had no choice but to convert part of the home she occupied to an apartment to generate additional income.  The premise was, “Surely Mrs. Murphy would not be bound by all these requirements and can rent her unit to whomever she chooses”.  While we will explore Mrs. Murphy’s exemption in greater detail, in the end, the argument worked beautifully resulting in the following exemptive language (meaning the situation listed is not subject to the law) being included in the FHA… and remains there to this day:

…rooms or units in dwellings containing living quarters occupied or intended to be occupied by no more than four families living independently of each other, if the owner actually maintains and occupies one of such living quarters as his residence.

Said in plain language, if you own a four-plex (or smaller) and live in one of the units, when renting the other units, under federal law, assuming no more stringent restrictions in state or local law, it is completely and totally legal for you to discriminate anyway you choose.  Period.

Other language in the FHA provides the same exemption to non-resident landlords of single-family homes (as long as they own no more than three).  So, for example, if you own a couple of rental homes and live in say Georgia or Florida (where the state does not provide any enhanced protection beyond the FHA requirements) you don’t have to rent to Jewish people if you don’t want to…and you can look them right in the eye and say so and there is not a thing in the world they can do about it.

Now before we look at how and why these exemptions were included in the FHA (and why they bolster the case to rewrite our Constitution), I will challenge you with a basic question.  Regardless of your sensibilities (what we often call common sense), do you or do you not see these exemptions, regardless of their intent, as legally protecting some forms of discriminatory behavior?  Yes or no?  While there is a long list of reasonable arguments as to why we might think the exemptions make practical sense, I would argue there is no getting around, common sense or not, that these exemptions absolutely justify and grant explicit permission for discriminatory behavior in certain situations.  I find it wildly ironic that explicit permission to discriminate is stated so clearly in one of the most important pieces of civil rights legislation ever passed.  How is that possible?

The answer is rather simple.  Certain congressional representatives (many southern and overt racists still fuming over the Civil Rights and Voting Act which ended Jim Crowe laws) insisted on the exemptions and threatened to fight its passage or challenge its constitutionality without them.  And frankly, their argument was brilliantly constructed.  Essentially their argument was that a protected class’s civil rights can never trump Mrs. Murphy’s civil liberties (or rights as an individual).   It was very different then the Voting Rights Act.   Granting a black person clear and equal rights to vote required no compromise to a white person’s right to vote.  One had nothing to do with the other.  But forcing an individual white person to lease a home they own to any black person that was otherwise qualified?  That was something else entirely…both emotionally and Constitutionally.  The FHA was causing the rights of a class of people to crash full speed into the rights of an individual.  And Constitutional history was clearly on the side of those seeking the exemptions.   

Indeed, Constitutional scholars and the Supreme Court have maintained consistently for two hundred years, that the founding fathers were far more concerned with the rights of individuals than the rights of groups or classes of people.  Said differently, it is pretty clear in reading the Constitution that the common good was nowhere near as important as individual welfare and personal freedoms.  Further, the Supreme Court has also consistently held that the right to freedom from laws that encroach upon speech, by extension, also means protection from laws that define how people “associate”, sometimes called the “Right of Association”…meaning who we choose to hang out with (or have live on our property).   Despite there being no such right explicitly mentioned in the Constitution, the Right of Association is the basis of why there are no laws, and can be no laws, that prevent a private club from excluding blacks, Jews, women or any other class members want to exclude…in other words, from discriminating.

So, you see, a perfectly valid constitutional argument (meaning our constitution clearly supports their point of view) allowed clearly racist representatives to soften or limit the impact of a bill. In fact, they succeeded in getting language authorizing discrimination in a bill that’s primary purpose was to eliminate it!  They were able to do this because the Constitution, in fact, while not explicitly stating such (although it practically does), was designed to allow and endorse discrimination.

Said differently, not only did our current Constitution tolerate Mrs. Murphy’s exemption, it REQUIRED it in order for the FHA to avoid Constitutional challenge and almost certainly be overturned by the Supreme Court.  Do you see the contradiction?

In the end, we can write all the laws…and even amendments…that we want, but at some point, we must accept, we are in fact trying to modify or comply with a Constitution that was specifically designed to give us all the right to discriminate.

Now let’s look at how a weak, confusing, and often self-conflicting Constitution in regard to prohibiting discrimination impacts something seemingly more trivial.   The right to buy a cake (or not).

Masterpiece Cakeshop vs The Colorado Civil Rights Commission

In July of 2012, a gay couple, Charlie Craig and David Mullins, who had previously been legally married in Massachusetts, walked into the Masterpiece Cakeshop in Denver Colorado and attempted to buy a custom wedding cake for a celebration of their marriage with their friends in Colorado where they then lived.   The owner of the store refused to make them a custom cake saying it would be a violation of his religious beliefs to do so.  He offered to sell them a premade cake but would not agree to provide any customization or messaging on the cake reflecting their marriage.

Charlie and David ultimately sued based on a Colorado law (overseen by the Colorado Civil Rights Commission) that protected broad classes of people against discrimination in the delivery of any commercial service (something else the Constitution provides exactly zero protection for…nor does it provide any prohibitions from laws that would).  Included in those classes were people of any sexual orientation.   Charlie and David won the case in Colorado with the Colorado Supreme Court refusing to hear any appeals.

However, during the proceedings one of the members of the Colorado Civil Rights Commission said, arguing in favor of Charlie and David, that “Phillips (the owner of the cakeshop) can believe whatever he wants to believe, but cannot act on his religious beliefs if he decides to do business in the state of Colorado”.  He went on to further say that “Freedom of religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the Holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others”.

Those words would come back to haunt and define the ultimate outcome of the case.

After the initial ruling by the Commission and refusal of the state supreme court to hear the case, the owner of the Masterpiece Cakeshop filed a lawsuit in federal court against the Colorado Civil Rights Commission claiming his first amendment rights to freedom from laws that encroach on his religion were being violated.  Over the next 6 years, the case worked its way through the federal courts, with Masterpiece losing every step of the way until the case finally made its way to the U.S. Supreme Court.

On Monday, June 4, 2018, in what many viewed as a stunning, albeit decisive decision, the U.S. Supreme Court voting 7-2 threw out the lower court’s ruling and sided with Masterpiece Cakeshop.  Writing for the majority, Justice Kennedy, referencing the comments from the commission member, said “The Commission’s hostility (toward the Cakeshop’s owner’s religious beliefs) was inconsistent with the Constitutional guarantee that our laws be applied in a manner that is neutral toward religion.”

What is interesting about the ruling is that Kennedy supported overturning the lower court despite being a historically strong advocate for gay rights.  In the end, more or less ignoring the central theme of the oral arguments, the ruling never addressed the core issue of whether or not the first amendment protected Masterpiece Cakeshop’s action.  Essentially all the court said was the Colorado Commission did not rule without bias toward their view of religion and as a result, Masterpiece did not get a fair hearing.   They never addressed, one way or the other, whether Masterpiece Cakeshop’s actions were in fact protected by the prohibition of laws restricting religious freedoms in the first amendment.

Ruth Bader Ginsberg, one of the two dissenting judges, supported by many legal scholars, wrote an aggressive rebuke of the decision essentially saying the court had avoided the real issue of a specific gay couple being denied service for the sole reason of being gay…all based on a first amendment claim around protection of religious rights.  She was clearly frustrated by the majority of her peer’s unwillingness to deal with the real issue of gay rights vs laws restricting religious freedom …a battle many say she had wanted to fight for years.

Given his supportive track record on gay rights, many find it curious that Kennedy steered the court down the path he did.  After all, the Masterpiece Cakeshop had the potential to be a bombshell case that could have affirmed and resolved what was (and still is) a bitter constitutional conflict between religious rights and the rights of gays to engage in a non-violent lifestyle despite such lifestyle being in conflict with the religious beliefs of many.  The case had the potential to strike right at the heart of the most self-conflicting aspect of the Constitution…religious freedom…and how to balance the rights of the individual and the rights of many.

My view, which is really just conjecture, is that it was late in his career and Kennedy understood the impact of the case.   He knew that any ruling on the core issue was going to expose a horrible problem with the Constitution and there was no good resolution.  He knew that Constitutional history was on the side of the cakeshop’s right to choose based on their religious beliefs and it bothered him.  He feared if the Supreme Court was forced to rule on the actual issue presented to them, they would have to rule in favor of the cakeshop based on their protection from laws infringing on their freedom of religion and thereby, forever, giving religious freedom the ability to trump the rights of others based on who they selpt with.   And I believe it sickened him.   So, his strategy was to buy time…let the country digest the needs of LGBT community a little more…maybe a gay rights amendment or gay rights legislation will be passed in the future helping to declare the country’s will on the matter.   So, what did he do?  He found a graceful way to award the cakeshop a victory while avoiding the bigger issue.   He retired a few months later.

As a result, the question of whether gays are a protected class under the Constitution despite their lifestyle being unacceptable to many religious practices remains unanswered.  Thus, the vicious fight between civil liberties of the individual and civil rights for classes of people rages on, nurtured by a Constitution that simply cannot seem to decide between the two.

Whatever Kennedy’s strategy, avoiding the question seems to have emboldened those that believe religious freedom of the individual trumps all other rights. In recent years, aggressively exploiting a self-contradicting Constitution, many conservative states have pursued, and in some cases passed, what are broadly known as “Religious Freedom Acts”.  Most legal scholars call these laws out for what they are.  Said simply, a shell game that maliciously uses the first amendment’s prohibition on laws restricting religion to nullify or create an exception to all civil rights laws that restrict discrimination if such discrimination can be defended on religious grounds.  These laws are particularly hostile toward the LGBT community.  Essentially, many conservative states are using the weakness of the Constitution to create new Jim Crowe laws targeted at the LGBT community.  Despite damaging the case, the words of that Colorado Civil Rights Commissioner ring true …”religious freedoms being used to hurt others”.  Expect more Constitutional battles over these issues in the near future.

To be clear, the issue is not whether people should enjoy religious freedom or not.  Of course they should!  The issue is structural in the current Constitution.  The fact that our “right” to religious freedom is actually only a prohibition from the government creating laws is what creates the vicious circle between the rights of the individual and the rights of many.  Said simply, in far too many cases, based on how our Constitution is written, writing a law to protect a class of people can in fact encroach on the Constitutional rights of an individual to be free of such a law.

It seems a vicious circle and impossible to resolve.  But it is not.  It is very possible, and done in many other countries, to constitutionally grant broad and powerful religious freedoms (and other rights) to all people while still limiting the impact those freedoms have on others.   This stuff is not rocket science…but it will require rewriting our Constitution.

All that said, one thing is perfectly clear.  There is not a single federal law that explicitly prohibits discrimination against the LGBT community.  Yes, there are many state and local laws that do, but nothing in the Constitution nor any federal statute prohibits such discrimination on a national level.

Are you ok with that?  I am not.

In the end, these are just two examples that show some significant and glaring problems with our current Constitution in terms of dealing with civil rights and the issue of discrimination.  Said, simply, the document completely fails to strike any manageable balance between the rights of classes of people (or all people) and the rights of individuals.  While we have recognized the need to protect classes of people in countless pieces of legislation and even amendments, the fact is those protections are constantly limited and restricted by a Constitution that never really found any balance between those protections and the protections of the right of an individual to choose…or as some would say…discriminate.

As a result, as it pertains to civil rights and discrimination, we are left playing an unwinnable game of whack-a-mole with a document that was never designed to deal with the diversity of the world we live in today.  Just one more point on why it is time to rethink the entire thing.