Commentary for KQED "Perspectives"

Smith v. FEHC: Clash Between Religious Freedom and Nondiscrimination

by Marty Kassman

(Aired May 23, 1996)

People like me who spend time working to preserve civil liberties find ourselves tied up in knots quite a lot these days. All these years, we've been fighting the people who want to take America back to the bad old days of government-sponsored prayers and women as second-class citizens. Now, those same people are using our hard-earned victories to advance their extreme right-wing agendas in America's courts. And we're left with a terrible choice: argue that the law doesn't protect whatever piece of the Religious Right agenda is at issue, in which case we risk setting a bad precedent and losing some of the rights we've won; or align ourselves with people whose values we detest.

One example is a case called Smith versus Fair Employment and Housing Commission. Evelyn Smith, a landlady in Chico, refused to rent an apartment to an unmarried couple because she believed it would be a sin. State law prohibits housing discrimination on the basis of marital status. But Mrs. Smith argued that her right to free exercise of religion entitled her to an exemption.

She lost her case in the California Supreme Court in April, by a four-to-three vote that has left me with very mixed feelings. On a gut level, I was happy that Mrs. Smith lost, because I'm so repelled by her discrimination and by the prominent Religious Right lawyers who represented her.

But I'm troubled by the way the court reached its decision. The majority never addressed the central question -- whether protecting unmarried couples from housing discrimination was a compelling government interest that required infringing Mrs. Smith's free exercise rights. The majority held the State didn't have to show a compelling interest because there was no substantial burden on Mrs. Smith's religious exercise. Three justices said she could just sell her apartments and invest in something else. The fourth justice said that the federal law protecting free exercise of religion, the Religious Freedom Restoration Act, is unconstitutional. That's a law that the groups I work with fought long and hard to get passed.

Society may be better off if people like Mrs. Smith get out of the housing business. But the cost is too high if it means our courts get out of the business of protecting free exercise of religion. With a Perspective, I'm Marty Kassman.

© Martin Kassman 1996