Does Elena Kagan Support Housing Discrimination?

Property managers and landlords have been in the news lately for everything from kicking legitimate tenants out of buildings in foreclosure to offering "cash for keys" incentives to encourage renters to move out early. Landlords get a bad rap, but is that because they often abuse their power? That depends on who you ask. You just might not want to ask Supreme Court nominee Elena Kagan, because if you're anything like me, you won't like her answer.

In documents obtained and released by the Associated Press, Kagan suggested that the California Supreme Court side with a religious landlady who refused to rent to an unmarried couple because she believed sex outside of marriage was a sin. Kagan believed the landlady's right to religious freedom was violated because the court implied the landlady could simply move to another state — it isn't clear why this would solve the dilemma of renting to couples "living in sin" — and wrote that "there is an argument to be made for urging the Court to review and reverse" their decision. Of the same decision, Kagan also wrote, "The plurality's reasoning seem to me quite outrageous — almost as if a court were to hold that a state law does not impose a substantial burden on religion because the complainant is free to move to another state."

I'll admit that based on what I've heard so far, I'm down with Elena Kagan. Like any Supreme Court nominee, she's got flaws on her record. However, though I'm no legal scholar, I find this is perhaps the strangest piece of evidence against her I've encountered so far. While I don't necessarily disagree with her ruling from a legal standpoint, it nevertheless seems a great stretch that she would indignantly believe the landlady's rights were violated.

The real issue is how this law was originally written. Housing discrimination, based on a number of factors, is illegal. But, martial status in not specifically included in the Fair Housing Act. To me, this seems like an oversight, or perhaps a simple loophole, since families with children are protected from such discrimination. Isn't it a civil rights issue that non-married people — coupled or single — would be discriminated against because of their non-married status alone? I once had a landlady try to refuse my application because I was a "college student" — her loophole to get around actually refusing based on my age. But that too was illegal. So is this all about how the law is read, and by whom?

Since there seems to be little doubt that Kagan will be confirmed, I'm hoping this case is an anomaly, not a precedent for judicial rulings to come. I'm even more hopeful that she, along with her fellow justices, will take the opportunity to close these loopholes as they are presented in front of the highest court in the land. Why else are they there if not to right the wrongs enacted against the poorest, most needy among us? A few non-married couples are, quite frankly, the least of anyone's problems.

Photo credit: Harvard Law Record