SAN FRANCISCO—A federal appeals court decided Oct. 19 to reconsider a January ruling that allowed landlords not to rent to unmarried couples.

The 9th U.S. Circuit Court of Appeals ruled last January that enforcing state and local anti-discrimination laws on marital status would violate the free expression of the religious beliefs of landlords.

A majority of the 21 active judges in the appeals court ruled to set aside the January ruling and referred the case, known as Thomas, et al. vs. Anchorage Equal Rights Commission, et al., to a new 11-judge panel that will hear oral arguments in late March.

“We're pleased to have a full hearing and look forward to making our case,” said David Levi, executive director of the Equal Rights Commission in Anchorage, Alaska.

“From our perspective, marital status is the law,” Levi told the Register. “We're just enforcing the law.”

Many religious groups such as the Family Research Council, Focus on the Family and even the Mormon church sided with the landlords, stating that this isn't about discrimination but about religious freedom.

“If you enforce these laws, you are burdening the free exercise of religion,” said the landlords’ attorney, Kevin Clarkson.

Tenant activist James D. Smith, who filed a friend-of-the-court brief for a similar California case in 1996, argued that religious convictions do not justify discrimination. “The owner of the rental commodity has never been able to place religious norms on the transaction,” he said.

Clarkson said that the landlords have no intention of imposing their religious beliefs on anyone else. “They just want to manage their property consistent with their religious beliefs,” he said.

He added said that if unwed couples find that too intrusive they are free to find apartments elsewhere. In good conscience, he contended, the landlords believe they should not have to choose between obeying God and respecting the law.

Smith countered that landlords had more options.

“They can turn over the renting of the apartments to a Realtor that won't necessarily adhere to their religious beliefs but will comply with the state law,” he said. The landlords could also use the property in another manner or leave the housing market altogether.

“They don't need to lease property,” Smith said.

Smith said he thinks that the January decision by a federal court of appeals was an unfair judicial intrusion into the state of Alaska's anti-discrimination laws. “This is just gross judicial activism,” he said.

Clarkson also blamed judicial activism, but blamed the Alaska Supreme Court. “I think the judicial activism is from those who tried to change the Alaska law to include cohabitating couples under the marital status category,” he said.

“Cohabitation is a conduct, not a marital status,” Clarkson told the Register, and thus should not be defined as a class with legal protection under anti-discrimination laws.

The Thomas vs. Anchorage case is the first to enter federal courts, but a few similar cases have risen to state supreme courts in recent years.

Last December, the Michigan Supreme Court refused to recognize the right of a married couple not to rent to unmarried couples.

In McCready vs. Hoffus, Judge Marilyn Kelly wrote that unmarried cohabitation is included under the marital status in Michigan's anti-discrimination laws.

In 1996, the California Supreme Court ruled that the state's need to provide “equal access to such a fundamental need as housing outweighs defendants’ religious beliefs that they should not rent to an unmarried couple.”

The court added that the defendants did not have the right to interject their personal beliefs on private conduct into a contract which the state is responsible for overseeing.