State Ex Rel. Cooper v. French

manifestly compensation Appeals contrary judge’s modification of the unless evidence, disability upon permanent partial rating. the which rests After decision basically application thorough of a statute review medical the evidence undisputed a conclusion of applicable disability facts involves as the sched- well binding ules, on this law which is not court. Compensa- believe the Workers’ we Welding, N.W.2d 243 Bradley Appeals appropriately v. Vic’s rated Court (Minn.1987). employee’s disability the under the herniat- 5223.0070, category. subp. ed disc Minn.R. that the employer maintains Work- (5) l.B.(l)(a), (1989). Appeals erred Compensation ers’ Court affirming of vacation and the inclusion Affirmed. holiday in the the em- pay calculation wage weekly

ployee’s average based on subd. That

Minn.Stat. § part provides as follows:

statute daily wage

“Daily wage” the means employment engaged in the employee Minnesota, by Stephen STATE of W. injury time of but does not at the COOPER, Commissioner, Department gratuities paid directly tips include and Rights, Respondent, of Human by customer of the employee to an employer by and not accounted employer. If employee to FRENCH, Petitioner, Layle Appellant. wage daily received or amount No. C2-89-1064. by employee the em- be received ployment engaged inju- in at the time of Court Minnesota. ry irregular or difficult deter- was Aug. 31, 1990. mine, part if the employment time, daily Rehearing wage computed shall be Denied Oct. 1990. dividing employ- the total amount the employment in actually ee earned in such weeks, by

the last 26 the total number of

days employee per- actually in which any employ- of the duties of such

formed * * *. ment holiday pay in- were

Because vacation wages paid employee, to the

cluded in the Compensation Ap- Court of Workers’ compensation

peals concluded

judge properly included the vacation and

holiday agree. pay wage in the basis. We statute, plain language of the

Under the actually holiday pay

vacation and earned wage included basis calcu- be

lation.1

III. remaining pertains issue Compensation Appeals’ Court

Workers’ rule, plain language Although includ- employer has this court to the statute. asked alternative, holiday holiday pay pay without also in- that if vacation vacation included, days corresponding cluding corresponding vacation num- are to be then the anomaly, days holidays holidays in the calculation seems ber taken should of vacation calculation; question properly wage is a more addressed also in the basis be included contrary legislature. appear to be but that would Anderson, Marshall,

James R. appel- for lant. III, Gen.,

Hubert H. Humphrey, Atty. Kircher, Andrea Warren, Mitau Carl M. Pott, Sp. Gen., Earll M. Attys. Asst. St. Paul, respondent. for YETKA, Justice.

Appellant guilty was found of discrimina- judge an administrative law complaint whom a Depart- filed with the ment of was referred for hearing. Appellant had refused to rent his property to one Susan Parsons because she planned to live there with her fiancé. A trial de novo before the district court was denied, appeals and the court of affirmed the action of the judge. administrative law French pay was ordered to in com- $368.50 pensatory Parsons, damages to $400 anguish mental suffering, and $300 penalties. civil We reverse the administra- judge tive law and the appeals. court of summary A of the facts are as follows: French occupied owned and a two-bed- (“subject room house property”) in Mar- shall, Minnesota, moving until to a house purchased he in the country. While at- tempting to subject property, sell French rented single it to both individuals couples. married From January to March French advertised subject property being available for rent. On 22, 1988, February agreed French to rent property accepted to Parsons and security deposit. check as a $250 thereafter, Shortly French decided that relationship Parsons had a romantic fiancé, Jenson, Wesley her and that the two likely engage in sexual relations out- marriage subject property. side of on the February On French told Parsons changed that he had his mind and would property rent the to her because un- opposite living married adults of the sex together were inconsistent with his reli- gious beliefs. French is a member of the Marshall, Evangelical Free Church his couple beliefs include that an unmarried neither the the Human together having sexual relations any religion nor marriage Despite be- sinful. free exercise outside French, neither Parsons ing questioned arguments provided a de- other French’s French were nor told whether petition Jenson granted French's fense. We relations on planning to have sexual further review. dispute is in subject property. record summary judg appeal from On an knowledge of appellant had as to whether ment, (1) questions: whether ask two we activity her sexual with Parsons’ intended any genuine issues of material there fiancé, deny an did not but Parsons (2) erred the lower courts fact and whether if queried by French. Even intent when application in their of law. sexual relations Offerdahl they would not have had Clinics, University Hosp. Minn. v. living French that property, on believes of 425, (Minn.1988). 427 426 N.W.2d “appearance of together constitutes on not have rented to them evil” and would Initially, department must es admits that if Parsons that basis. French of prima facie case discrimination. tablish a Jenson, he married to had been v. ex rel. McClure State renting objected to them. 844, (Minn. Club, Inc., 370 849 N.W.2d charge a of discrimination Parsons filed 1985), dismissed, 1015, 106 appeal 478 U.S. against respondent depart- French with 3315, 92 L.Ed.2d 730 We mari- French committed alleging ment that appellant’s must examine whether refusal in violation of tal status discrimination prima rent Parsons constituted a facie (MHRA) Rights Act Minnesota Human prohi Rights Act’s violation of the Human subject proper- he to rent the when refused marital status discrimination. bition of ty planned to live there to her because she part: provides The act in relevant Following investiga- fiancé. an with her practice: discriminatory It is unfair tion, complaint a department issued * * * (1) owner, For an lessee against French. sell, (a) rent, or to refuse to léase granted the judge An administrative law race, of any property real because summary judgment on department partial sex, color, creed, origin, religion, national liability), ruling of French the issue that status, regard pub- status 363.03, (Minn.Stat. the act’s violated § assistance, disability, lic or familial sta- 2(l)(a) (1986)) prohibition marital subd. tus. rent by refusing status subject property to Parsons because 363.03, applied 2. subd. As Minn.Stat. § single fiancé she with her was case, French was the owner and lessee this Following rejected French’s defenses. subject property, and at- Parsons damages, hearing judge found a tempted property rent from him. for $368.60 French liable to Parsons I. Status” “Marital Definition of damages in men- compensatory and $400.00 addition, the anguish suffering. tal In (AU) judge law The administrative penalty of to be judge $300 assessed a civil appellant refused to rent found French, paid the State of Minnesota single she Parsons because “was damages. punitive but declined to award person planned to cohabit1 with another a in dis- de novo French's motion trial opposite sex.” version of MHRA in court was denied. trict alleged effect time and when certiorari, discrimination occurred issuing French a writ of After charge filed did not contain defini- was panel appeals affirmed court tion of the term “marital status.”2 See be- discriminated Parsons French (1987 Supp.). of Minn.Stat. 363.01 her marital violation cause of status § 1988, together amended the MHRA a sexual 2. to live "Cohabit” means "clarifying purpose of the definition of relationship legally for the married. when 26, Apr. English Heritage Dictionary discrimination.” Act marital status American (New Dictionary). (1980) College Minn.Laws 918 Language § ch. 1988 that, gether in violation inter It is well settled in the Minn.Stat. statutes, pretation ambiguous court Such an [fornication statute]. 609.34 required legis to discover and effectuate employment policy would thus under- lative intent. State on Forslund preferred enjoyed by status mine the Behalf of Bronson, (Minn. N.W.2d marriage. the institution of 1981). ambig The term “marital status” is considerations, In view these we susceptible than uous because it is to more employment hold the policy respon- meaning, in namely, meaning one dent presumptively invalid under Minn. cohabiting couples cludes and one which Stat. subd. 1. Partnership, Mister v. A.R.K. not. does Kraft, N.W.2d (emphasis added) at 388 Ill.App.3d 143 Ill.Dec. (footnote omitted). The court unani- Kraft (1990); see Alley, 553 N.E.2d mously concluded that the fornication stat- Marital Status Discrimination: An ute expression valid Prohibition, Amorphous Fla.B.J. public Moreover, policy. court Kraft (1980), approval Cybyske cited with in ignore did practical the destructive ef- Independent 196, School Dist. No. contrary simply fect of a ruling because (Minn.1984). 261 n. 4 In order N.W.2d there nowas direct evidence of fornication. construing that to show “marital status” to that, easy It is to see impor- but these cohabiting couples include is in unmarried public policies, tant decision Kraft public policy, legislative consistent with in been different. tent, court, previous decisions of this it respondent cites State ex rel. necessary history is to examine the Sports Club, Inc., McClure v. & Health interpreting MHRA and our cases it. (Minn.1985), 370 N.W.2d 849-50 as The MHRA in add was amended 1973 to binding precedent as to the definition of prohibition against “marital status” in the context of cohab- May the basis “marital status.” Act of reading A of Sports & itation. careful ch. 1973 Minn.Laws § Club, however, Health reveals that this (codified 363.03, at Minn.Stat. § Sports misplaced. reliance is In (1988)). court, construing This in subd. Club, this court said: consistently term “marital status” has Peterson, dissent, argues Justice that legislature’s policy looked to the of discour- predicated the discrimination upon claim aging practice pro- of fornication and questioning employees applicants tecting See marriage. the institution of persons on cohabitation of unmarried is Kraft, Wilson, Inc. v. State ex rel. ground not a under the statute for find- (8-0 (Minn.1979) decision). N.W.2d though discrimination. Even we presented question of whether Kraft contention, agree with his yet employer’s anti-nepotism policy an consti- appears us Sports record clear to that marital tuted status discrimination within beyond permissible and Health went far the MHRA. Id. at 387-88. meaning of questioning employees ap- bounds answering question In in the affirma- plicants in clearly prohibited by areas tive, Chief Justice Sheran stated: act.

Endorsing a narrow definition of marital added). Id. at 850 (emphasis n. 10 uncritically upholding status and an em- Sports & Health Club ma- contention ployment policy respondent’s as such jority agreeing discourage similarly em- with was Justice Peter- could situated hearing son’s ployees marrying. observation that the examin- a locale acknowledged predominant employer er where “a clear inference of sex- enforced policy, pressures might cohabiting couples” ual between economic relations similarly preposterous lead two situated and his conclusion individuals that “[i]t to- live impose upon employer, par- forsake the union and sanctions 363.01, (codified August at Minn.Stat. until subd. effective Minn.Stat. definition, however, (1988)). (1988); ap- This does not 645.02 see also Minn.Stat. § 645.21 (1988) effect). ply against (presumption in the instant because it case did not become retroactive added). together, Read employer, (emphasis em- ticularly this refused to Id. who Sports & Health Club Kraft, Cybyske, and ploy persons conduct constitutes whose that, ex- proposition absent stand for the (Peter- at 872 criminal Id. misbehavior.” term “mari- guidance, the press legislative Thus, son, J., dissenting). man- construed in a tal status” will not be unanimously agreed court Health Club policy state’s ner with this inconsistent is not that evidence fornication direct of the insti- against fornication and favor unequal necessary and that treatment marriage. tution of sta- based on cohabitation was “marital response Cybyske to the legislative re- Accordingly, if tus” discrimination. legisla- decision also demonstrates truly “obliged spondent feels to follow expand definition not intend to ture did precedent,” clear it must established penalize of “marital status” order no dis- clude there was marital status unmarried, refusing to rent to landlords present case. crimination cohabiting couples. Minn.Stat. § sug surprising Respondent makes the (1988) defines “marital status” subd. 40 long no gestion that the fornication statute follows: policy be expresses public er this state's per- “Marital status” means whether a complete into cause “it has fallen disuse.” married, remarried, single, son is divorc- implied repeal only is such a notion of Not ed, and, surviving spouse separated, aor unprecedented, factually mistaken. cases, protec- employment includes (Minn. Ford, 397 See State v. N.W.2d discrimination on the basis 1986). Ford, charged In an educator was actions, situation, identity, or be- of the in connection with consen with fornication spouse spouse. former liefs of a 16-year-old students. sual sex acts with added.) plain language (Emphasis The Although en the educator Id. at 876-77. that, in non-em- this new definition shows plea bargain agreement pursu tered into a cases, legislature to ployment the intended pleaded guilty to different ant to which he individual, only the address status of an charges, suggestion any no by there was relationship a not an individual’s with was a nulli one that the fornication statute fiancé, fiancée, spouse, or other domestic ty- extremely partner. language The broad “and, phrase employment the following defining scope approach the Kraft legislative recognition cases” constitutes in light of of the term “marital status” fundamentally employment that cases are legislative Cybyske intent was followed housing the different from cases such as 196, 347 Independent Dist. No. School case at bar. (Minn.1984)(5-2 decision). In N.W.2d 256 legislative history of this subdivision however, this declined to Cybyske, court legislature the indicates that did intend the definition of “marital status” extend protection to to extend the of the MHRA encompass discrimination to distinctions unmarried, cohabiting couples in area the on the conduct of a employer based legislative housing. hearing a on a prospective employee’s spouse. See id. clarify for an act to the definition of bill conclusion, reaching this court 261. In status,” “marital State Human stated: explained the Cooper Commissioner bill pro- intend legislature did not to being response Cybyske a case. particular posture, political a scribe H.F. H. Hearing on Civil Law Sub employee em- of an whether Comm., Minn.Leg., 75th Feb. comm. of Jud. spouse, ployee’s (audio tape). Representative term marital Act. Nor do we think the Quist, language of objecting to the broad to include status should be construed bill, hypothetical referred to a scenario Here excluded. what rent in which a landlord would be forced to for the alleged person immediate reason discrim- spouse polygam whose was a Representative Quist is not directed at institution ist. Id. indicated ination housing employment were differ- marriage itself.

^ language ent that the situations and bill’s lord’s apartment refusal to rent an to un- broad, housing. at least persons was much too as to opposite married of the sex. Mis- Cooper ter, Ill.App.3d 116-17, Id. Commissioner stated that he 143 Ill.Dec. at impact would reconsider of the bill 553 N.E.2d at ascertaining 1159. In housing report intent, legislative area back to the the court observed that: hearing Id. At the subcommittee. next interpretation Plaintiffs’ the Act bill, an amendment of- bill was us legisla- conclude that the the extremely fered that confined broad protect ture intended to from discrimina- language employment only. cases Hear- tion those individuals who choose to co- H. on H.F. Civil Law Subcomm. person habit opposite sex Comm., 75th Minn.Leg., of Jud. Feb. entering marriage. without into The for- (audio tape). limiting The amendment statute, nication as it plain- existed when definition of broad “marital status” attempted apartments, tiffs to rent the employment cases was ultimately enacted policy evidenced this State’s Finally, noting into law. it is worth practice. plaintiffs’ We believe inter- subsequent attempts expand defini- pretation of the Act is in conflict with the tion of marital status also failed. For ex- longstanding policy reflected the for- ample, point, one proposed definition Statutory provisions nication statute. re- married, divorced, “single, included wid- lating subject same matter should owed, separated, or other like status harmoniously be construed possi- where * * *. See 4 Journal of the House of Rep- ble. (75th resentatives Minn.Leg., Mar. [by expresses Such a stance this court] 1988). This “or other like status” did not approval neither nor disapproval of dis- survive in the final bill. cohabitation; couples creet who wish to together live being without married can It is the legislature obvious that did so, certainly still do but must protection intend to extend the find object who landlord does not to the unmarried, cohabiting MHRA to include arrangement. pro- The Act’s couples housing failure duty cases. It is the tect such ’‘discrimina- from Cybyske this court to follow and decline to merely legislature’s tion” evidences the construe the term “marital “to in- status” hesitancy require to landlords to ac- legislature clude what the excluded.” See quiesce. Cybyske, 347 N.W.2d at 261. 114-15, Ill.App.3d 197 at 143 Ill.Dec. at Other which courts have the addressed 171-72, (emphasis 553 N.E.2d at 1157-58 same issue considered have their state’s added). policy ex- respect to fornication as Foreman, Similarly, in the Alaska Su- pressed statutory in law. v. See Foreman Court, preme in ascertaining legisla- its Comm’n, Anchorage Rights 779 Equal as to of meaning ture’s intent the “marital 1199,1201-02 (Alaska 1989); P.2d Mister v. status,” entirely fact relied on the that Ill.App.3d A.R.K. Partnership, 197 Alaska’s fornication statute had been re- 113-14, 143 N.E.2d Ill.Dec. 553 pealed years concluding earlier in that facts Mister unmarried, protection cohabiting for cou- were virtually to case identical the instant ples was included. Anchorage Foreman v. except the record silent as to de- was the Comm’n, Equal 779 P.2d 1201- alleged fendants’ See beliefs. least, very 02. the At the before state Mister, 107-10, 197 Ill.App.3d 143 Ill. French, imposes repeal on it must sanctions 167-68, Dec. at 1153-54 N.E.2d at the fornication statute. (1990). Mister, In court held that Illinois Respondent Sports cites prohibition Act’s & Health Club support argument discrimination on sex of its of that French basis gave does up rights “by status3 land- constitutional enter- include a his 3. Illinois law defined "marital as "the divorced widowed." ch. status” Ill.Rev.Stat. married, legal being 1-103(J) (1987). single, status of separated. ¶ g Constitution, protection the issue of As States public marketplace.” outlined

ing the above, distinguish- religious liberty under Minnesota employment cases addition, housing In preserved ap from cases. for properly able was Constitution clear court made it Sports & Health Club light of the unforeseeable peal. in that case was changes established first amendment practiced aby it was “pernicious” because in recent set decisions law forth engaged in' corporation Minnesota business Court, de justice United States for and the discrimination profit business analyze present case mands that we main to “the decision irrelevant Minne light found in the protections the work.” perform Sports competence to Din, Employment sota Constitution. N.W.2d Health & v. Oregon Dep’t Human Resources of thing prohibit entity which is one It U.S.-, Smith, S.Ct. doing privilege availed itself of has (1990); v. Hersh L.Ed.2d 876 corporate form profit for in the business — U.S.-, 1918, 109 berger, the basic denying Minnesota residents (1990) court’s (vacating this L.Ed.2d 282 living. employer An right to earn a judgment Hershberger, State em- over what an entitled to less control remanding (Minn.1989)and N.W.2d 282 place employ- away does from the ployee consideration). case for further ment, but, here, renting his French was Fuller, 374 As we said in State v. it was sale former residence while (Minn.1985): It market. is unrea- depressed real estate N.W.2d 722 sonably cynical say that his choice is supreme a state court It is axiomatic that not rent at all. Eco- simple: that he need of- may interpret its own constitution to require him seek necessity may nomic greater rights protection fer of individual may income this critical rental In- than the federal constitution. does wage underly- income him as need for deed, state, highest court as the Health Club decision.4 “independently responsible we are hand, imposed other what burden is On the rights citi- safeguarding the [our] rent, Parsons enable her but ” are, be, courts and should zens. State premises? her fiancé on the live with defense for individual the first line of astonishing to me simply It is system. liberties within federalist legislature in- argument is that the made added) (citations (emphasis omit- Id. at 726 protect promote fornication tended ted). people of the State of Minnesota lifestyle corrodes institutions which religious liberty. always have civilization, cherished our sustained to the Constitution family Preamble namely, marriage life. If the provides: protect cohabiting State Minnesota intended part- types of domestic and other Minnesota, We, people of the of the state ners, legislative The it have said so. our reli- grateful to God for civil and history of indicates that an this statute desiring perpetuate and gious liberty, attempt by to do this was defeated a sub- blessings and secure the same to our- its majority of the stantial Minnesota House posterity, ordain and selves and our do Representatives. It is the role of of this Constitution. establish court, light in of the fore- especially this added.) (Emphasis The Minnesota Consti- protections analysis, such going to read tution, unlike the United States Constitu- MHRA. into the tion, liberty impor- religious as more treats II. Minnesota Constitution government. formation of tant than the Preamble, (“[I]n U.S. Const. order arguments to this Although, * * *.”). perfect union court, form a more appellant emphasized the United $5,481 $6,470 judge and that in 1988. law found 4. The administrative $3,851 of had income French a net language pertinent The in the Minnesota The convention assembled at time when addressing religious liberty Constitution immigration very large had become and as follows: constantly increasing. was The immi- grants right every nearly

The man God came from all the coun- worship of according Europe, largely dictates of con- tries of the his own but most from * * * infringed class, science shall never be Germany they and Ireland. aAs nor any industrious, honest, shall control or intelligent, were and of interference with the rights permit- conscience be thrifty just the material for the devel- of — ted, given or any preference by be law to Besides, opment of a they new state. any religious of establishment or mode brought them, collectively, with much worship; liberty but the of conscience They religious wealth. were also hereby secured shall not be so construed Catholics, Among sectarian. them were as to of excuse acts licentiousness or Jews, many and adherents of Protestant justify practices inconsistent with the immigrants These cordially sects. were * *. peace safety of the *. state welcomed, and it is the manifest conven- Const, I, added). (emphasis Minn. art. tion framed constitution with refer- plain language of com- this section attracting ence to them to Wisconsin. to weigh mands this court the competing most, Many, perhaps these immi- of preme Court as follows: eloquently religious practice people required by the Minnesota the state.” In adopted the practices which is sufficient has French’s special compelling interests or “inconsistent with the conscience the state science are burdened. Under this Moreover, possessing all religious, were chiefly dle States. surprising simply development the business broad who came. early history, intensely people at stake whenever may the state described failed make such a interest adopted intellectual, protection settlers Wisconsin given They interfere They represented New of the states from whence shared if desirous that the future freedom. enterprise of a present case, question found here a contends England elements protecting can show great and moral background with the Wisconsin Su- 98, constitution. peace Constitution, religious liberty Constitution is “licentious” rights and the that it state. essential to override people licentious sagacity, safety rights showing. territory culture, section, of has came They state Mid- This best who of onstrate from the MHRA unless the state can dem- an statutory purpose, interest, School added). State ex gious were the circumstances tion. bilities ity, convention formists and had forced, while some of them state grants and the lively appreciation by its members of tarian instruction was thus excluded the horrors Wisconsin, exemption history 44 N.W. ^[*] French view is it unreasonable to * <7 established Dist. and sectarian religion In not compelling came resulting rel. priceless our must No. we are to French. state shares light from Weiss v. was maintained and en- above considerations and Eight, 974-75 but in suffered under in the state’s from their sectarian intolerance religion. value granted framed compelled countries which a freedom them, 76 Wis. refusing District (1890) (emphasis overriding surrounding were say perfect * and with a rejection to conclude exemption ** the State that sec- constitu- non-con- general Bd. equal- grant state disa- 197- reli- of short, we interpret the Minnesota Con- state settled and as developed should be stringent requiring stitution a more bur- rapidly possible. They as from as chose state; wise, grants protec- sagacious, their den on the it far more number Christian men, religious imbued com- tion of freedom the broad sentiments than all, language mon to to frame their constitution. of the United States Constitution. relationships and weaken that tion of such analysis, to this we conclude Pursuant fami- marriage in the foundation of our its burden as the state has failed to sustain society? compelling ly-based in- demonstrating sufficiently a terest. 114-16, Mister, Ill.App.3d Ill. (quoting Dec. 553 N.E.2d reached the appears It that we have now Hewitt, 31 Ill. Hewitt v. 77 Ill.2d law stage in Minnesota constitutional Dec. N.E.2d probable religious views of a where (1979)). other con are numerous There be- majority of the Minnesota citizens are cohabiting couples are not texts which ing alleged by agency a to violate state legally same treatment as entitled department Today state law. we have a prime example A is couples. married that, while government proposing state employee area life and found religious beliefs and French has sincere benefits, subject health insurance a by infringed upon being those beliefs are regulated by is the MHRA. See Minn. also state, Act, neverthe- the Human (1989 1(2)(c) Supp.). subd. Stat. less, promoting access has an interest gov examples are found in the Other laws cohabiting which over- housing for the rules of erning intestate succession and right religion. his rides French’s to exercise governing privilege mari evidence in- characterizes the state’s Respondent argument tal communications. Is the now “eliminating pernicious discrimi- terest as being “perni made that these too are nation, including marital discrimina- status ” are, they If surely cious discrimination? perni- is tion.” We are told what so is it the role to make unmarried, refusing cious to treat about changes necessary. whatever are legally cohabiting couples if were compelling can a How there be state attempt even married. The state does not in promoting interest fornication when this court’s to reconcile this notion with prohib- on the books there is state statute express recognition “preferred sta- iting it? See Minn.Stat. 609.34 marriage in tus” of the institution of Moreover, duty if the state has a to enforce The court in Mister offered the Kraft. following analysis way to a statute in the least restrictive of the Illinois beliefs, religious surely it accommodate is point: Court on this require less Parsons to restrictive abide policy questions major public There prohibiting the law fornication than to determining whether, under involved breaking compel cooperate French to it. circumstances, and to what extent what exemption grant than French an Rather type to accord some is desirable MHRA, state would rather legal arising to claims from such status grant everyone exemption an from the for- relationships. substantially greater Of nication statute. Such result is absurd. importance rights imme- than the that, recog- argues grant- if French parties impact of such The state is diate is the able upon society exemption, nition our the institu- ed an landlords be people with marriage. legal single to discriminate Will the fact that rights closely resembling arising person who has those children even divorced response to this marriages from conventional can ac- remarried. We believe Here we are quired deliberately argument those who self-evident. choose disregard refusing to punishing to enter into what heretofore been French for commonly prohibiting to as “illicit” fornication as well as referred or “mer- a statute encourage relationships state clouds etricious” forma- his beliefs.5 point. argues this The AU concluded that there no evidence here comment on 5. The state "cohabit,” is, place couple intended to that would take indicates that the fornication together relationship. "appearance evil" belief is without live sexual When that the utterly why position specious. told he would rent to We French Parsons merit. find her, deny rejected she did not that she intended to forni- The notion, Health Club court specifically in the home. asked other courts that have cate French and none planned if to use this home have bothered to Parsons’ fiancé he confronted this issue even

H murky analysis by referring to our already entirely Since decision is based on interpretation our state statutes on involving and cases Constitution, the Minnesota we need not stitutionally suspect recognized classes. respondent’s arguments address as to are moral and There certain values insti- application of the United States Constitu- tutions that have served western civiliza- tion, and we decline to so. do We find Hill, Maynard tion well for eons. See that, statutory grounds on and on the 190, 211, 729-30, 31 8 S.Ct. Constitution, grounds of the Minnesota (1888) (characterizing marriage L.Ed. 654 rights refusing French was within his to family society, and as “the foundation rent to Parsons. without there would be neither civili- summary, because the state should progress”), approval zation nor cited with person able be to force a to break one Redhail, 374, 384, in Zablocki v. 434 U.S. another, obey statute to because there is 673, 680, (1978). 98 S.Ct. 54 L.Ed.2d 618 less restrictive means to reconcile the stat- generation monopoly This does not have question, utes in and because of the state’s knowledge on either wisdom. Before paramount need under our constitution abandoning fundamental values insti- protect religious freedom, we reverse the tutions, pause we must and take stock decision of appeals. the court of drug present our social order: millions of SIMONETT, (concurring abusers; Justice as to rampant abuse; child a rising un- I). Part skills; job derclass without marketable chil- streets; roaming

dren children with join opinion, I Part I of the court’s Be- parent parent all; no one statutory cause issue of is construction growing up guide children one to no here, dispositive doI not reach the constitu- developing any them in set of values.6 questions. tional expect we else anything How can when the POPOVICH, (dissenting). Chief Justice contributes, arguments state itself kind, to further erosion of fundamental respectfully I dissent. Precedent estab- institutions that have formed the founda- property lishes refusal rent real our for civilization centuries? an unmarried woman she because Press, 28, 1990, purposes having sex and he refused March The Minnesota Women’s deny answer. Failure to a material fact col. 3. deny this when it would have been natural to it magazine thought-provoking 7. In a recent arti- permits if it were not true inference that cle, phenomenon the author discussed the Co., was true. See Erickson v. Erickson family accompanying breakdown social Minn. N.W.2d That problems following and made observation: renting only Parsons would insist on if she family integrity’s impor- Given essential suggest could reside there with her fiance and tance, might expected society-wide one place that no sexual take intercourse would encourage support two-parent efforts say difficult accept believe the least. Even if we detected, signs families when of rot first were tale, fairy point: it misses the happen. in the 1960s. didn’t That For the prohibit French’s beliefs to- past quarter century public policy American gether of an unmarried man and woman re- away has shied from the idea that certain gardless of whether sexual intercourse takes family forms more than others. desirable place. childbearing attempt promote There is no penalty at- within wedlock. There is little interview, press Rep- In a recent United States There is scant tached to child abandonment. recognition (D-Colorado), resentative Patricia Schroeder leading marriage, of the social benefits Congressional expert family and chil- the social contributions those who or of issues, dren's stated: themselves to conscientious childrear- devote ing. public [theWe United are number There is reward from our States] one in no divorce, violence, drug standing by programs domestic and alcohol kith and kin. * * * Zimmerman, Scared, everything. Growing Up abuse adolescent The Atlantic Monthly, June 52. Elsewhere in the article, falling growing support we are If number one in families author noted that supporting apart lies, pub- and at the bottom in fami- for incentives in favor of intact families in you housing programs. suppose do there is correlation? lic See id. at 53-56. Servs., 498-99 434 N.W.2d prima is a facie viola- Social living with her fiance (refusal Rights pregnant to hire (Minn.App.1989) Act’s of the Minnesota Human tion dis- she lives with (MHRA) of marital status woman because prohibition unmarried majority I miscon- marital status discrimina boyfriend believe her is crimination. history, policy tion); legislative public rel. v. Porter strues ex Johnson State (Minn. Inc., a presented Farms, facts to reach result 382 N.W.2d interpretation (termination of trary employee to this court’s be App.1986) person opposite MHRA. a cause he lives with discrimination). marital status sex is I. here, the refusal to at issue conduct pro- The Minnesota Human because she rent to an unmarried woman part: vides relevant living person single with discriminatory practice: It is unfair sex, opposite marital discrimina- constitutes * * * (1) owner, For an lessee prima facie violation tion and rent, sell, (a) or lease refuse to to Rights Act. Minnesota Human After race, any property real because Parsons, agreeing property to rent the to sex, color, creed, religion, origin, national French not decided Parsons had status, regard pub- status with fiance, relationship her romantic with but assistance, disability, familial sta- lic he decided Parsons her fiance also tus. likely engage in relations out- sexual 363.03, (1988).1 The subd. 2 Minn.Stat. living proper- marriage side of while on the § “marital status” as “whether French, Act defines Despite being questioned by ty. married, remarried, single, is divorc- person nor French neither Parsons Jenson told surviving ed, separated, spouse.” or a planning to have sexual whether were subd. 40 Minn.Stat. Thus, subject § property. on the relations Rights Act to “be Human Parsons, French when he refused rent accomplishment liberally for the construed knowledge of had no Parsons’ actual or 363.11 purposes,” Minn.Stat. French, [its] activity. as owner intended sexual “securpng] per- (1988), include lessor, had admits that Parsons been state, freedom from discrimina- sons sought prop- married when she rent housing.” employment [and i]n [i]n objected renting erty, he would not have Id., 363.12. “dispute,” There no as the ma- to her. claims, jority regarding whether French regard to marital status discrimina- With tion, “living knowledge intended sexual on had of Parsons’ split states are whether activity the definition of with her fiance. administra- together” falls within judge find that has taken the tive law did not Parsons “marital status.” Minnesota her fiancee in a precedents going are was live with position that it does. Our relationship, discriminating against an individ- sexual and could make clear that finding adminis- that individual such a on this record. The person because of the ual include, judge’s findings dis- trative law fact marital status lives constitutes * * * on the we “Parsons intended reside crimination. * * * property with her fiancee. employer held that an discriminated [French ] rent the it refused her that he could not of marital status when basis informed with, property to her because cohabitation job applicants hire who were to, opposite opposite two unmarried adults of sex persons not married but 849-50; be- also was not accord with his sex. 370 N.W.2d at see added). County (Emphasis “Cohabitation” Cooper v. ex rel. Mower State liefs.” League history Janey, legislative lis indicates that “marital President 1. The Commissions, concerning housing discrimina- meant to include unmarried status" was living Comm., tion, bill); during public testimony Hearing on the Hear- together. Jud. on S.F. Sen. Admin., Comm., Jud. 66th Minn. Jud. Minn. on H.F. Sen. Subcomm. on 66th Coleman, (comments (audio (audio Leg., May tape April tape) of Sen. Leg., bill, bill). Tennessen, Phyl- author of the Sen. co-author of the chief er); Lulkin, gave refusing Yorkshire House v. was the reason French for Assocs. 40, 44, rent Use of the to Parsons. word “cohab- 962, 114 Misc.2d 450 N.Y.S.2d 965 necessarily itation” does not a sex- (N.Y.Civ.Ct.1982) assume (same); Loveland v. Les- relationship, ual is often used inter- lie, 84, Wash.App. (1978) 21 583 P.2d 664 See changeably “living together.” with (marital status discrimination landlord Dictionary Webster’s New International couples). rent to married Until the (2nd ed.) Collegiate 520 and Webster’s New holdings Kraft, Sports Club, Health & Dictionary (1976). Thus, 218 French’s con- County, Mower and Porter Farms are refusing rent duct to Parsons because overruled, obliged clear, we are to follow single living she person awith precedent in established this state that dis- opposite sex constituted marital dis- criminating against an individual because crimination, prima facie violation person of individual lives with Rights Minnesota Human Act. constitutes status discrimination. ignores holdings Kraft, majority 284 N.W.2d at 387-88. State, (Minn. Kraft, Inc. v. 284 N.W.2d 386 1979), Sports Health Mower & II. Farms, County, in and Porter relying prima Once a facie discrimination case is Partnership, A.R.K. Mister v. stead on 197 established, a presumption of discrimina- 105, 166, Ill.App.3d 143 Ill.Dec. N.E.2d 553 tion arises and the appel- burden shifts to (1990), appellate 1152 an Illinois court deci prove lant to his conduct was motivated Sports Health sion & disagrees with legitimate nondiscriminatory defense. Club appeals’ the court decision Sigurdson v. Isanti County, 386 N.W.2d Mister this case. is not controlling over 715, (Minn.1986); 720 apparently represents this court and a mi Club, 370 N.W.2d remaining at 849. The See, e.g., Markham nority point of view. question whether “legitimate there awas Mortgage Co., v. Colonial Serv. Assoc. nondiscriminatory” defense for French’s vi- Inc., (D.C.Cir.1979) (marital 605 F.2d 566 French olation. asserts two defenses: free housing status to refuse fi discrimination religion process/equal exercise of and due Fore nancing living together); to fiancees protection. Comm’n, Equal man v. Anchorage appellant’s right Is first amendment (Alaska 1199, 1989) 779 P.2d 1203 (prohibi religion free exercise violated en- tion of marital status in discrimination provision of this forcement of the Human couples cludes opposite unmarried against him? there While is an sex); Employment Hess v. Fair Hous right beliefs, religious absolute hold Comm’n, 235, 232, Cal.App.3d 138 187 Yoder, v. 205, 214, 219, Wisconsin 406 U.S. (1982) Cal.Rptr. 712, (Fair Housing 714 1526, 1532, 1535, 92 S.Ct. 32 L.Ed.2d 15 prohibition Act’s of marital status discrimi Connecticut, (1972); Cantwell v. 310 U.S. nation includes unmarried 296, 303, 900, 903, S.Ct. L.Ed. 60 84 1213 opposite living together); Atkisson v. sex (1940), religiously grounded conduct is not Auth., County Housing Kern 59 Gal. Roy, Bowen v. absolutely protected. 476 89, 99, 375, (1976) App.3d CaLRptr. 130 381 693, 699, 2147, 2151-52, U.S. 106 S.Ct. (marital 90 status discrimination to evict ten Yoder, (1986); 220, L.Ed.2d 735 406 U.S. at living person ant opposite with Brown, 1535-36; 92 S.Ct. at sex); Zahorian v. Russell Fitt Real Estate Braunfeld 599, 603, 1144, 1145-46, 754, 366 U.S. 81 S.Ct.

Agency, 62 6 301 757 N.J. A.2d (1973) (marital Although L.Ed.2d 563 the free in ex- status may provide ercise individual young, clause an an cludes refusal to rent to unmarried Mun exemption ap- the enforcement of an together); women who desire to live roe v. 76th see Thom- plicable government regulation, Realty Corp., East 113 344 Bd., 707, 718-19, as v. Review Misc.2d N.Y.S.2d (marital (N.Y.Sup.Ct.1982) (1981); status discrimi S.Ct. L.Ed.2d Verner, 398, 408-09, of the Sherbert v. nation to couple evict unmarried 374 U.S. opposite togeth- 1796-97, sex because 10 L.Ed.2d 965 riage living together automatically is sinful (1963), does not the clause [and] ‘appearance of evil’ constitutes a state statute. conflict with override sincerity of opposed.” I am also Instead, prac- which an individual’s burden on undisputed, French has these beliefs is must balanced tice of beliefs requirement. satisfied this in the burden- the state’s interest Yoder, regulation, some 406 U.S. Religious 2. Burden on Belief. 1532-33, permitted the burden S.Ct. at overriding Second, the state interest claiming exemp- whenever an individual cannot be compelling and the interest applicable government must show the by alternative means. United reli- regulation sincerely achieved held burdens Lee, 252, 257-58, 102 leading U.S. A States gious 455 belief. treatise summa- 1051, 1055-56, (1982); 127 71 L.Ed.2d S.Ct. rizes:

Yoder, 215, at 1533. 406 U.S. at 92 S.Ct. degree [Bjurden looks that will, directly government’s requirement four-part leading establishes a Our ease reli- indirectly, make the believer’s or exemp- analyzing request a for an test for cost- gious duties more difficult or more on the free exer- tion from a statute based ly- and religion cise of under both the federal Tribe, supra, L. 14-12 at state constitutions: very sur- objector’s religious conflict that threatens the 1. be- whether [A] held; religion or the core values of sincerely vival of the lief is poses free exercise a faith more serious regulation 2. the state burdens whether merely problems that than does conflict belief; religious exercise of this inconveniences the faithful. reg- 3. interest in this whether the state obligation Id. at 1246. An or affirmative overriding compelling; or ulation is more prohibition combined with sanctions is and’ than a denial of benefits. burdensome regulation 4. uses the whether the state Bowen, 2154; at 106 at 476 U.S. S.Ct. least restrictive means. Yoder, at 92 S.Ct. at 1534. 406 U.S. Sports 370 N.W.2d at 851. religious appellant’s on burden beliefs claiming exemption must An individual an required to is the choice French was make parts, state can prove the first two but the religious adhering to his beliefs— between by proving successfully defend its statute living together marriage outside L. requirements. fourth the third and refusing rent to unmarried immoral — Law American Constitutional Tribe, living together, modifying or his 1988). 14-12, (2d majori- ed. at 1242 comply with the Human behavior to interpret ty’s attempt Lee, Act. U.S. at 102 at 455 S.Ct. pro- Freedom of Conscience Constitution’s 1057; Thomas, 717-18, 450 at 101 U.S. by a broadly supported is not vision more at 1431-32. S.Ct. single decision of this court. public pri- The distinction between Sincerely Religious Held Beliefs. religion activities underlies freedom vate recog- has requirement cases. The U.S. Court first is the individual sincerely nized that the Minnesota Human religious have a held belief must properly “adopted a functional defini- regard to the contested matter. Thomas, 714-16, public at tion of that reaches at 101 S.Ct. accommodations 450 U.S. Yoder, 215-16, 1430-31; public, quasi-commercial 92 forms of at various U.S. Jay- conduct.” Roberts v. States United subjective, per- at 1533-34. This is S.Ct. cees, test, question 468 U.S. 104 S.Ct. we are not sonal Lee, of this belief L.Ed.2d propriety or correctness 257, Supreme Lee, at Court stated: “When followers religious doctrine. U.S. 1055; Thomas, particular sect enter into ac- at commercial U.S. S.Ct. choice, 714-16, According tivity as matter limits at 1430-31. S.Ct. accept conduct as a matter French, outside of mar- on their own he believes “sex superim- public marketplace and faith are not to one is subjecting conscience be one- posed statutory behavior, concerning public schemes self to laws binding activity.” on others in that 455 including laws, anti-discrimination 1057. We also must balanced first amendment recognized this distinction in & interests. There is no first amendment Health Club: right yell “fire” in a crowded theater. government responsibility Upon entering public marketplace has a ap-

[T]he equal pellant afford its citizens access to all ac- longer just could no consider his open general public. beliefs, commodations to the rights subject but became * * * * * * Sports and Health is not a rights poten- certain state laws religious corporation is a Minnesota tial tenants. The has not ex- —it corporation engaged in business business empted proper- isolated sale rental of profit. By engaging in this secular ty property other than the where the land- endeavor, appellants passed over lord resides. As respondent states “the them the line that affords absolute free- First upon Amendment does not bestow dom to exercise beliefs. right require individual an absolute oth- appellants into econom- when entered marketplace in ers to adopt those val- began trafficking arena and in the ic precondition doing ues as a business place [sic], they subjected market have free, him with or her.” Appellant is in his legisla- themselves to the standards life, private to not associate anyone prescribed only ture has not for the bene- whom he feels “appearance has the of prospective existing employees, fit evil,” but voluntarily when someone enters but also for the benefit of the citizens public marketplace he may encounter in the state as a whole an effort laws that religious are inconsistent with his pernicious eliminate discrimination. imposes beliefs. While the Act a burden on sincerely religious 370 N.W.2d at 853. French’s held belief sinful, together a such burden public activity While the scale of the here greatly lessened because it occurred large as in Sports is not as voluntarily when French entered into the legislature line has drawn the distin marketplace by crossing rental over the guishing public activity it private as — by legislature drawn line thus housing by excepting relates to rental “the —and subjecting potentially himself to burden- by occupier a resident or of a rental owner regulations prohibi- some such as the Act’s or one-family accommodation of a room tion of discrimination. marital status in rooms the accommodation” from several Rights prohibitions, of the Human Act’s Overriding Compelling 3. State’s or

including marital status discrimination. Interest. 363.02, 2(1)(b) (Supp. Minn.Stat. subd. 1989). position question We are not in a If the compelling state shows it has a or or redraw this line since the overriding reg interest for the burdensome the exemption. its wisdom determined prevent religious-based ulation it can ex activity

private exemption from the Human regulation. Lee, emption from that 455 someone, Rights extend Act does not 257-58, 1055-56; U.S. at at S.Ct. Yo French, renting as property where he der, 1533; 406 U.S. at at S.Ct. does live. Sherbert, 374 U.S. at S.Ct. 1793- If says compelling, 94. the state interest is it

French contends this distinction con- any religious apply pub- stitutional liberties do not will overbalance on burden arena, reality by entering question lic but beliefs.2 The thus is whether the 17, 1990, April Precisely cosmopolitan 2. On Court aban- because we are a na- up people every compelling tion made almost doned need state interest preference, precisely ceivable be- interpreting generally applicable when crimi- protect cause we vergence, value di- nal statute 5-4 decision written Justice luxury cannot affirm the we Scalia, who said: invalid, applied deeming presumptively means, and thus held that invidious compelling or five has a State of Minnesota justified by reli- enforcing Human cannot be overriding discrimination interest prohibition gious of marital status Id. 103 S.Ct. Rights Act’s beliefs. housing. Relying in rental discrimination housing in equal Providing access jurisdictions, very old cases other eliminating pernicious dis only possible state appellant contends crimination, including marital status dis health, safety, promoting public interest is crimination, compelling overriding is an ignores the morality, completely but this nu majority interest. The outlines state controlling prece- state, pri merous situations where the and the U.S. dent from both this court individuals, differently people treats vate Supreme Court. The facts of their marital status. because recognized there repeatedly Courts involve one individual discrimi of this case eradicating compelling is a state interest nating because against another individual Roberts, 468 E.g., discrimination. invidious hu Housing is a basic of marital status. (gender); Bob at 3254 U.S. at person’s personal regardless of a man need States, 461 University v. United Jones characteristics, legislature has and the 2017, 2035, 103 S.Ct. properly determined that should avail (1983)(race); Gay Coa- L.Ed.2d “race, color, creed, regard to able without Univ., 1, 38 Georgetown 536 A.2d lition sex, religion, origin, sta national orientation); (sexual see (D.C.App.1987) assistance, tus, public regard to status with Publishing Press also EEOC v. Pacific disability, familial status.” Minn.Stat. Cir.1982) (9th Ass’n, F.2d 2(l)(a). subd. court cannot “[A] (“elimination of all forms of lightly dispute polit a determination * * * pur- ‘highest priority.’ [the] [is a] 4* * ical interests at branches that if not equally is pose to end discrimination ' compelling.” Barry, stake are Finzer v. compelling more than other interests (D.C.Cir.1986), 1450, 1459 798 F.2d aff'd legislation that justify to have been held 312, Barry, v. 485 U.S. 108 sub nom. Boos religious of convic- the exercise burdened 1157, (1988). 99 333 An indi S.Ct. L.Ed.2d tions.”) (citations omitted). status, just like vidual’s marital or familial sim- Supreme Court case most The U.S. classifications, is irrel prohibited the other present ilar case is Bob Jones Univ- house, holding renting a job evant discriminatory practices were ersity, where relation to the individ because it “bears no religion ba- on a free exercise of defended participate ability ual’s and contribute University claimed the IRS Com- sis. The Lucas, society.” v. 427 U.S. Mathews constitutionally “policy missioner’s cannot 2755, 2762, 495, 505, 49 96 S.Ct. L.Ed.2d engage in racial applied be schools that (1976). 651 sincerely held the basis of discrimination on 602, Rights The Human is to “be con- 103 religious 461 at beliefs.” U.S. liberally accomplishment finding sincerely strued for Despite S.Ct. at 2034. (1988), 363.11 purposes,” Minn.Stat. religious held on these beliefs and burden [its] 28, “securing] persons beliefs, at 103 at which include id. 602-04 & n. S.Ct. state, 28, from pre- n. held this freedom discrimination 2034-35 & Court [i]n housing.” Id. venting clearly compel- employment is discrimination [and i]n using interpreting In ling interest the least restric- 363.12. state peyote opera- religious objector, every regulation exempt use from sacramental laws, constitutionally drug protect it is not an interest of the tions of duct that does Department respondent’s required. Employment highest rule Division To favor order. at, Oregon, prospect constitutionally et v. open Human Resources would Alfred at, (U.S.1990). required religious exemption from civic obli- Smith et analysis Arguably, apply to a gations every kind same of almost conceivable * * statute, applicable protection generally anti-discrimination Amendment’s *. First analysis necessary liberty require but such is since does not this. government Oregon meets the com- Supreme interest in case Court It reversed the constitutionally permissible pelling standard. state interest held that while it

17 Act, ever, Supreme Human the U.S. that enforcement laws that ban always Court discrimination will stated: without cost values, including to other constitutional of invidious discrimination [A]cts rights.” Hishon King Spalding, publicly goods, distribution of available 4, 69, 2229, U.S. n. 104 S.Ct. 2236 n. services, advantages and other cause (1984) (Powell, J., L.Ed.2d concur unique government a com- evils that has ring). “The Constitution cannot control apart pelling prevent wholly interest — prejudices such but neither can it tolerate may point view such conduct * * * them. Private may biases be outside the practices transmit. enti- law, cannot, reach of but the law direct tled protection. to no constitutional ly indirectly, give them effect.” Pal Roberts, at at 3255. Sidoti, more v. 466 U.S. 104 S.Ct. strong The Act his- “reflects [Minnesota’s] 80 L.Ed.2d 421 Both eliminating torical commitment to discrimi- our court’s and the prece Court’s assuring equal nation and its ac- citizens support dents an majority affirmance. The publicly goods cess to servic- available point single fails to a discrimination case Id. es.” S.Ct. at 3253. The successfully been that has defended on Roberts Court Minnesota, found under religion grounds free exercise of or a sin Act, a compelling had interest in eradicat- gle holding case that the state’s interest citi- its female eradicating any type of invidious discrimi Id. zens. S.Ct. at In compelling. nation less than Preventing Sports Club, & Health where one compel status discrimination is a Act violations was a refusal interest, ling state living together, to hire people we stated N.W.2d and discrimination in government clearly has housing permitted by rental is not the Hu overriding compelling pro- interest Rights Act man or the first amendment. hibiting employment discrimination in Religious and moral values include not public accommodation. discriminating against solely others be- pluralistic society, democratic color, sex, cause their or whom live government a responsibility has to insure with, avoiding unnecessary emotional suf- that all equal opportuni- its citizens have showing fering, tolerance for nontradition- ty promotion, employment, job lifestyles, treating al others as one having retention ar- without overcome would wish to be This supposedly treated. largely tificial and irrelevant barriers oc- couple immoral were married time status, curring gender, from beliefs furthering hearing, of the AU the values competence per- of main decision promotes. majority may It be difficult * * * form the work. The has [state an] recognize for some individuals to invidious overriding compelling interest elimi- [in] discrimination, but one not sight must lose nating sex, upon discrimination based continuing fight of minorities to be race, status, or religion marital *. protected “probable majority” from a point ignores majority 370 N.W.2d at 853. long ago of view. It was not that blacks Sports Club’s Health holding. Since widely were women viewed as second- overruled, obliged it is not we are to follow usually class citizens. Discrimination precedent. its comes in less obvious forms —such as emphasized, “In- has Court against single parents, AIDS, those with private may vidious char- discrimination homosexuals, elderly, living and those exercising acterized as a form of freedom together no less invidious forms. The —but of protected association the First effect, majority, us would have return to Amendment, never it has been “separate equal” but of day accord- where but protections.” ed per- affirmative constitutional individuals as French would be Harrison, 470, Norwood v. 455, keep neighborhoods U.S. mitted their free of (em- (1973) S.Ct. L.Ed.2d 723 “undesirables” and “nonbelievers.” Kraemer, added). Shelley phasis 10-13, v. say, “This is not to how- together saying only 840-42, (1948) couples living L.Ed. from S.Ct. capable of couples living together are forni- property enjoyment (“Equality * * * previously rented to cation. French had rights regarded by the framers people; couples single people married realiza- pre-condition as an essential equally capable fornicating prop- on his rights civil and liberties tion of other basic ** erty. inherently nothing suspect There is *.»’). people opposite about two unmarried his admits conduct Although French together. living or same sex While dowe status discrimination vio- stituted marital competing not choose between moral val- Act, Rights the Human he would lation of ues, recent majority equates prolif- Act, ignore the instead completely have us togeth- eration unmarried question central of this case contending the loosening' our social er with fabric. compelling interest does the is: “what group this Surely intended promoting co- have of Minnesota State protection deserving to also be from fornication?” French habitation and/or The decision to invidious discrimination. interest should be the state’s contends marry right, is a fundamental Zablocki v. statute, Minnesota’s fornication Redhail, 98 S.Ct. 434 U.S. “any man and makes it a misdemeanor (1978), right and the 54 L.Ed.2d 618 single have sexual intercourse women [to] privacy “personal decisions ‘relat- includes Minn.Stat. 609.34 with each other.” ” ing marriage.’ Carey Population (1988). rejected argument this we While 684-85, Int., Servs. 431 U.S. majority deci- 2010, 2015-16, 52 L.Ed.2d 675 upon sion rests it. prohibited Rights appel- Human pro- solely A refusal to rent based on a inquiring about Parsons’ lant even spective clear violation of a crimi- tenant’s status, Minn.Stat. subd. prohibited by nal is not the Human statute 2(l)(c) (1988), Parsons and Jenson had here, not the Act. This is situation absolutely duty protest their inno- no Department applying however. The not illegally questioned. cence when addi- statute, there the fornication was absolute- tion, enforcement of Minnesota’s criminal fornication, ly and fornica- no evidence suspicions up left to the statutes prima facie discrimination is not landlords, appellant individual admits case French admits he did not proven. way pre- Act in no “[t]he were know Parsons Jenson whether prosecuting charges vents State from prop- going to sexual relations on the Had Parsons told French fornication.” rent, erty he refused to but he states when planned sexual relations on the she to have and Mr. were “even if Ms. Parsons Jenson case, property may be a different but premises sex on planning to have those are facts us. This is not the before * * * * * * living together their on the involving not a case premises ‘appearance constitutes the fornicators, involving it is a case rather opposed.” There evil’ I am also to which against single people living discrimination speculation about rela- only sexual together. facts, “[djiscriminations tions, are no but Because 609.34makes forni- Minn.Stat. § supported by mere con- not to fanciful misdemeanor, French also cation con- Harrison, v. 301 jecture.” Co. Hartford aiding he abetting tends would be 462, 838, 840, 459, L.Ed. 57 S.Ct. 81 and thus subject- commission of fornication (1937). 1223 ing liability if he himself to criminal rented argument appearance of evil is with- majority to Parsons and Jenson. prohibits out The Act marital sta- enforcing merit. somehow the state is believes discrimination, here French concludes promoting tus the fornication statute in this case, point living together status assumes certain but it has failed to to what facts use duct, he can then to discrimi- make the fornication statute record nothing, however, applicable enforcement of is here. The crimi- nate. There laws, fornication, state, by the outlawing nal as unmarried fornication statute

19 law, only where types should in a court of tain occur discrimination be less than protections defendants have constitutional fact, compelling. In the District Colum- proof beyond requirement of such as the bia Appeals single Court refused out doubt, defense, right reasonable of a prohibition its preference of sexual discrim- trial, jury right right and the ination less than compelling. Gay constitutionality challenge the of such stat- Rights Coalition, 536 A.2d 38. We Moreover, to aider or utes. be liable as an should prevention reaffirm that in- abettor, per- encourage one must another Minnesota, vidious discrimination includ- course of action which he son “to take a ing status, on the basis of marital is a might not otherwise have taken.” v. State compelling state interest. Ulvinen, 425, (Minn.1981); 313 N.W.2d 428 (1988). see also Minn.Stat. subd. 1 4. Least Restrictive Means. Leasing property to a tenant not cre- does liability aiding ate criminal and abet- requirement The last is that the state ting. People County Midway Kane v. regulation use the least restrictive means Inc., Landfill, Ill.App.3d 23 321 achieving goals. the state’s Although 91, (1974); N.E.2d 49 94 Am.Jur.2d Land- government has a compelling interest (1970). lord 10 and Tenant § justifies a burden activity, Although has refused to regulation must also state show the statute, repeal Minnesota’s fornication necessary no pro more burdensome than may questionable constitutionality, it be of Thomas, mote secular interest. 450 it has fallen into disuse. Not 718, Sherbert, U.S. at 101 S.Ct. at 1432. just reported there for for two convictions 407, 374 U.S. at 83 S.Ct. 1795-96. Minnesota, nication in last see Courts found some alternatives to be Cavett, 171 State v. Minn. 213 N.W. less restrictive and less burdensome on an (1927); Gieseke, 920 v. 125 Minn. State rights. individual’s free exercise See Yo (1914), 147 con reported N.W. 663 no der, 406 U.S. at fornication, aiding abetting victions for French contends a less means restrictive we recently police prosecu noted that simply state is for the to not enforce the generally tors consider fornication stat prohibition of Act’s marital status discrimi- ute In re Agerter, unenforceable. That nation. not a less restrictive (Minn.1984). majority N.W.2d means; abrogation would complete be a case, Ford, cites one State v. N.W.2d goal preventing of the state’s invidious (Minn.1986), suggest the fornication Coalition, Gay Rights discrimination. See statute sound. remains That the defendant abrogate at 39 (refusing 536 A.2d state ultimately pleaded guilty Ford other eradicating interest sexual orientation majority’s offenses does little to bolster the discrimination). Previous cases have re- position. challenge aWhile to the fornica us, goals prevent- abolish the is not before states fused to behind statute other have struck their fornication status down statutes discrimination. equal under protection. E.g., 847, 853-54; Purvis N.W.2d at State, (Fla.1979); 377 So.2d Com Farms, 382 at 548. Porter N.W.2d The. Staub, 486, 491-92, monwealth v. 461 Pa. recognized Report recent Fairness Gender 337 A.2d problem un- couples living together. married Appellant distinguish also have us Task Force Court discrimination, types between “bad” Courts, Fairness in Gender Wm. race, upon gender, such as based or handi- (1989). fact, Mitchell L.Rev. cap, discrimination,” “good as being census now undertaken also abusers, dealers, against drug child phenomenon recognizes this will deter- living together). (people fornicators mine number of liv- unmarried breaking up French cites cases an anti- no ing parts together. Appellant’s contention that discrimination into statute discrete eradicating prohibition finding cer- status dis- the interest Act’s marital substantially hin- Rights Act would Human unworthy of enforcement is crimination goal of state’s of the der the fulfillment rejected. must be No al- preventing invidious discrimination. means less restrictive only possible appear available. ternative means sincerely grant those individuals exemption an religious held beliefs refused to Rights Act. We III.

the Human Sports exemption in & grant such an of the Hu- provision Enforcement of Club, stating: Health against French Rights Act violates man inter- overriding compelling The state’s equal process or federal due neither the eliminating based est of discrimination argues Appellant “due protection clauses. status, sex, race, religion or marital upon rights protect protection will process/equal if substantially frustrated em- could be people objects to any who landlord” deep and sincere ployers, professing as living together. (Empha- opposite sex those held religious beliefs [the added). summarily us to asks sis French could discriminate Sports & Health Club] provisions of these because find a violation against protected classes. individual penalize an the Act “seeks courts have at 853. Federal 370 N.W.2d only a funda- seeking to exercise who is religious consistently refused allow also substance, appellant ar- right.” In mental stat exemptions from anti-discrimination against your gues even if it is not University, U.S. utes. Bob Jones opposite sex persons beliefs (free exemp exercise 103 S.Ct. at 2035 together, you can still discriminate live pre accommodated” with tion “cannot be personally if dis- people you these discrimination); EEOC v. Missisr vention living together. This basi- agree with them (5th F.2d Cir. sippi College, 626 attack on the cally amounts to a facial 1980)(“creation exemp free [a exercise] discrimi- prohibition of marital status Act’s provided by greater tion than that [Title nation. seriously undermine the means VII] identify appellant failed to Not has Congress to discrimina chosen combat violated, right is but he fundamental what denied, *.”), cert. hearing provided a full administrative L.Ed.2d 994 penalty. prior being assessed a Prevent from an anti-discrimi Granting exemptions certainly legitimate ing is a effectiveness statute defeats its nation government purpose necessary to survive a Gay Rights Co preventing discrimination. process equal protection chal facial due legislature, in alition, 39. The 536 A.2d at Club, 370 N.W.2d lenge. Sports & Health 2(1)(b), has al subd. Minn.Stat. § prevent (compelling state interest exemp at 853 grants line that ready drawn a discrimination); status small- the Human tion from 96 v. renting out a room the Councils 65 & Sund scale landlords AFSCME (ra majority (Minn.1983) they live. The quist, home in which 338 N.W.2d holding ignores satisfy process our Health Club due tional basis needed to already legislature has challenge). and the fact the equal protection French’s religiously granting based drawn a line process due chal equal protection and land exemptions in the case of small-scale lenges lack merit. arguments properly majority’s

lords. If legislature. should be left to the IV. line so as legislature to redraw this wishes Discriminating against unmarried indi- like French from the exclude individuals opposite viduals with members Act, free to perfectly it is the cause or the solution to sex is neither changes legislature so. But until the do decision re- majority’s woes. societal enforced as writ statute it should be precedents of this court. jects the reasoned ten, permissible pa since it within differently or acts principles. Ap Unless constitutional rameters of overruled, we are until those cases are request exemption from the pellant’s for an clear, obliged prece- to follow established in this state.

dent

WAHL, Justice. join Popo-

I the dissent of Chief Justice

vich.

KEITH, Justice. join Popo-

I dissent Chief Justice

vich. INC., CENTER, et

OAK RIDGE CARE

al., Respondents,

MINNESOTA OF HU- DEPARTMENT SERVICES, Petitioner,

MAN

Appellant.

No. C4-89-1521. Court Minnesota.

Aug. 1990.

Rehearing Denied Nov. III, Gen., H. Humphrey, Atty.

Hubert Harris, Gen., Sp. Atty. Julie K. Asst. St. Paul, appellant. LaFond, A. Nagle,

Michael Richard J. Schaeffer, Broeker, Geer, Susan M. Fletch- LaFond, Ltd., Minneapolis, respon- er & dents.

KELLEY, Justice. petition granted We of the Minnesota Department of Human Services review portion a decision of the court appeals summary judg- which reversed department ment entered in favor regard to its assertion that because (1982) corpora- certain Minn.Stat. ch. 301 dissolved, not properly tions had its claims against them were not barred. We reverse determination, thereby reinstating judgment summary depart- awarded

Case Details

Case Name: State Ex Rel. Cooper v. French

Court Name: Supreme Court of Minnesota

Date Published: Aug 31, 1990

Citation: 460 N.W.2d 2

Docket Number: C2-89-1064

Court Abbreviation: Minn.