Jasniowski v. Rushing
Annotate this Case
SIXTH DIVISION
March 31, 1997
No. 1-95-0365
RON JASNIOWSKI and A. AVANA ELECTRIC ) Appeal from
MOTORS, INC., ) the Circuit Court
) of Cook County.
Plaintiffs-Appellants, )
)
v. ) No. 94-CH-5546
)
BENSON RUSHING and CITY OF CHICAGO )
COMMISSION ON HUMAN RELATIONS, ) Honorable
) Aaron Jaffe,
Defendants-Appellees. ) Judge Presiding.
JUSTICE THEIS delivered the opinion of the court:
The plaintiffs, Ron Jasniowski (Jasniowski) and A. Avana Electric
Motors, Inc. (Avana), appeal from the circuit court's final order on
their petition for common law writ of certiorari. In the circuit
court, the plaintiffs sought review of an order of the City of Chicago
Commission on Human Relations (the Commission) granting relief in
favor of the respondent, Benson Rushing (Rushing), on the grounds that
they had discriminated against him because of his marital status in
violation of the Fair Housing Regulations of the City of Chicago.
Chicago Municipal Code §5-8-010 et seq. (1990). Specifically,
plaintiffs would not rent an apartment to Rushing because he and a
woman named Mary Tews (Tews) planned to live in the apartment
together, but were not married. The circuit court affirmed the
decision of the Commission. The plaintiffs now seek appellate review
pursuant to Supreme Court Rule 303(a)(1). 155 Ill. 2d R. 303(a)(1).
We affirm the decision of the circuit court.
BACKGROUND
Avana is a secular, for-profit, subchapter S corporation engaged
in the business of repairing and selling electric motors. Jasniowski
is Avana's president, sole officer, and sole shareholder.
Jasniowski's mother, Martha Jasniowski, owns a building comprised of
both commercial space and a residential apartment. Martha Jasniowski
leases the entire building to Avana. The lease between Avana and
Martha Jasniowski allows Avana to occupy the building and authorizes
Avana to sublease the apartment. The lease does not contain any
religious restrictions regarding sublessees.
In June 1992, Avana publicly advertised the apartment for rent in
Chicago, Illinois. Rushing and Tews submitted an application to lease
the apartment, indicating they were married. Jasniowski initially
decided to rent them the apartment. Rushing and Tews, however, were
unable to produce the requested proof of marriage and they decided to
pursue other housing. Although Jasniowski did not refuse to rent to
Rushing and Tews directly, he admits that he would not have leased the
apartment to them because they were not married. He maintains that
renting to an unmarried couple would conflict with his religious
beliefs against sexual relations outside of marriage. He further
contends that his religious beliefs render him a "steward" over his
property and, therefore, he must manage his property according to his
understanding of the Bible.
On July 23, 1992, Rushing filed a complaint with the City of
Chicago Commission on Human Relations, alleging that Jasniowski had
discriminated against him because of his marital status. At the pre-
hearing conference, the hearing officer properly allowed Rushing's
oral motion to add Avana as a respondent. After a full hearing on the
merits, the Commission found that Jasniowski held sincere religious
beliefs and that he refused to rent the apartment to Rushing and Tews
because they were not married but planned to live there together. The
Commission determined that Jasniowski's refusal to rent to Rushing
constituted discrimination on the basis of marital status in violation
of the Fair Housing Regulations of the City of Chicago. Chicago
Municipal Code §5-8-010 et seq. (1990). The Commission rejected
Jasniowski's claim that the ordinance burdens his free exercise of
religion. The Commission awarded Rushing damages and attorney fees
totaling approximately $14,000. The circuit court affirmed the
Commission's decision.
DISCUSSION
The first issue on appeal is whether the Chicago Fair Housing
Regulations, which prohibit housing discrimination on the basis of
marital status, prevent a person from refusing to rent an apartment to
an unmarried, cohabiting couple. Five state supreme courts have
addressed this question in one form or another. See Swanner v.
Anchorage Equal Rights Commission, 874 P.2d 274 (Alaska 1994), cert.
denied, ___ U.S. ___, 130 L. Ed. 2d 368, 115 S. Ct. 460 (1994); Smith
v. Fair Employment & Housing Commission, 913 P.2d 909 (Cal. 1996);
Attorney General v. Desilets, 636 N.E.2d 233 (Mass. 1994); State by
Cooper v. French, 460 N.W.2d 2 (Minn. 1990); County of Dane v. Norman,
497 N.W.2d 714 (Wis. 1993).
A threshold issue is how to define discrimination against an
unmarried, cohabiting couple. We agree that the discrimination at
issue is based on marital status, not the conduct of the prospective
tenants. Accord Swanner v. Anchorage Equal Rights Commission, 874 P.2d 274, 278 n.4 (Alaska 1994); Attorney General v. Desilets, 636 N.E.2d 233, 235 (Mass. 1994). Assuming both married and unmarried
couples engage in the same conduct, the only distinction is that one
couple has the status of "married" whereas the other couple is
"unmarried." Jasniowski's religious objection is that allowing a man
and woman to cohabit as an unmarried couple promotes fornication. We
accept the Commission's factual determinations that Jasniowski's
religious beliefs were sincerely held and that Rushing and Tews
constituted an unmarried, cohabiting couple.
Thus, the question is whether the Chicago Fair Housing
Regulations (Chicago ordinance or ordinance) prevent Jasniowski from
refusing to rent the apartment to an unmarried, cohabiting couple.
Section 5-8-030C of the ordinance provides that "[I]t shall be an
unfair housing practice and unlawful for any owner, lessee, sublessee,
*** [t]o refuse to sell, lease or rent, any real estate for
residential purposes within the city of Chicago because of *** marital
status *** of the proposed buyer or renter." Chicago Municipal Code
§5-8-030C (1990). Section 5-8-040 explains that "marital status" has
the same meaning as described in chapter 2-160 of the Chicago human
rights ordinance, which defines "[m]arital status" as "the legal
status of being single, married, divorced, separated or widowed."
Chicago Municipal Code §2-160-020(f) (1990).
The Commission determined that "marital status" in the ordinance
extends housing discrimination protection to unmarried cohabiting
couples and that Jasniowski's refusal to rent to Rushing constituted a
violation of the ordinance. Because the Commission is the agency
charged with enforcing the ordinance, its determination as to the
intent and scope of the ordinance is entitled to substantial
deference. Boaden v. Department of Law Enforcement, 171 Ill. 2d 230,
239, 664 N.E.2d 61, 65 (1996).
When an ordinance is clear, a court is bound by its plain
language and meaning. Solich v. George & Anna Portes Cancer
Prevention Center, 158 Ill. 2d 76, 81, 630 N.E.2d 820, 822 (1994).
Jasniowski argues that "marital status" protects individuals who are
married, single, separated, divorced, or widowed, but does not extend
protection to unmarried couples. Conversely, Rushing and the City of
Chicago argue that renting to a man and a woman who are married, while
refusing to rent to a man and a woman who are unmarried, by
definition, constitutes "marital status" discrimination. Because the
meaning of "marital status" is unclear, we look to other indicia of
legislative intent to determine the statutory meaning. From this
review, we have no doubt that the Chicago City Council intended to
protect unmarried cohabiting couples from housing discrimination
within the City of Chicago.
Remedial legislation generally is afforded a liberal
interpretation. Tandy Corp. v. Human Rights Commission, 264 Ill. App.
3d 828, 832, 637 N.E.2d 725, 728 (1994). Chicago passed its first
fair housing ordinance in 1963, to prohibit housing discrimination
based on race, color, religion, national origin, or ancestry. Chicago
Municipal Code ch. 198.7-B (eff. September 11, 1963). Illinois passed
the Illinois Human Rights Act to protect against unlawful
discrimination in employment, real property transactions, access to
financial credit, and public accommodations. Pub. Act 81-1216, eff.
July 1, 1980.
Over the years, both the Chicago ordinance and the Illinois Human
Rights Act have been broadened to protect a wide array of groups
subject to potential housing discrimination. The Chicago ordinance
assures "full and equal" housing opportunity to all residents of
Chicago and protects the following categories from discrimination:
"race, color, sex, age, religion, disability, national origin,
ancestry, sexual orientation, marital status, parental status,
military discharge status or source of income." (Emphasis added.)
Chicago Municipal Code §5-8-010 (1990).
The breadth of categories included in the ordinance indicates
that Chicago intended to provide universal protection from housing
discrimination to all its residents, in whatever combination.
Inclusion of sexual orientation as a protected category is
particularly enlightening. The inclusion of sexual orientation
implies that the City Council understood unmarried cohabitants to be
protected. Chicago Municipal Code ch. 198.7B (amended December 21,
1988, to include, inter alia, sexual orientation); County of Dane v.
Norman, 497 N.W.2d 714, 722 (Wis. 1993) (Heffernan, C.J., dissenting).
Thus, we agree with the Commission that under section 5-8-030 of the
Chicago ordinance, the City of Chicago extended housing discrimination
protection to unmarried, cohabiting couples.
The next consideration is whether Chicago had the authority to
enact such measures. We have no difficulty finding that Chicago had
the power to pass the ordinance under both its constitutional home-
rule authority and its statutory authority as granted by the Illinois
legislature. Under the Illinois Constitution, the City of Chicago is
a home-rule unit giving it the authority to "exercise any power and
perform any function pertaining to its government and affairs
including, but not limited to, the power to regulate for the
protection of the public health, safety, morals and welfare; to
license; to tax; and to incur debt." Ill. Const. 1970, art. VII,
§6(a). In addition, the Illinois Human Rights Act allows
municipalities to pass antidiscrimination measures broader than
Illinois law. Ill. Rev. Stat. 1991, ch. 68, par. 7-108(A). Thus, the
City of Chicago had the power to adopt an expansive housing ordinance.
The more complex question is whether Chicago's anti-
discrimination housing provision conflicts within any larger Illinois
precedent or public policy. Jasniowski argues that this court is
bound by Mister v. A.R.K. Partnership, 197 Ill. App. 3d 105, 553 N.E.2d 1152 (1990), which held that the prohibition against marital
status discrimination in the Illinois Human Rights Act did not apply
to a landlord's refusal to lease an apartment to unmarried individuals
of the opposite sex. After finding the meaning of "marital status"
discrimination in the Illinois Human Rights Act ambiguous, the court
determined that extending protection to unmarried couples would
conflict with the Illinois antifornication statute and the Illinois
Marriage and Dissolution of Marriage Act. Mister, 197 Ill. App. 3d at
118, 553 N.E.2d at 1160. Jasniowski argues that because the
definition of "marital status" in the Chicago ordinance contains the
same language as in the Illinois Human Rights Act, the Mister decision
controls.
First, we find that Mister is not controlling. Mister relied on
the Illinois antifornication statute to construe public policy. In
1990, however, the Illinois legislature decriminalized cohabitation.
Pub. Act 86-490, eff. January 1, 1990 (amending Ill. Rev. Stat. 1989,
ch. 38, par. 11-8). Thus, Mister is distinguishable based on its
reliance on the criminal nature of cohabitation. We also reject
Jasniowski's argument that the Chicago ordinance conflicts with
Chicago's fornication ordinance, which is aimed at prohibiting houses
of ill-fame or assignation. See Chicago Municipal Code §8-8-010
(1990).
More importantly, the Chicago ordinance does not conflict with
Illinois public policy. By express authority from the Illinois
legislature, the Chicago ordinance is legitimately broader than the
Illinois Human Rights Act, which does not include sexual orientation,
parental status, or source of income as protected categories. Ill.
Rev. Stat. 1991, ch. 68, pars. 1-103(Q), 7-108. We also note the
Illinois Domestic Violence Act protects persons abused by a family or
household member. 750 ILCS 60/201(a)(i) (West 1992).
Additionally, the Chicago ordinance does not conflict with prior
Illinois cases disapproving of cohabitation for the elevated purposes
of granting marital property rights and child custody. Our supreme
court has declined to apply marital property laws to cohabitants
(Hewitt v. Hewitt, 77 Ill. 2d 49, 394 N.E.2d 1204 (1979)), and has
modified child custody based on a parent's open and continuing
cohabitation. Jarrett v. Jarrett, 78 Ill. 2d 337, 345, 400 N.E.2d 421, 423-24 (1979). These cases, however, do not defeat the basic aim
of the Chicago ordinance. The State may legitimately promote marriage
when the issue concerns the existence of legal rights specifically
emanating from the institution of marriage. In contrast, the aim of
the Chicago ordinance is fairness--to promote "full and equal" housing
opportunity to all Chicago residents. Accordingly, the scope of the
Chicago housing ordinance does not interfere with the scope of
Illinois marital rights.
Likewise, the Illinois Supreme Court's recent decision narrowly
interpreting "marital status" in the Illinois Human Rights Act does
not compel a different result. Boaden v. Department of Law
Enforcement, 171 Ill. 2d 230, 664 N.E.2d 61 (1996), concerned whether
the Illinois Human Rights Act prohibition against marital status
discrimination prohibits no-spouse policies in the workplace. The
supreme court upheld no-spouse policies construing "marital status" as
defined in the Illinois Human Rights Act to refer only to the status
of an individual. Boaden, 171 Ill. 2d at 238, 664 N.E.2d at 65.
We do not find any inconsistency between our opinion today and
the employment-based holding in Boaden. The Chicago ordinance is a
remedial provision, designed to assure housing access to all residents
of Chicago. The Chicago ordinance is written more broadly than the
Illinois Human Rights Act. Moreover, the Illinois Constitution also
supports the importance of basic housing availability. Ill. Const.
1970, art. I, §§17-19. In short, the City of Chicago had the
authority and intended to adopt measures to protect all residents of
Chicago from housing discrimination. This legislation does not
conflict with Illinois public policy and is not defeated by any
variant interpretation of the same terms in the Illinois Human Rights
Act.
Given that the Chicago ordinance prohibits housing discrimination
against unmarried, cohabiting couples, the next question is whether
Jasniowski may challenge its enforcement as a burden upon his free
exercise of religion. In 1990, the United States Supreme Court
retooled the test for determining whether a particular law
unconstitutionally burdens a person's free exercise of religion.
Employment Division, Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872, 108 L. Ed. 2d 876, 110 S. Ct. 1595 (1990). Under the Smith
rationale, "a law that is neutral and of general applicability need
not be justified by a compelling governmental interest even if the law
has the incidental effect of burdening a particular religious
practice." Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,
508 U.S. 520, 531, 124 L. Ed. 2d 472, 489, 113 S. Ct. 2217, 2226
(1993).
We need not reach the constitutional issue, however, because
Congress enacted the Religious Freedom Restoration Act of 1993 to
restore the pre-Smith constitutional standard for religious freedom.
42 U.S.C. §2000bb (1993) (Restoration Act). The Restoration Act
applies to all Federal and State law (including subdivisions of a
State) "whether adopted before or after November 16, 1993." 42 U.S.C.
§§2000bb-2(1), 2000bb-3(a) (1993). Because a congressional act is
presumed constitutional until otherwise determined, we apply the
analysis set forth in the Act. Zobrest v. Catalina Foothills School
Dist., 509 U.S. 1, 7, 125 L. Ed. 2d 1, 9, 113 S. Ct. 2462, 2465-66
(1993). We note that the United States Supreme Court has granted
certiorari to address the validity of the Restoration Act. Flores v.
City of Boerne, 73 F.3d 1352 (5th Cir. 1996), cert. granted, ___ U.S.
___, 136 L. Ed. 2d 212, 117 S. Ct. 293 (1996). Until the Court
resolves that issue, if the Restoration Act requires reversal of the
Commission's decision, the result is based on the Supremacy Clause of
the United States Constitution. U.S. Const., art. VI, cl. 2.
The Religious Freedom Restoration Act codifies the pre-Smith
Supreme Court compelling interest test: "Government shall not
substantially burden a person's exercise of religion even if the
burden results from a rule of general applicability," unless the
government "demonstrates that application of the burden to the person
- (1) is in furtherance of a compelling governmental interest; and (2)
is the least restrictive means of furthering that compelling
governmental interest." 42 U.S.C. §2000bb-1(a), (b) (1993). Section
1(c) provides for judicial relief and explains that standing to assert
a claim or defense under the Restoration Act is governed by the
general rules of standing under article III of the United States
Constitution. 42 U.S.C. §2000bb-1(c) (1993).
We first address Jasniowski's standing to assert a constitutional
free exercise of religion defense. Martha Jasniowski owns the
property. Avana, the corporation, leases the building and has
authority to sublet the apartment. Jasniowski is Avana's president,
sole officer, and sole shareholder. Avana and Jasniowski are
interchangeable. The nexus between the sole proprietor and his
business is sufficiently compelling such that Avana can raise a free
exercise challenge asserting the free exercise rights of its sole
corporate officer and shareholder, Jasniowski. See E.E.O.C. v.
Townley Engineering & Manufacturing Co., 859 F.2d 610, 611-12 (9th
Cir. 1988). We concur in the logic of the Commission when it stated:
"To deprive Jasniowski of his ability to raise a
religious objection to the Ordinance because he
chose to incorporate his sole proprietorship is to
make the assertion of a constitutional right turn
upon a business choice which was undoubtedly made
in ignorance of the fact that a First Amendment
right was thereby being waived." Rushing v.
Jasniowski, Chicago Commission on Human Relations
Report No. 92-H-127 (May 18, 1994).
In this limited context, and based on the facts before us, we find
that Avana may assert the religious beliefs of its alter ego,
Jasniowski.
Moreover, we do not draw a distinction between a property owner
versus a sublessor for purposes of the free-exercise analysis in this
particular case. As lessee, Avana retains exclusive possession of the
building. Under the lease, Avana is allowed to sublease the
residential apartment. If the owner wanted to lease the property and
assert a free-exercise defense, she would be entitled to do so. Avana
is not raising any rights greater than those of the original owner.
Thus, Jasniowski's free-exercise challenge is not defeated by the
corporate entity or its legal relation as a sublessor in this
circumstance.
We now consider whether the Chicago ordinance places a
substantial burden on Jasniowski's free exercise of religion. The
Restoration Act does not define substantial burden. In fact, whether
a "substantial burden" may be quantified is at the heart of the
current constitutional religious debate. Nevertheless, based on
Wisconsin v. Yoder, Sherbert v. Verner, and their progeny, the
hallmark of a substantial burden on one's free exercise of religion is
the coercive choice of either abandoning one's religious convictions
or complying with the governmental regulation. Wisconsin v. Yoder,
406 U.S. 205, 217-18, 32 L. Ed. 2d 15, 26, 92 S. Ct. 1526, 1534
(1972); Sherbert v. Verner, 374 U.S. 398, 404, 10 L. Ed. 2d 965, 970,
83 S. Ct. 1790, 1794 (1963); see also Thomas v. Review Bd. of Indiana
Employment Security Division, 450 U.S. 707, 717-18, 67 L. Ed. 2d 624,
633-34, 101 S. Ct. 1425, 1432 (1981). Under this standard,
enforcement of the Chicago ordinance against Jasniowski imposes a
substantial burden on the free exercise of his religion. Through
Avana, Jasniowski sublets the residential apartment. Jasniowski
believes renting the apartment to an unmarried, cohabiting couple
violates his religious beliefs. The Chicago ordinance requires him to
do so, thereby subjecting him to penalties and costs for
noncompliance. Jasniowski is thus forced to choose between his
religious convictions and compliance with the Chicago housing
ordinance.
We emphasize that the substantial burden is defined by
Jasniowski's "either-or" choice to comply with the ordinance or adhere
to his religious convictions, not merely by its economic impact.
Thus, the burden is not measured in terms of the costs imposed for
violating the ordinance. Nor is the burden defensible by the
suggestion that Jasniowski simply may surrender his right to lease,
rent, and derive income from the property in order not to violate his
religious beliefs. We likewise reject the argument that Jasniowski's
consistent religious ethic is subject to blanket submission upon his
entry into the marketplace. Attempting to earn a living does not
require an individual to sacrifice all religious precepts. United
States v. Lee, 455 U.S. 252, 261, 71 L. Ed. 2d 127, 134-35, 102 S. Ct. 1051, 1057 (1982) (holding that the government had a compelling
interest in maintaining the tax system, not that the employer had
abdicated his religious beliefs upon entry into the marketplace).
Equally unavailing is any notion that the burden is de minimis.
As noted by Justice Douglas in his concurrence in Sherbert: "The
result turns not on the degree of injury, which may indeed be
nonexistent by ordinary standards. The harm is the interference with
the individual's scruples or conscience--an important area of privacy
which the First Amendment fences off from government." Sherbert v.
Verner, 374 U.S. at 412, 10 L. Ed. 2d at 975, 83 S. Ct. at 1798
(Douglas, J., concurring). Free exercise of Jasniowski's religious
beliefs conflicts with Chicago's mandate that he rent the apartment
indiscriminately. We find that the Chicago housing ordinance's
prohibition against marital status discrimination substantially
burdens the free exercise of Jasniowski's sincere religious beliefs.
Thus, it becomes incumbent upon the City of Chicago to
demonstrate that enforcing the ordinance against Jasniowski furthers a
compelling interest and is the least restrictive means of furthering
that compelling interest. 42 U.S.C. §2000bb-1(b)(2) (1993). The
Commission did not reach the compelling interest issue. The circuit
court, however, found that even assuming Jasniowski was substantially
burdened, the government had a compelling interest.
The City of Chicago has an interest in prohibiting housing
discrimination generally. For free exercise analysis, however, the
courts consistently explain that the state's interest must be narrowly
defined. Thomas, 450 U.S. at 719, 67 L. Ed. 2d at 634, 101 S. Ct. at
1432; Yoder, 406 U.S. at 228-29, 32 L. Ed. 2d at 32, 92 S. Ct. at
1540. Thus, the narrower question is whether specifically prohibiting
housing discrimination against unmarried cohabiting couples is a
compelling governmental interest. See Attorney General v. Desilets,
636 N.E.2d 233, 238 (Mass. 1994).
Again, the Restoration Act does not define a compelling
governmental interest. Since Yoder and Sherbert, the Court has found
a compelling interest in maintaining the tax system (Hernandez v.
Commissioner of Internal Revenue, 490 U.S. 680, 699-70, 104 L. Ed. 2d 766, 787, 109 S. Ct. 2136, 2149 (1989)); maintaining the Social
Security system (United States v. Lee, 455 U.S. 252, 71 L. Ed. 2d 127,
102 S. Ct. 1051 (1982)); upholding military conscription laws
(Gillette v. United States, 401 U.S. 437, 461-62, 28 L. Ed. 2d 168,
187, 91 S. Ct. 828, 842-43, 848 (1971; and providing a uniform day of
rest (Braunfeld v. Brown, 366 U.S. 599, 608-09, 6 L. Ed. 2d 563, 569-
70, 81 S. Ct. 1144, 1148-49 (1961)). See Employment Division, Dept.
of Human Resources of Oregon v. Smith, 494 U.S. 872, 896, 108 L. Ed. 2d 876, 897, 110 S. Ct. 1595, 1609 (1990) (O'Connor, J. concurring).
In contrast, the Court has declined to find a compelling interest in
only limited contexts: the school attendance of Amish children to age
16 (Yoder, 406 U.S. at 228-29, 32 L. Ed. 2d at 32, 92 S. Ct. at 1540);
and prevention of fraudulent unemployment benefit claims (see Hobbie
v. Unemployment Appeals Commission of Florida, 480 U.S. 136, 94 L. Ed. 2d 190, 107 S. Ct. 1046 (1987); Thomas, 450 U.S. 707, 67 L. Ed. 2d 624, 101 S. Ct. 1425 (1981); Sherbert, 374 U.S. 398, 10 L. Ed. 2d 965,
83 S. Ct. 1790 (1963)).
Under Illinois law, determining whether Chicago has a compelling
interest is analogous to the balancing required in church zoning
cases. Enacted pursuant to the police power of the State, zoning laws
effect a legitimate restraint on a person's use of his property if
they substantially promote public health, safety, morals, or the
general welfare. Columbus Park Congregation of Jehovah's Witnesses,
Inc. v. Board of Appeals of City of Chicago, 25 Ill. 2d 65, 70-71, 182 N.E.2d 722, 725 (1962). And while the location of churches implicates
freedom of religion and free exercise, government can regulate their
location if it demonstrates a substantial interest in a particular
case. Columbus Park, 25 Ill. 2d at 71, 182 N.E.2d at 725. Implicit
in the government's police power to promote the general health,
safety, and welfare of the community is a recognition of the rights of
all members of society.
Likewise, in this case, the City of Chicago's concern in
prohibiting housing discrimination against unmarried, cohabiting
couples promotes the universal interest of Chicago residents in
available housing. The policy statement of the Chicago ordinance
secures "full and equal opportunity to all residents of the city to
obtain fair and adequate housing for themselves and their families in
the city of Chicago without discrimination." Discrimination is then
broadly defined to protect all of the following categories: "race,
color, sex, age, religion, disability, national origin, ancestry,
sexual orientation, marital status, parental status, military
discharge status or source of income." Chicago Municipal Code §5-8-
010 (1990).
Moreover, what distinguishes this situation from other free
exercise cases is the direct impact of Jasniowski's religious
objection on the interests of third parties. See generally Michael W.
McConnell, The Origins and Historical Understanding of Free Exercise
of Religion, 103 Harv. L. Rev. 1409, 1464 (1990); Michael W.
McConnell, Free Exercise Revisionism and the Smith Decision, 57 U.
Chi. L. Rev. 1109, 1145-46 (1990). Specifically at issue is the
effect of Jasniowski's free exercise on Benson Rushing's "full and
equal" opportunity for housing in the City of Chicago.
Adding the interests of the prospective tenant Rushing changes
the equation. The balance thus becomes Jasniowski's free exercise as
weighed against the City of Chicago's general interest in preventing
housing discrimination and Rushing's individual interest in access to
housing. While the weight of the interests is admittedly close, the
impact of Jasniowski's religious objection on third parties tips the
balance in favor of the government. Thus, we find that the City of
Chicago has a compelling interest in prohibiting housing
discrimination against unmarried, cohabiting couples. Chicago's
interest in prohibiting this specific housing discrimination is
integral to its overall interest in prohibiting all housing
discrimination. Accordingly, universal enforcement, including
enforcement against Jasniowski, is the least restrictive means
available. 42 U.S.C. §2000bb(b)(2) (1993). Accord Lee, 455 U.S. at
260, 71 L. Ed. 2d at 134, 102 S. Ct. at 1056-57.
Because our decision is based on application of the Religious
Freedom Restoration Act, we decline to address whether the Chicago
ordinance violates the Illinois Constitution. People v. McDaniel, 164 Ill. 2d 173, 180, 647 N.E.2d 266, 269 (1995). The Illinois Supreme
Court has held that like provisions in the Illinois and federal
constitutions are to be similarly construed unless the drafters
indicated a contrary intent. People v. Tisler, 103 Ill. 2d 226, 243,
469 N.E.2d 147, 156 (1984). Because the Illinois Supreme Court,
however, has not considered the scope of the Illinois Constitution in
light of the United States Supreme Court's decision in Smith, we
decline to consider the constitutionality of the Chicago ordinance
under the Illinois Constitution.
In conclusion, the City of Chicago intended to enact a broad
housing discrimination ordinance that would include in its protection
unmarried, cohabiting couples. Under the Religious Freedom
Restoration Act, Jasniowski has demonstrated that enforcement of the
Chicago ordinance against him imposes a substantial burden on his free
exercise of religion. We conclude, however, that the City's
compelling interest in eliminating all forms of housing
discrimination, including that against unmarried, cohabiting couples,
defeats Jasniowski's claim to a free exercise exemption. Thus, the
Commission properly enforced the ordinance against Jasniowski and was
authorized to award damages, emotional distress, and attorney fees to
Rushing. Atkins v. Chicago Commission on Human Relations ex rel.
Lawrence, 281 Ill. App. 3d 1066, 1076-77, 667 N.E.2d 664, 670-71
(1996). Accordingly, we affirm the decisions of the circuit court and
the City of Chicago Commission on Human Relations.
Affirmed.
CAHILL, J., concurs.
O'BRIEN, J., dissents.
JUSTICE O'BRIEN, dissenting:
There are three specific areas in which I part company with
the majority: (1) whether an actual controversy exists between the
parties, (2) whether unmarried, cohabiting heterosexual couples are
included in the definition of "marital status" in the ordinance,
and (3) whether the City has a compelling governmental interest
which overrides the burden on Jasniowski's exercise of his
religion.
First, there is no actual controversy between the parties as
this is a premature claim. An actual controversy exists when the
underlying facts and issues of the case are not moot or premature,
so as to require the court to pass judgment on mere abstract
propositions of law, render an advisory opinion, or give legal
advice as to future events. Underground Contractors Ass'n v. City
of Chicago, 66 Ill. 2d 371, 375, 362 N.E.2d 298, 300 (1977). An
action is premature when a party's rights are dependent upon the
outcome of future events. See generally Howlett v. Scott, 69 Ill. 2d 135, 370 N.E.2d 1036 (1977).
Here, several salient facts overlooked by the majority
establish that Rushing's claim is premature. The application for
a lease, completed and signed by Rushing, lists Mary Tews as Mary
Rushing, and one of the identification cards for Benson Rushing
lists him as Anthony Rushing. At the hearing before the Board,
both Rushing and Jasniowski testified that after Jasniowski asked
for and received identification cards to confirm their identities,
Jasniowski questioned the difference between Tews' name on the
lease and her name on the identification card.
Jasniowski further testified that he was concerned about their
identities, that Rushing said they were married, but was only able
to give an approximate marriage date as he was purportedly drunk
when he married. Jasniowski then testified that he asked Rushing
if Rushing and Tews had a marriage certificate, that Rushing
responded yes and stated that he would call Jasniowski.
Rushing testified that he telephoned Jasniowski the next day.
When asked if he could relay the parties' conversation, Rushing
stated:
A: I said: I don't have a marriage certificate, I can't
produce one, we're not married. Will you still rent me the
apartment.
Q: What did he say or what did you say to him?
A: I said: I will be by tomorrow to pick up the documents
that you made copies of.
Q: Was anything else stated?
A: At that point, I can't recall.
By Rushing's own testimony, Rushing withdrew from negotiations
for the apartment and Jasniowski did not deny Rushing the apartment
after learning Rushing and Tews were not married. Rushing's
withdrawal of his application was corroborated by Jasniowski who
testified that "* * * Rushing called up and stated that he cannot
find a marriage certificate and that he was going to be coming back
to pick up his paperwork * * * ."
Moreover, throughout the hearing, Jasniowski was repeatedly
asked whether he "would have" denied the apartment to Rushing and
Tews and under what circumstances. That language indicates that
the completion of a future event was necessary to determine the
rights of the parties; a fact which renders Rushing's claim of
discrimination premature. Accordingly, there is no actual
controversy between the parties.
Second, the ordinance term "marital status" does not include
unmarried, cohabiting heterosexual couples. The term "marital
status" is ambiguous because it is susceptible to more than one
meaning. In the interpretation of ambiguous statutes, a court of
review is required to ascertain and effectuate the legislative
intent. Mister v. A.R.K. Partnership, 197 Ill. App. 3d 105, 113,
553 N.E.2d 1152, 1156 (1990). Because there is no record of the
City Council debate or comment concerning "marital status," other
indications of legislative intent are necessary.
In 1973, the ordinance at issue was amended to add, inter
alia, "marital status." Council Journal for Chicago City Council,
June 6, 1973, at 5704. At that time, the Criminal Code of 1961, as
amended, prohibited fornication and cohabitation. The relevant
statute provided:
"(a) Any person who cohabits or has sexual intercourse
with another not his spouse commits fornication if the
behavior is open and notorious.
(b) Penalty. A person convicted of fornication shall be
fined not to exceed $200 or imprisoned in a penal institution
other than the penitentiary not to exceed six months, or
both." Ill. Rev. Stat. 1971, ch. 38, par. 11-8.
Surely the City Council could not have intended to protect
behavior or people engaging in behavior which was criminal in
nature, specifically proscribed by the General Assembly and thus,
in contravention of the public policy of the State.
In contrast, the statute contained in the Criminal Code of
1961, as amended, prohibiting sodomy (Ill. Rev. Stat. 1961, ch. 10,
par. 141) was repealed in 1962 (Ill. Rev. Stat. 1961, ch. 38, par.
35-1 (eff. Jan. 1, 1962)), and the statute prohibiting deviate
sexual conduct (Ill. Rev. Stat. 1961, ch. 38, par. 11-2) was
repealed in 1984 (Pub. Act 83--2067, §28, eff. July 1, 1984), well
before the City Council added "sexual orientation" to the ordinance
in 1988. Surely, the same legislative body which repealed the
sodomy and deviate sexual conduct statutes could have repealed the
fornication statute if it so desired. The fact that it did not do
so is indicative of the General Assembly's intent. Accordingly, I
disagree with the majority's assertion that the "breadth of
categories included in the ordinance" and in particular the 1988
addition of "sexual orientation" thereto implies the City Council
intended to protect unmarried, cohabiting heterosexual couples.
Rather, because of the public policy proscription against
cohabitation and fornication in force at the time of the addition
of "marital status" to the ordinance, the City Council did not
intend to include nor does the ordinance include unmarried
cohabiting heterosexual couples under the term "marital status."
Nor does the 1990 amendment to the fornication statute,
removing cohabitation, change the public policy of the State so as
to render the ordinance in compliance with public policy. The
House of Representatives debate addressing the 1990 amendment
indicates the "cohabits or" language was removed for the benefit of
senior citizens and college students who might need to share
housing free from the fear of prosecution under the statute. 86th
Ill. Gen. Assem., House Proceedings, May 9, 1989, at 43-44
(statements of Representative Klemm). Additionally, a review of
other statutes reveals that the public policy of Illinois still
regards fornication as proscribed behavior. The Slander and Libel
Act provides:
"If any person shall falsely use, utter or publish
words, which * * * amount to charge any person with
having been guilty of fornication or adultery, such words
so spoken shall be deemed actionable, and he shall be
deemed guilty of slander." 740 ILCS 145/1 (West 1994).
The Adoption Act, in specifying grounds for finding a person unfit
to adopt, provides:
"`Unfit person' means any person whom the court shall
find to be unfit to have a child, without regard to the
likelihood that the child will be placed for adoption, the
grounds of such unfitness being any one or more of the
following:
* * * *
(j) open and notorious adultery or fornication." 750
ILCS 50/1 C (j) (West 1994).
In sum, fornication remains punishable by up to six months in
the county jail (720 ILCS 5/11-8 (West 1994)), and is otherwise
disfavored. And although Rushing and the Commission assert that
the fornication statute is little prosecuted and should be
discounted by this court, the concept of "implied repeal" is
unprecedented. It is not the role of the judiciary to question the
societal relevance of particular statutes, comment upon their
propriety, or declare them of little use. Our role here is to
ascertain the intent of the City Council and whether it is in
concert with the public policy of the state as rightfully
determined by our legislature. Because the statute proscribing
fornication reflects Illinois' continuing public policy against
fornication, it follows that unmarried, cohabiting heterosexual
couples are not included in the protection afforded by the
ordinance.
Finally, and most troubling, are the findings of the majority
that the City has a compelling governmental interest which
overrides the burden--found to be substantial by the majority--on
Jasniowski's exercise of religion and is using the least
restrictive means of enforcement.
First, a review of the standard.
The majority concedes that the proper analysis is established
in the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et
seq. (1993). The Restoration Act provides, in part:
§ 2000bb-1. Free exercise of religion protected.
(a) In general. Government shall not substantially
burden a person's exercise of religion even if the burden
results from a rule of general applicability, except as
provided in subsection (b).
(b) Exception. Government may substantially burden a
person's exercise of religion only if it demonstrates
that application of the burden to the person--
(1) is in furtherance of a compelling governmental
interest; and
(2) is the least restrictive means of furthering
that compelling governmental interest. (Emphasis
added.) 42 U.S.C. § 2000bb-1(a), (b) (1993).
§ 2000bb-3. Applicability
(a) In general. This Act applies to all Federal and
State law, and the implementation of that law, whether
statutory or otherwise, and whether adopted before or
after the enactment of this Act." 42 U.S.C. § 2000bb-3
(1993).
Accordingly, the City must establish the existence of a
compelling governmental interest in prohibiting housing
discrimination against unmarried, cohabiting heterosexual couples,
and that it has used the least restrictive means to achieve that
end. This test requires more than the establishment of a general
interest in eradicating housing discrimination in order to justify
the burden placed upon Jasniowski's free exercise of his religion.
See generally Wisconsin v. Yoder, 406 U.S. 205, 224-229, 92 S. Ct. 1526, 1537-1540, 32 L. Ed. 2d 15 (1972); Thomas v. Review Board of
Indiana Employment Sec.Div., 450 U.S. 707, 719, 101 S. Ct. 1425,
1432, 67 L. Ed. 2d 624 (1981); and Sherbert v. Verner, 374 U.S. 398,
407, 83 S. Ct. 1790, 10 L. Ed. 2d 965 (1963).
Second, a review of the record.
On July 15, 1993, testimony in this case was taken. It
contained the testimony of (1) Benson Rushing as to his
conversations and dealings with Jasniowski and Marissa Legittino,
an employee of Avana; (2) Mary Tews as to her conversations and
dealings with Jasniowski and Legittino; (3) Ron Jasniowski as to
his conversations with Rushing and Tews, his religious beliefs, and
Avana; (4) Carmen Felix, one of Jasniowski's tenants, as to her
dealings with Jasniowski; (5) Legittino, as to her dealings with
Rushing, Tews, and Jasniowski; (6) Rick Donald, Jasniowski's
pastor, as to Jasniowski's religious beliefs.
Exhibits in evidence were the following:
Rushing's exhibits
A) application for lease
B) proposed lease
Jasniowski's exhibits
1) articles of incorporation for Avana Electric Motors, Inc.
2) goals of the corporation
3) acknowledgment of state of articles of incorporation
4) 1992 annual report for Avana Electric Motors, Inc.
5) 1993 annual report for Avana Electric Motors, Inc.
6) stock certificate for stock in Avana
7) letter from IRS regarding Avana as a subchapter s
corporation
8) actions of sole shareholder of Avana
9) lease between Jasniowski and mother for building
10) bylaws of Avana
11) handwritten note by Jasniowski
12) copies of identification cards of Tews and Rushing
The record also contains the objections and responses to a
proposed order filed by the parties' respective counsel including
their commentary on The Restoration Act. However, neither counsel
for Rushing nor the Commission requested leave to supplement the
record, take additional testimony, reopen the proof or submit
additional information as to the City's burden to establish its
compelling governmental interest in its ordinance and its least
restrictive means to achieve that end.
The record is silent as to the City's interest, if any, in the
purpose of its ordinance. There is no testimony, no exhibit, no
comment by counsel, nothing which supports any compelling
governmental interest. There is no evidence of the number of
people effected, the number of rental units not available because
of the religious beliefs of the owners, the types of housing
available as an alternative, or the length of time it takes to find
appropriate housing. Not surprisingly, there is no evidence
regarding the least restrictive means of enforcement.
Nevertheless, the Commission's position, as urged by counsel for
the Commission in its brief on appeal, is that the policy preamble
to the ordinance alone establishes compelling governmental
interest. The commission's counsel explains:
"[I]n this instance, the City has a compelling
interest in prohibiting discrimination based on marital
status.
The City has identified its interest in prohibiting
housing discrimination because of marital status in
section 5-8-010 of the Fair Housing Ordinance:
`It is hereby declared the policy of the city
of Chicago to assure full and equal opportunity to
all residents of the city to obtain fair and
adequate housing for themselves and their families
in the city of Chicago without discrimination
against them because of their race, color, sex,
age, religion, disability, national origin,
ancestry, sexual orientation, marital status,
parental status, military discharge status or
source of income.' [Chicago Municipal Code §5--8--
010 (amended December 21, 1988).]
The policy prohibiting discrimination based on
marital status is reflected as well in other ordinances
and in provisions of the City's various agreements with
its employees, thus demonstrating the consistency and
strength of the City's policy * * *"
The trial court likewise concludes in a footnote that:
"[a]lthough Respondents do not think that a
prohibition against discriminating against unmarried
cohabitation may advance the welfare of the citizens of
the State or the City, we have no difficulty in
concluding that it would, and defer to the judgment of
the City Council in that regard in any event."
The Commission and the trial court take a unique approach to lack
of proof: "If the government says it, it must be so."
And here, the majority finds that the policy preamble plus
Rushing's testimony as to his individual experience establishes
compelling governmental interest. The majority reasons that
"* * * in this case, the City of Chicago's concern
in prohibiting housing discrimination against unmarried,
cohabiting couples promotes the universal interest of
Chicago residents in available housing. The policy
statement of the Chicago ordinance secures "full and
equal opportunity to all residents of the city to obtain
fair and adequate housing for themselves and their
families in the city of Chicago without discrimination *
* *
Adding the interest of the prospective tenant
Rushing changes the equation. The balance thus becomes
Jasniowski's free exercise as weighed against the City of
Chicago's general interest in preventing housing
discrimination and Rushing's individual interest in
access to housing * * *"
The majority's only reference to the least restrictive means:
"Chicago's interest in prohibiting this specific
housing discrimination is integral to its overall
interest in prohibiting all housing discrimination.
Accordingly, universal enforcement, including enforcement
against Jasniowski, is the least restrictive means
available * * *"
The majority's approach to proof is thus little better than that
applied by the Commission and the trial court, in essence: "If
government says it, and finds one example, it must be so."
Compelling governmental interest has never been established
using these novel standards nor should it be. Let us not forget
why governmental interest must be compelling and subject to proof:
Here, government wishes to restrict an individual's right to
practice his religion. With no supporting facts in the record and
no legislative findings, I am unwilling to conclude that the mere
existence of this ordinance establishes a compelling governmental
interest that overrides the burden on Jasniowski's exercise of
religion and is the least restrictive enforcement.
Accordingly, I respectfully dissent.
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