Sunday, July 25, 2010




Racial and religious discrimination in housing has been illegal in California since the early 1960s, when the Rumford Fair Housing Act passed. Subsequent laws banned discrimination in sales, rentals and employment on grounds of gender, national origin, sexual orientation and marital status.

But those laws just might not last much longer if Supreme Court nominee Elana Kagan is confirmed sometime in the next month or so, as widely expected.

Even though the state’s anti-discrimination laws are stronger than anything the federal government ever enacted, they’ve consistently been upheld by courts at every level. On the Supreme Court, former University of the Pacific law Prof. and Stanford Law School graduate Anthony Kennedy, the single justice with the strongest California background and lately the court’s swing vote, has consistently backed those laws.

But all that might not matter once Kagan reaches the court. At least that’s the implication of a memo she wrote 14 years ago, while a staff lawyer in the Bill Clinton White House.

Kagan wrote in response to a California state Supreme Court decision that amounted to a rebuke for then state Attorney General Dan Lungren, later the unsuccessful Republican nominee for governor in 1998 and now a GOP congressman from the Sierra Nevada foothills east of Sacramento.

In that decision, the state’s highest court found it was against the law for a Chico landlady to refuse in 1987 to rent an apartment to an unmarried couple living together on grounds that her religion forbade her to assist such a living arrangement because it considered sex outside marriage a sin.

Even though California law specifically banned housing discrimination on grounds of marital status, Lungren refused to assist any legal action by the would-be renters, forcing them to use private attorneys.

They eventually prevailed in the state Supreme Court, even though the ruling came years after they had any use for the apartment. Kagan recommended that Clinton’s Justice Department support the landlady’s appeal to the U.S. Supreme Court.

Kagan’s memo, among many documents handed to the Senate Judiciary Committee before its hearings on her nomination, said the state court’s decision could undermine the 1993 Religious Freedom Restoration Act, a now-defunct federal law forbidding states from imposing severe burdens on private religious practices. The U.S. Supreme Court struck that law down in 1997, ruling it interfered too much with state authority. But that didn’t change the strong language in Kagan’s memo.

The state court decision essentially said that because the landlady made her apartment available to the general public, she was like any other business owner and could not discriminate against anyone who sought to rent from her, as long as the applicant was financially able to pay the rent and any required deposits.

Kagan disagreed. The logic of her memo, which called the state court ruling “quite outrageous,” could easily be extended to matters of race, religion and all the other categories covered by California’s anti-discrimination laws.

What if the claim is made that a landlord’s religion proscribes persons of different races living in the same building or neighborhood? What if an apartment owner says his faith frowns on gays or women living alone?

By the reasoning in the Kagan memo, that belief should trump state laws holding that such discrimination is against the overall public interest. No senator asked her about that memo in the Judiciary Committee hearings, and there’s a good chance Kagan would not make a similar argument today. But maybe she hasn't changed her mind.

Then,all it would take to overturn California’s laws on fair housing and fair employment would be for Kagan to desert the Supreme Court’s liberal bloc, which she is commonly expected to join, and link with conservative justices Antonin Scalia, Samuel Alito, Clarence Thomas and John Roberts, who are consistently been leery of sweeping anti-discrimination measures.

If thathappened, California and other states could revert to the days of real estate covenants restricting property sales to members of certain racial and religious groups, the era when landlords commonly rejected African-Americans, Latinos or Jews even when they were more financially qualified than other prospective tenants.

Kagan hasn’t addressed this subject in more than a decade, but the existence of her Clinton-era memo is evidence of how unpredictable the performance of Supreme Court justices can be and the vital importance of their votes.

Email Thomas Elias at His book, "The Burzynski Breakthrough," is now available in a soft cover fourth edition. For more Elias columns, visit

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