Housing discrimination case to be heard by North Dakota Supreme Court


For Further Information: Amy Schauer Nelson

BISMARCK, ND, November 13, 2000 -- The North Dakota Fair Housing Council  (NDFHC) and a Fargo couple are appealing a state court ruling which decided that housing discrimination against unmarried couples was not illegal under the North Dakota Human Rights Act. The oral arguments regarding this case are scheduled to be heard on November 17 at 3 pm before the North Dakota Supreme Court.

In 1999, the NDFHC and an unmarried couple filed a complaint against a Fargo landlord alleging discrimination based upon marital status. The North Dakota Century Code on Human Rights forbids discrimination based on race, color, gender, religion, national origin, disability, age, status with respect to marriage and receipt of public assistance. This Century Code is commonly referred to as the North Dakota Human Rights Act (NDHRA) and was passed in 1983. State law passed in 1999 on housing discrimination established similar provisions.

The District Court granted summary judgment against the plaintiffs on the grounds that a refusal to rent to an unmarried couple is not discrimination based on status with respect to marriage within the meaning of the North Dakota Human Rights Act. The District Court concluded that a refusal to rent to an unmarried couple does not implicate their status with respect to marriage, but affects only the "conduct" of the unmarried couple in choosing to live together. Furthermore, the District Court held that, even if refusing to rent to an unmarried couple was "because of status with respect to marriage," North Dakota's unlawful cohabitation statute (N.D.C.C. § 12.1-20-10) would conflict with protection for unmarried couples from housing discrimination. The Court concluded that the NDHRA did not protect unmarried couples from housing discrimination based upon this apparent conflict. The plaintiffs are appealing this decision.

The plaintiffs allege that when a man and a woman who are unmarried and want to live together are denied housing because they are unmarried, such a denial is discrimination because of "status with respect to marriage." The only aspect of their status which causes the denial is their lack of marriage. A married couple who wants to live together would not be subject to the same denial of housing. The only difference between these two renter households is their status with respect to marriage, not their conduct of choosing to live together or the presumption of their sexual relationship.

Second, the existence of North Dakota's unlawful cohabitation statute does not require that "status with respect to marriage" be construed to exclude unmarried couples. The cohabitation statute is properly construed to proscribe only fraudulent cohabitation ¡ holding oneself out as married when in fact one is not married ¡ and does not proscribe cohabitation per se. This conclusion is supported by the plain language of the cohabitation statue, its legislative history, the obligation to construe criminal statutes narrowly in favor of criminal defendants and the obligation to construe statutes so as to preserve their constitutionality. The common threads and analyses of the applicable decisions from supreme courts of other states support this conclusion.

The North Dakota Fair Housing Council is a North Dakota non-profit organization located in Bismarck. The NDFHC's mission is to provide support, encouragement, and assistance to those seeking equal access to housing in the state of North Dakota. The NDFHC also investigates complaints of housing discrimination.

The NDFHC and the individual plaintiffs are represented in the lawsuit by Ed Dyer, a Bismarck lawyer, and by Christopher Brancart, a lawyer from Pescadero, California who specializes in fair housing litigation.

For those requiring additional information, a copy of the plaintiff's brief to the North Dakota Supreme Court which provides additional background will be made available upon request.