A federal judge on Wednesday chose to interpret the absolute letter of the law in her reading of the Fair Housing Act and its application to the denial of housing based on sexual orientation. The interpretation might have been legally accurate and in keeping with the judicial discipline of not legislating from the bench. But the plaintiffs must not allow it to stand unchallenged.
Two married lesbian women, Mary Walsh and Bev Nance, have been in a committed relationship for decades and were looking for the right place to live out their years in retirement. They chose the Friendship Village retirement community in 2016 after discussing it with friends who lived there and receiving what they believed to be a welcoming tour.
But their application for residence was rejected specifically because of their sexual orientation. Even though Friendship Village, in Sunset Hills, Missouri, claims no specific religious affiliation, the management's cohabitation policy defines marriage as a union between one man and one woman "as marriage is understood in the Bible."
Many Americans thought this issue was settled in 2015 when the U.S. Supreme Court upheld the constitutional right of same-sex marriage. Justice Anthony Kennedy, writing for the majority, stated unequivocally, "No longer may this liberty be denied."
But U.S. District Judge Jean C. Hamilton effectively ruled that the Fair Housing Act has not been updated to reflect the Supreme Court's sentiments. Until Congress alters the law accordingly, courts may not read words into the law that aren't there.
The act does prohibit discrimination based on race, color, religion, sex, familial status or national origin but not sexual orientation, Hamilton ruled. The plaintiffs' lawyer correctly argued that sex discrimination is inherent in Friendship Village's denial of residency since the facility's marriage definition is sex-specific.
This ruling screams for additional litigation. Other circuits have ruled that the Fair Housing Act discrimination based on sexual orientation constitutes a form of sex discrimination. Hamilton acknowledged those rulings but said she is bound by the rulings of the 8th Circuit, to which her court belongs.
Hamilton chose to stay in her lane judicially. But the discrimination Walsh and Nance faced was real, hurtful and undeniable. They didn't deserve this kind of shoddy treatment. The onus is on Congress to make sure that all federal laws are updated to conform to the Supreme Court's 2015 ruling. Married gay and lesbian couples deserve equal treatment under the law.
Similarly stuck in the dark ages is the Missouri House, which this week rejected a proposed rule to add anti-discrimination protections for LGBT House employees. Republican Rep. Mike Stephens of Bolivar prodded his colleagues to acknowledge that times are changing, and it's time to stop living in the past. His appeal fell on ears deafened by the sclerotic traditions of a bygone era.
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