What the Supreme Court Ruling on Same-sex Marriage Means for Landlords

Written on July 6, 2015 by , updated on November 1, 2017

Same Sex MarriageOn June 26, the U.S. Supreme Court ruled 5-4 that states cannot prevent same-sex couples from marrying and all states must legally recognize their unions.

But how does that affect a landlord’s obligation to provide fair housing?

The answer is simple. It doesn’t.

Marital status and sexual orientation should never be an evaluation factor in the tenant screening process.

What Really Matters?

Renters should be evaluated on their ability and willingness to pay for and maintain a rental unit – end of story.

There are several factors that come into play when choosing tenants, such as income, credit data, previous evictions, judgments, liens, intended use, and even attitude. However, at the end of the day, a rental unit is a business, and the renter is a customer. Decisions to approve or reject an applicant should never be based on prejudices, phobias, stereotypes, or bias.

The recent Supreme Court ruling to legalize same-sex marriages didn’t change anything for housing providers. It simply gave same-sex couples the right to get a state-issued marriage certificate and subsequent benefits.

Landlords, managers, sellers, and lenders have always been expected to be fair and equal in their evaluation of applicants, even if they don’t agree with a person’s lifestyle choices. Unfortunately, it wasn’t until the Civil Rights Act of 1968 (Fair Housing Act) and subsequent revisions, did these fair housing practices become law.

Related: The Landlord’s Guide to Tenant Screening

Federal vs. State Laws

According to the U.S. Department of Housing and Urban Development (HUD), the federal Fair Housing Act prohibits housing discrimination based on race, color, national origin, religion, sex, disability, and familial status.

These are commonly referred to as the “7 Federally Protected Classes” or “Federal 7” for short.

However, most housing providers don’t realize that the Fair Housing Act does not specifically include “sexual orientation” or “marital status” as protected classes – at least not at a national level.

It’s a completely different story at the state level. A lesbian, gay, bisexual, or transgender (LGBT) person’s sexual preference, orientation, or gender identity are legally protected classes for the purposes of housing in 22 states, including California and Oregon.

Realistically, the fact that a couple is married or unmarried should not matter to a housing provider. Either way, their combined incomes, debts, judgments, and evictions are evaluated as a single entity – under joint and several liability.

Tenant screening is about evaluating the entirety of the applicant, but there are some factors which are easy to judge. For example, applicants either have adequate income or they don’t. Their credit is either good enough, or it’s not.

It’s about setting thresholds that each applicant must pass – and holding everyone to the same bar. It doesn’t have to be difficult, but when landlords overcomplicate the screening process, they tend to make compromises that can be viewed as discriminatory.

The Federal Government Enforces Equality

White House

While the Fair Housing Act does not specifically list sexual orientation or marital status as protected classes, housing providers that receive HUD funding, or have loans insured by the Federal Housing Administration (FHA), are subject to HUD program regulations which ensure equal access of LGBT persons.

It’s HUD’s way of saying, if you want funding, then play fair.

The Supreme Court ruling was not unusual in comparison to recent federal orders and court decisions that have been generating more protections for equal opportunities.

A 2014 executive order, President Obama outlawed discrimination based on sexual orientation and gender identity by federal agencies and contractors.

Similarly, the Equal Employment Opportunity Commission has determined that discrimination based on sexual orientation or gender identity is the same as illegal sex discrimination under Title VII of the Civil Rights Act.

So What’s a Landlord to Do?

America is changing, and it’s difficult to keep track of all the legislation. But landlords should not be scared of fair housing laws. With a little effort, they can be easily understood and followed.

Those housing providers who continue to screen applicants based on sexual orientation, marital status, or any other protected class, will inevitably find themselves before a Fair Housing review board. Religious and educational institutions may still be able to retain some rights to segregate based on tradition and belief, but it’s questionable as to how long that will last.

In summary, there are no laws against equality. Ignorance is not an excuse. Housing providers would be wise to keep their evaluation criteria limited to legitimate financial and business reasons, and to hold every applicant to the same standards.

Supporting Resources

Fair Housing Agencies, by State

AlabamaKentuckyNorth Dakota
AlaskaLouisianaOhio
ArizonaMaineOklahoma
ArkansasMarylandOregon
CaliforniaMassachusettsPennsylvania
ColoradoMichiganRhode Island
ConnecticutMinnesotaSouth Carolina
DelawareMississippiSouth Dakota
District of ColumbiaMissouriTennessee
FloridaMontanaTexas
GeorgiaNebraskaUtah
HawaiiNevadaVermont
IdahoNew HampshireVirginia
IllinoisNew JerseyWashington
IndianaNew MexicoWest Virginia
IowaNew YorkWisconsin
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6 CommentsLeave a Comment

  • Terry Oldham

    Hi Lucas! What a timely message! I have a couple of questions for you; what if one rents out a room in their house; do the same rules apply? Where is the line drawn between allowing one to have their own personal reasons who lives in their place they bought, fixed up, assumed the risk, etc. or not? Thanks!

    • Lucas Hall

      Hi Terry,

      It really depends on your state statutes. Generally speaking, while there are some laws that allow for exceptions if the unit also serves as your personal dwelling and you are choosing roommate, fair housing laws typically still apply.

      It’s a touchy subject for sure. Strong arguments can be made for both sides – especially in roommate situations.

    • Lucas Hall

      Hi Terry,

      I was reviewing the Fair housing act, and some of the exceptions to it.

      I learned that the “Fair Housing Act is not applicable to owner-occupied dwellings with no more than four units”.

      Here’s a great guide: http://www.jmls.edu/fairhousing/pdf/laypersons-guide-english.pdf

      I hope that helps!

  • William Dorough

    Lucas,

    Great message! All investors should know this supreme court rule will not affect how rental tenants should be screened or analyzed.
    Some people’s political view may interfere or give a different thoughts/attitudes towards certain category of people (rage, sexual orientation and many other categories) but those information should not be used for analysis and they should understand that.

    William Dorough

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