Should Nondiscrimination Laws Protect Cohabitation?

Cohabitation is frequently examined in popular media as a moral and cultural phenomenon, but its legal aspects are usually overlooked. Even so, many would not be surprised to learn that earlier state laws banning nonmarital cohabitation have been overturned or generally go unenforced across the United States. It might be surprising to consider, however, that several states have moved to the other end of the spectrum: specially protecting cohabiting adults in laws which ban discrimination in employment, accommodations, and housing. This protection is part of “civil rights” legislation, which also shields citizens from discrimination based on factors like race, sex, and religion.

Landlords, hoteliers, and employers with religious conscientious objections to hiring or housing cohabitants are regularly caught by such nondiscrimination laws. And a legal literature has sprung up defending cohabitants’ rights and advocating their expansion under the umbrella of civil rights. Often, this literature ignores or fails to acknowledge some of the risks associated with cohabitation. It also overlooks the potential benefits of allowing conscientious objectors to avoid cooperating with cohabitation and to publicly signal the differences between cohabitation and marriage.

Beginning in the 1970s and continuing for a while into the 1980s, about 21 states added “marital status” to the list of categories upon which employers, landlords, and hotels could no longer base their decisions to exclude. To put it differently, employers, landlords, and hotels can decide against transacting with an applicant or customer based upon a wide variety of traits and circumstances—e.g. personality, profession, or credit history—but nondiscrimination laws forbid them from refusing to transact on the basis of a legislatively-determined list of factors like race, sex, religion, and in some jurisdictions, “marital status.”

Jurisdictions differ in their definition of “marital status”—either as a matter of statutory language or judicial interpretation. Some define “marital status” simply as the state of being married or single. They understand their laws as responding to business practices at the time of enactment, which often discriminated against single women. Other jurisdictions—usually through judicial interpretation—define “marital status” more broadly to include protection for cohabitants. They reason, for example, that an employer who fires a woman for cohabiting is punishing her for being “single” while she is cohabiting in a sexual relationship, while the employer would not fire a “married” woman doing likewise. Illustrative are the words of a recent case (Richardson v. Northwest Christian University) involving a private religious university in Oregon that had attempted to fire a pregnant, cohabiting teacher who had signed a pledge at hiring, promising to abide by the school’s religious convictions. The court ruled:

Even though both married and unmarried individuals may have sex outside of marriage, when single people have sex, it is always outside of marriage. I conclude that the conduct/status correlation here is close enough that a policy against extramarital sex/cohabitation effectively discriminates on the basis of marital status.

The Richardson court noted that there was a division of opinion among states—with Alaska, California, and Massachusetts interpreting “marital status” to include cohabiting, and North Dakota, Minnesota, Montana, and Wisconsin rejecting this interpretation. It also held that: the university’s status as a religious institution permitted it to hire only co-believers, but not to discriminate based upon marital status; that the professor was not a “minister” within the Supreme Court’s requirement that states refrain from interfering with ministerial employment decisions; and that the case did not involve a court interfering with a religious institution’s religious doctrine.

Religious conscientious objectors may also lose because a state court determines that the state’s interest in protecting cohabitants is stronger than a citizen’s interest in avoiding behavior violating his or her religion. This can happen because, in some states, nondiscrimination laws (which are facially neutral respecting religion and applicable to the general public) need only be justified under the First Amendment Free Exercise Clause by a “rational” state interest (under the Supreme Court’s Employment Division v. Smith case), the existence of which is extremely difficult to disprove. Even in states, such as Alaska, with strong constitutional protections for the free exercise of religion, religious landlords can lose because the state considers housing cohabitants a state interest of the highest order. In Swanner v. Anchorage Equal Rights Commission, for example, the Alaska Supreme Court opined that:

The government views acts of discrimination as independent social evils even if the prospective tenants ultimately find housing. Allowing housing discrimination that degrades individuals, affronts human dignity, and limits one's opportunities results in harming the government's transactional interest in preventing such discrimination.

In addition to such cases, there is a small but significant legal literature defending cohabitants’ rights under the banner of civil rights. This body of work makes some important observations about the disproportionate numbers of disadvantaged Americans who cohabit but tends to avoid engaging some important difficulties associated with cohabitation.

University of California Davis law professor Courtney Joslin, for example, supports expanding cohabitants’ rights respecting housing and employment, enlisting several arguments. She claims, first, that after the 2003 Supreme Court opinion in Lawrence v. Texas, consensual sexual intimacy is constitutionally protected. Individuals, she continues, cannot, therefore, be permitted to discriminate against another person choosing to exercise this right. Even if this is a correct reading of Lawrence (which is much disputed), it would not require a state to include cohabitation in a list of protected statuses. At most, it might forbid laws punishing cohabitation. After all, abortion is a constitutional right, but there are dozens of laws providing conscience protection to citizens who object to cooperating with it.

Second, Professor Joslin claims that legal and social rejection of cohabitation has been and continues to be tied to race discrimination. Her argument on this point is quite brief and relies largely on anecdotes and now-overturned laws about nonmarital children, not cohabiting adults. It also fails to grapple with that fact that religious citizens have expressed conscientious objections to facilitating cohabitation among any and all races, not just one or a few.

Likewise, Professor Elizabeth Pleck’s historical treatment of cohabitation in her book, Not Just Roommates: Cohabitation After the Sexual Revolution, takes a civil rights perspective on cohabitation, portraying cohabitants as victims and heroes on the continuum of transgressive sex.

While neither of the above authors grapples with the available data about some of the risks and disadvantages associated with cohabitation, a new book by professors Sharon Sassler and Amanda Jayne Miller offers a far more nuanced and complete treatment of cohabitation. In Cohabitation Nation: Gender, Class, and the Remaking of Relationships, the authors highlight the difficulties suffered disproportionately by less privileged Americans who wish to marry, but often cohabit instead or for a while, in part because of their financial and employment straits. Sassler and Miller provide a rich body of data showing that poorer Americans cohabit before marriage more often than the privileged; less often transition into marriage; have more children during cohabitation; are more likely to break up before the wedding and to divorce if they do marry; and move in more quickly after meeting the partner, which in turn leads to more relationship conflict and more failures in the efficacious use of contraception. Poorer Americans also cite economic need more often as the reason for cohabitation and are more likely to report more rigid gender roles, and a sense, on the woman’s part, that these are not open for negotiation.

While they are quite sympathetic regarding the structural conditions leading the poorer to feel less able to wed, Sassler and Miller are also realistic about the disadvantages suffered by poorer cohabiting women, men, and children. They do not cheerlead for civil rights for cohabitants per se, but rather champion structural solutions to support their economic health, or transition into marriage, such as a living or family wage and adequate health care. Unlike the above authors who encourage the enforcement of nondiscrimination laws upon conscientious objectors, Sassler and Miller suggest housing solutions that might allow persons to live without a cohabiting partner or might incentivize marriage among cohabitants, such as affordable and inclusionary housing policies, including micro-units as well as units big enough for children.

It is impossible to reflect on the subject of cohabitation and nondiscrimination law without careful nuance. We are easily moved by the needs of poorer Americans for affordable housing within a reasonable distance of available employment, which is a simple matter of irreducible human dignity. Most of us also reject the specter of officers of the law, breaking into homes to determine the private sexual behaviors of the residents therein.

Yet these positions do not settle the question of whether cohabitants should be protected under nondiscrimination laws. Cohabitation is regularly associated with later difficulties in couples’ relationships, stemming from a lack of clarity about their intentions, and the way it facilitates the “sliding versus deciding” path to marriage. There are very high rates of unintended births within cohabiting households—far higher rates than among dating or married couples. Furthermore, cohabiting relationships are significantly more likely to dissolve than marriage, leaving any children at risk for the instability that scholars are increasingly identifying as perhaps the most important piece of “family structure effects.” Cohabiting relationships are also decreasingly likely to transition into marriage; when they do, there are likely both selection and causal factors operating to render their union more fragile in many, though of course not all, cases. Rates of domestic violence against women and children are also quite high in cohabiting households, especially when the household includes a man who is not biologically related to one or more children.

The vast majority of employers, landlords, and hotels have no interest in excluding cohabiting employees or clients. Regarding the few who do wish to conscientiously object, the law might wish to preserve their ability to do so. Otherwise, there will be too few voices keeping alive the idea, which is supported by ample social science, that cohabitation differs markedly from the vowed commitment of marriage in ways important to the well-being of vulnerable people, particularly children. Advocates for less-advantaged Americans who are more likely to cohabit might more constructively advocate for the types of social policies endorsed by Sassler and Miller that are aimed at boosting wages and dramatically improving affordable housing options.

Helen Alvare’ is a Professor of Law at George Mason University School of Law, and the co-founder of Women Speak for Themselves.

Editor's Note: The views and opinions expressed in this article are those of the author and do not necessarily reflect the official policy or views of the Institute for Family Studies.