We can only hope that the Illinois Supreme Court was relying on Chapter 720 Section 5/11-8 of the state criminal code and not Chapter 20 of the Book of Exodus in ruling last week in favor of Ronald Jasniowski, the fundamentalist Christian landlord who refused to rent to an unmarried couple.
That little-to-never-used statute outlaws fornication–makes it a Class B misdemeanor for a person “to have sexual intercourse with another not his (or her) spouse . . . if the behavior is open and notorious.”
It would be reasonable, though picayune, if the justices concluded that Jasniowski, not wanting to harbor criminals in his North Side apartment, declined in 1992 to rent to Benson Rushing and Mary Tews, a man and woman who claimed to be married but could offer no proof of their claim.
If, for example, a prospective tenant signaled an intention to run a crack house or sell automatic weaponry on the premises, a landlord ought to be within his rights to decline. Even if a prospective tenant announced plans to manufacture slugs to fool vending machines–the use of which is, similarly, a Class B misdemeanor–the landlord should be able turn him away.
The anti-fornication law would be a thin thread upon which to hang a big legal ruling. A couple that pretends to be married and presumptively engages in sexual acts behind closed doors is hardly behaving in an “open and notorious” manner. And the hope here is that the reason the justices did not offer comment last week in vacating lower court decisions that went against the landlord is that they were shy about publicly relying upon a law that reflects a very old sensibility about the role of government in policing the consensual sexual activity of adults.
If not, the court appears to have bought into Jasniowski’s central argument, which is that a law that compels him to rent to a couple breaking the Biblical commandment against sex outside of marriage violates his Constitutional right.
“I have religious rights, and as steward of this property, I cannot support this kind of immoral activity,” was how he put it in a 1994 interview.
The question the court ducked by not explaining its ruling is, if such open-housing laws violate religious rights, where do those rights end?
For example, Jesus has some very harsh words to say about divorce in Matthew 19:9 “Whosoever shall put away his wife, except it be for fornication, and shall marry another, commiteth adultery.”
Would Jasniowski be within his rights to refuse to rent his apartment to, say, Newt Gingrich and his second wife, on the grounds that Gingrich “put away” his first wife for, well, apparently other reasons?
Would he be within his rights to refuse to rent to a person estranged from his parents, on the grounds that he is violating the commandment that says one should honor one’s mother and father? Would he be within his rights to refuse to rent to a pantheist or an atheist or a maker of graven imagery or someone whose job requires him to work on the Sabbath instead of keeping it holy?
If it was the constitutional claim (and not the statutory claim regarding fornication) that moved the silent justices to find for the landlord, what other claims might we expect from landlords elsewhere with less mainstream religious views? It’s an established historical fact that just about every vile prejudice and form of cruelty has been practiced at one time or another by people who’ve found justification within the ambiguities, odd translations and clipped phraseology of their holy writ. Racists, sexists, religious bigots and sponsors of genocide can and in some cases still do cite chapter and verse in self-justification.
Such people can believe whatever they want. Our laws say so. But our laws also limit the ways landlords and everybody else can act upon their beliefs–framing what is acceptable behavior in a secular context that avoids the tedious, irresolvable and often bloody fights about what God does and doesn’t say is right.
Whether sex outside of marriage is always immoral or not is, bluntly, a matter of opinion upon which people in this country are divided. One of those opinions still, technically, has the force of law. If that’s not what the silent ones in black robes meant to tell us last week, it ought to have been.
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