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N.D. court hears arguments in Fargo housing bias lawsuit
By Janell Cole
The Forum - 11/18/2000

BISMARCK, N.D. – The winner of a semantic tug-of-war over the meaning of North Dakota’s criminal cohabitation law will have the upper hand in a housing discrimination lawsuit.

The North Dakota Supreme Court on Friday took up the question whether the cohabitation law prohibits opposite-sex couples from living together under any circumstances or only if they fraudulently purport to be married.

The case originated in Fargo in 1999 when Robert Ray and Patricia Yvonne Kippen, who are now married, sought to rent housing from David and Mary Peterson by answering a classified ad. When Robert Kippen called Mary Peterson, she asked him if he wanted the apartment for himself and he said he would be living there with his fiancée. Mary Peterson told him she would not rent to them because of a North Dakota law prohibiting cohabitation. She said she and her husband don’t rent to unmarried couples.

The Kippens, along with the North Dakota Fair Housing Council Inc., a nonprofit corporation, sued, saying this was unlawful discrimination on the basis of marital status, a violation of the state human rights act.

In May, Cass County District Judge Ralph Erickson ruled that refusal to rent to an unmarried couple is not discrimination based on marital status. He said the refusal was not about their marital status but only about their “conduct” as an unmarried couple choosing to live together.

That was the same argument the Petersons’ attorney used at the hearing in Bismarck Friday.

“Cohabitation is not status – it’s conduct – and it’s not protected,” Jack Marcil of Fargo, attorney for the Petersons, told the justices. “What the Petersons did was not a violation of the act.”

But Christopher Brancart of California, the lawyer for the Kippens and the housing council, said the human rights act’s phrase “status with respect to marriage,” is unambiguous and clearly would cover an unmarried couple. He said a refusal to rent to them is based on their status of being unmarried, not their conduct of living together.

He called the argument over “status” vs. “conduct” a “fundamentally incoherent” concept.

“The word ‘marriage’ is a specific legal status ... (state law) protects North Dakotans against discrimination based on whether they are married, unmarried, divorced, separated, single, etc.” he wrote in a brief. “When a man and woman who are unmarried and want to live together are denied housing because they are unmarried, such a denial is discrimination.”

The justices entertained many hypothetical questions. Justice Mary Maring wondered if she were to seek to live with her brother, could a landlord refuse them housing on the basis of the cohabitation law? Chief Justice Gerald VandeWalle wondered if two people of the opposite sex who are not sexually intimate could rent a two-bedroom apartment or if they would be covered by the cohabitation law.

Marcil, who moments earlier made a point to mention that the Kippens admitted they were sexually intimate, then said cohabitation does not necessarily mean the couple is having sex.

Also at issue is the change in the cohabitation law by the 1973 Legislature. Brancart said the state decriminalized the law and turned in into a “marriage fraud” law when it tinkered with a few words.

Marcil argued the Legislature never changed the meaning of the law in 1973.

“They changed the law but they didn’t expect to change anything?” asked Justice William Neumann.

The case is also about whether the housing council has standing to bring such suits. Erickson dismissed the council from the Kippen-Peterson suit about three months before he ruled against the Kippens. He said they did not meet the definition of an aggrieved party with a loss to claim.

But the council’s attorneys say the North Dakota court should be bound by a 1982 U.S. Supreme Court ruling that said fair housing organizations do have standing in such cases.

The justices took the case under advisement and will issue a decision later.  

[Editors Note: UND not only uses this antiquated law to harass heterosexual couples, but finds it grounds to remove anyone gay as well. N.D. H.U.D. also uses this law to discriminate against gays. ]

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