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In McCready, direct evidence was presented that the defendants considered the marital status of the plaintiffs in refusing to engage in the desired real estate transaction.
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Docket Nos. 108995, 108996.
Argued October 7, 1998 (Calendar No. 16).
Decided December 22, 1998. FILED DECEMBER 22, 1998 UPDATED December 14, 1999
An appeal from the Jackson Circuit Court, Edward J. Grant, J.,
(Baiz) Jackson Circuit Court, Alexander C. Perlos, J.
Court of Appeals, Corrigan, P.J., and Taylor and D. A. Johnston, JJ. (Docket Nos. 185152, 185314). 222 Mich. App. 210; 564 N.W.2d 493 (1997).
Fleming Fleming, P.C. (by James B. Fleming and Anne D. Fleming)[607 Wildwood Avenue, Jackson, MI 49201-1014] [(517) 782-9500]; Jerrold Schrotenboer, of counsel [300 County Courthouse, Jackson, MI 49201-2220] [(517) 788-4283], for plaintiffs-appellants.
LaFlamme Mauldin, P.C. (by Richard N. LaFlamme) [2540 Spring Arbor Road, Jackson, MI 49203] [(517) 784-9122], for defendants-appellees.
Amici Curiae:
Rudolph A. Serra [1023 Parker, Detroit, MI 48214-2612] [(313) 331-7839] and Thomas F. Coleman [P.O. Box 65756, Los Angeles, CA 90065] [(213) 258-5831] for Triangle Foundation and Spectrum Institute.
Stancato Tragge, P.C. (by Henry Stancato) [440 E. Congress, Fourth Floor, Detroit, MI 48226] [(313) 963-5055], for Fair Housing Center of Metropolitan Detroit, Jackson County Fair Housing Center, Fair Housing Center of Greater Grand Rapids, Tri County Fair Housing Center, Fair Housing Center of Washtenaw County, American Civil Liberties Union Fund of Michigan.
BEFORE THE ENTIRE BENCH (except Taylor, J.).
We granted leave in this case to determine whether the defendants violated the Civil Rights Act, when they refused to rent to the unmarried plaintiffs. We conclude that the defendants discriminated against the plaintiffs on the basis of their marital status in violation of the Civil Rights Act. Defendants' constitutional freedom of religion rights do not supersede the plaintiffs' civil rights under the act. We reverse the decision of the Court of Appeals and direct the circuit court to enter summary disposition in favor of plaintiffs.
MCL 37.2502 (1); MSA 3.548 (502)(1).
Const 1963, art 1, § 4; US Const, Am I.
I FACTUAL AND PROCEDURAL BACKGROUND
Defendants John and Terry Hoffius, a married couple, own residential property in Jackson, Michigan, which they rent. In June 1993, plaintiffs Kristal McCready and Keith Kerr answered defendants' advertisement about the property. Defendants refused to rent it to these plaintiffs when they learned that McCready and Kerr were single, but intended to live together. Similarly, plaintiff Rose Baiz telephoned defendants about the property a month later. Defendants refused to rent to Baiz, also, when they learned that she was not married to plaintiff Peter Perusse, yet planned to live with him. Defendant John Hoffius told these plaintiffs that unmarried cohabitation violated his religious beliefs.
Plaintiffs filed two separate complaints with the Jackson Fair Housing Commission. Testers from the commission posed as potential renters and contacted defendants. Defendants did not ask the marital status of all the testers. However, they refused to permit unmarried couples to inspect the apartments, claiming that the units were available only to married couples. They stated that usually they did not rent to unmarried couples.
Plaintiffs filed two separate actions in circuit court. Defendants moved for summary disposition, arguing in part that plaintiffs failed to state a claim upon which relief could be granted, because the Civil Rights Act does not protect unmarried cohabitation. Defendants argued alternatively that, if the act protects unmarried cohabitation, it is unconstitutional, because it would force defendants to violate their sincerely held religious beliefs against unmarried cohabitation. Plaintiffs also filed summary disposition motions.
The motions were heard separately, but decided similarly. Both circuit court judges opined that the cases involved statutory interpretation, and both declined to address the constitutional issues. The judges noted that the Civil Rights Act protects status, not conduct. They opined that unmarried cohabitation was unprotected conduct. Accordingly, they determined that the Civil Rights Act does not protect unmarried cohabitation. Both granted summary disposition in favor of the defendants.
Plaintiffs appealed to the Court of Appeals, which consolidated the appeals and affirmed the circuit court decisions. This Court granted plaintiffs applications for leave to appeal.
222 Mich. App. 210; 564 N.W.2d 493 (1997).
457 Mich. 851 (1998).
II. ANALYSIS A. STANDARD OF REVIEW
In granting the defendants' motions for summary disposition, neither circuit court specified the basis for its order. This Court reviews orders granting summary disposition de novo. Groncki v Detroit Edison Co, 453 Mich. 644, 649; 557 N.W.2d 289 (1996). We consider the evidence in the light most favorable to the nonmoving party, and make all legitimate inferences in that party's favor. Skinner v Square D Co, 445 Mich. 153, 162; 516 N.W.2d 475 (1994).
The determination whether the Court of Appeals properly interpreted the meaning of "marital status" as used in the act is another question of law that we review de novo. Cardinal Mooney High School v Michigan High School Athletic Ass'n, 437 Mich. 75, 80; 467 N.W.2d 21 (1991).
B. MARITAL STATUS
The Civil Rights Act prohibits discrimination based on marital status. The question before us is whether the states interest in providing equal access to housing to all "regardless of their membership in prescribed categories supersedes defendants' religious rights. It is complicated by the existence of an antiquated and rarely enforced statute prohibiting lewd and lascivious behavior.
MCL 750.335; MSA 28.567 provides:
Any man or woman, not being married to each other, who shall lewdly and lasciviously associate and cohabit together, and any man or woman, married or unmarried, who shall be guilty of open and gross lewdness and lascivious behavior; shall be guilty of a misdemeanor. . . .
First, we examine the language of the Civil Rights Act itself. It provides, in pertinent part:
(1) A person engaging in a real estate transaction, or a real estate broker or salesman, shall not on the basis of religion, race, color, national origin, age, sex, familial status, or marital status of a person or a person residing with that person:
(a) Refuse to engage in a real estate transaction with a person. [MCL 37.2502(1)(a); MSA 3.548(502)(1)(a).]
Being that the act is remedial, we construe it liberally. Dep't of Civil Rights ex rel Parks v General Motors Corp, 412 Mich. 610, 650; 317 N.W.2d 16 (1982). We strive to give effect to the Legislature's intent in drafting it. Turner v Auto Club Ins Ass'n, 448 Mich. 22, 27; 528 N.W.2d 681 (1995).
The Court of Appeals noted correctly that the purpose of the act was to prevent discrimination based on membership in certain classes. It was intended to eliminate the effects of offensive or demeaning stereotypes, prejudices, and biases. 222 Mich. App. 210, 215; 564 N.W.2d 493 (1997); Miller v C A Muer Corp, 420 Mich. 355, 362; 362 N.W.2d 650 (1984). However, we cannot agree with the Court of Appeals determination that the act does not protect the plaintiffs in this case.
The sole factor that defendants employed in determining that plaintiffs were unworthy of renting their available apartments was plaintiffs marital status. The Legislatures intent to prohibit discrimination based on this factor is made clear by the inclusion of "marital status" in the act. "The language is simple, and its meaning is not difficult to comprehend." Markham v Colonial Mortgage Service Co, 196 US App. DC 50, 53; 605 F.2d 566 (1979). It seeks to prohibit discrimination "based on whether a person is married." Miller, supra at 363. Nothing in the legislative history of the Civil Rights Act limits the term "marital status" to protecting married couples only.
When faced with a similar argument, that "marital status" does not include unmarried couples, the California Supreme Court recently determined that "[t]he statutory language banning discrimination based on "marital status naturally carries both meanings [married and unmarried]." Smith v Fair Employment and Housing Comm, 12 Cal.4th 1143, 1156; 51 Cal.Rptr.2d 700; 913 P.2d 909 (1996). We agree. Where the language of a statute is clear and unambiguous, the courts must apply the statute as written. Turner, supra at 27.
In this case, the defendants refused to rent to plaintiffs because their marital status is "single" and, therefore, unmarried. We will not read the act to shield such a discriminatory act.
"The usual answer to a query about ones marital status is `married,' `single,' `divorced,' `widowed,' or `separated.'" Miller, supra at 362.
1. STATUS VERSUS CONDUCT
The defendants argue that they did not discriminate against plaintiffs because of their marital status; rather, they refused to rent to plaintiffs on the basis of their perception of plaintiffs' conduct.
In Swanner v Anchorage Equal Rights Comm the Alaska Supreme Court interpreted the definition of marital status as used in its statute, one similar to Michigan's, which prohibits discrimination in real estate transactions. In Swanner, the court affirmed an Anchorage Equal Rights Commission order that the landlords policy against renting to unmarried couples constituted unlawful discrimination based on marital status. The landlord would have rented his properties to certain couples had they been married, and refused to rent to them after learning they were single. The court concluded that the landlord had unlawfully discriminated on the basis of marital status. Id. at 278.
874 P.2d 274 (Alas, 1994), cert den 513 U.S. 979 (1994).
When the Alaska Supreme Court decided Swanner, the Alaska Legislature had already struck down, its statute prohibiting cohabitation. That court's analysis of "marital status" is still instructive to this Court. The landlord in Swanner argued, as the landlords argue here, that he did not discriminate against anyone on the basis of marital status. Rather, he asserted, he discriminated because of the applicant's conduct, and such discrimination is not prohibited by the statute.
The court in Swanner found that the landlord "cannot reasonably claim that he does not rent or show property to cohabitating couples based on their conduct (living together outside of marriage) and not their marital status when their marital status (unmarried) is what makes their conduct immoral in [the landlord's] opinion." Id. at 278, n 4. We agree with this analysis.
Here, the, defendants contend that their refusal to rent to plaintiffs was based on plaintiffs' conduct, not on their status, and that this discrimination is legally acceptable. We find that defendants' reasoning defies "legal examination and legislative resolve alike." Dane Co v Norman, 174 Wis.2d 683, 693; 497 N.W.2d 714 (1993) (Heffernan, C.J., dissenting). By rejecting this argument, we join the high courts of Alaska, Massachusetts, and California that recently rejected similar arguments.
Swanner, supra, Attorney General v Desilets, 418 Mass. 316, 320; 636 N.E.2d 233 (1994), and Smith, supra.
In Attorney General v Desilets, the Massachusetts Supreme Judicial Court found that an
analysis of the [defendant landlords'] concerns shows that it is marital status and not sexual intercourse that lies at the heart of the defendants' objection. If married couple A wanted to cohabit in an apartment owned by the defendants, they would have no objection. If unmarried couple B wanted to cohabit in an apartment owned by the defendants, they would have great objection. The controlling and discriminating difference between the two situations is the difference in the marital status of the two couples. [ Id. at 320.]
Plaintiffs' marital status, and not their conduct in living together, is the root of the defendants' objection to renting apartments to the plaintiffs.
The Court of Appeals accurately noted that the public policy of this state favors the institution of marriage. Acknowledging that, we agree with the court in Smith, supra, that "[o]ne can recognize marriage as laudable, or even as favored, While still extending protection against housing discrimination to persons who do not enjoy that status."
Smith. supra at 1160.
2. LEWD AND LASCIVIOUS CONDUCT
The Court of Appeals panel decided that the Legislature would not have intended the Civil Rights Act to insulate conduct made criminal by the statute prohibiting lewd and lascivious behavior by unmarried couples. MCL 750.335; MSA 28.567. Consequently, according to the panel, cohabitation must not be protected conduct under the Civil Rights Act. The panel "decline [d] to recognize the Civil Rights Act as preventing housing discrimination against unmarried couples and at the same time legitimizing criminal conduct." McCready, supra at 216-217. We find the Court of Appeals reasoning unpersuasive.
By protecting plaintiffs' right to equal access to housing, the Court cannot be said to legitimize criminal conduct. The lewd and lascivious behavior statute has not been used to successfully prosecute unmarried couples who were cohabitating for nearly sixty years.
People v. Davis, 294 Mich. 499; 293 N.W. 734 (1940), and People v. June, 294 Mich. 681; 293 N.W. 906 (1940).
In 1940, two married couples that had essentially swapped spouses were convicted of violating the statute. Davis and June, supra. This Court unanimously reversed the convictions. We found that the lewd and lascivious nature of the relationships had not been shown, although the prosecutor had provided proof that the men were cohabitating with each other's wives.
Recently, in the employment context, a federal district court reviewed the living arrangement of a police officer to determine whether he had violated Michigan's statute. At the time, the officer was living with a woman who was not his wife. The judge found that "[c]ohabitating with one who is not one's wife is not, without more, lewd and lascivious conduct." Briggs v. North Muskegon Police Dep't, 563 F. Supp. 585, 591 (WD Mich, 1983).
The statute does not prohibit cohabitation per se. To be found guilty under it, the couple must "lewdly and lasciviously associate." In this case, there is insufficient evidence that the plaintiffs intended to engage in lewd and lascivious behavior.
The parties have not directly attacked the constitutional validity of the statute. Thus, we will not undertake such an analysis.
Finally, the issue before this Court is not whether plaintiffs violated, or might in the future violate, the lewd and lascivious behavior statute. It is whether the defendants violated plaintiffs' civil rights. We find that they did.
III. RELIGIOUS DEFENSES
The defendants assert that the Civil Rights Act violates their religious freedom rights under art 1, § 4 of the Michigan Constitution and under the First Amendment of the United States Constitution.
The United States Constitution forbids restrictions to the free exercise of religion. The United States Supreme Court recently ruled that the Religious Freedom Restoration Act is unconstitutional. The method to test the constitutionality of alleged restrictions on religious freedom is found in Employment Div Oregon Human Resources Dep't v. Smith. It holds that a law burdening a religious practice must be neutral and of general applicability.
City of Boerne v. Flores, 521 U.S. 507; 117 S Ct 2157; 138 L Ed 2d 624 (1997).
494 U.S. 872; 110 S Ct 1595; 108 L Ed 2d 876 (1990).
The defendants concede that the Civil Rights Act is neutral. However, they contend that the act fails the general applicability prong of the test, because it creates nonreligious exemptions. They point to the exemptions concerning owner-occupied leased residences and the exclusion of "marital status" from the forms of discrimination applicable to housing accommodations at state institutions of higher learning. Defendants conclude that, because the Legislature provided these exemptions but no exemptions for religiously motivated landlords, the Civil Rights Act fails the general applicability prong.
MCL 37.2503(1)(a), (b); MSA 3.548(503)(1)(a), (b).
We cannot agree. The law is generally applicable because it prohibits all discrimination and has no religious motivation. The statute contains no language singling out any religious group or practice. See Swanner, supra at 280. It "app[lies] to all people involved in renting or selling property, and do[es] not specify or imply applicability to a particular religious group." Id.
We agree with the California Supreme Court, which addressed this claim when made by the landlord in Smith, supra.
[The landlord's] religion may not permit her to rent to unmarried cohabitants, but "the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes)." [ Smith, supra at 1161; accord, Employment Div, supra at 879.]
Thus, we conclude that the Civil Rights Act does not violate the Free Exercise Clause of the First Amendment of the United States Constitution.
Next, we turn to defendants' claim that the act violates their religious freedom under art 1, § 4 of the Michigan Constitution of 1963. We analyze the Civil Rights Act under the compelling state interest test developed by the United States Supreme Court in Wisconsin v. Yoder and Sherbert v. Verner.
406 U.S. 205; 92 S Ct 1526; 32 L Ed 2d 15 (1972).
374 U.S. 398; 83 S Ct 1790; 10 L Ed 2d 965 (1963).
The test has five elements: (1) whether a defendant's belief, or conduct motivated by belief, is sincerely held; (2) whether a defendant's belief, or conduct motivated by belief, is religious in nature; (3) whether a state regulation imposes a burden on the exercise of such belief or conduct; (4) whether a compelling state interest justifies the burden imposed upon a defendant's belief or conduct; and (5) whether there is a less obtrusive form of regulation available to the state. Yoder, supra at 214-230.
In the instant case, the trial court and the Court of Appeals did not undertake this analysis because they found no discrimination. Thus, no legal or factual determinations were made with respect to this issue.
However, even if we were to remand the case for factual findings, defendants could not prevail on the legal questions. For purposes of analysis, we concede to the defendants' benefit the first three prongs of the test.
The fourth prong requires an examination of whether a compelling state interest in providing equal access to housing justifies the burden on defendants' beliefs. The Michigan Legislature has determined that the need for housing is so fundamental as to necessitate the passing of the Civil Rights Act. Its objective was to ensure that no one be denied equal access to housing on the basis of, among other things, their marital status. The state's need to provide equal access to such a fundamental need as housing outweighs defendants' religious beliefs that they should not rent to an unmarried couple.
The state does not require that the defendants violate their sincerely held religious beliefs. It requires only that, if they wish to participate in the real estate market by offering housing for rent, they must comply with the Civil Rights Act. The burden placed on the defendants' religious beliefs affects their commercial activities sooner than their beliefs. See Swanner, supra at 283. In United States v. Lee, the Supreme Court stated:
455 U.S. 252, 261; 102 S Ct 1051; 71 L Ed 2d 127 (1982).
When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.
Finally, defendants have provided no argument to convince us that the state could have accomplished its goal of equal access to housing by less obtrusive means. We have not identified a less obstrusive alternative to eradicate discrimination in real estate transactions.
The defendants' freedom to exercise their religion under the Michigan and federal constitutions is not violated by requiring their compliance with the Civil Rights Act under the facts of this case.
IV. CONCLUSION
The defendants readily admit that they would have rented their housing accommodations to plaintiffs had plaintiffs been married to one another. Marital status is defined in the context of the presence or absence of marriage. Thus, the defendants' refusal to rent their apartments to plaintiffs solely because they are unmarried constituted marital status discrimination in violation of the Civil Rights Act. The act protects unmarried cohabitants against this housing discrimination.
The United States Supreme Court, in Trafficante v. Metropolitan Life Ins Co, stated that eradicating discrimination in housing is of the highest priority. Our holding is consistent with that laudable goal.
409 U.S. 205, 211; 93 S Ct 364; 34 L Ed 2d 415 (1972).
Even assuming that the defendants' beliefs are sincerely held and religiously based and that the Civil Rights Act imposes a burden on those beliefs, defendants' religious freedom rights have not been violated. A compelling state interest in eradicating discrimination in real estate transactions justifies the burden on their beliefs. In addition, a less obtrusive form of regulation has not been shown to be available to the state.
We reverse the decision of the Court of Appeals. Since defendants admitted that they would have rented to plaintiffs if plaintiffs had been married to one another, we determine that summary disposition in plaintiffs' favor is appropriate. We remand this case to the circuit court for entry of an order granting summary disposition in favor of plaintiffs and a determination of damages.
MALLETT, C.J., and BRICKLEY and CAVANAGH, JJ., concurred with KELLY, J.
The pertinent language of the statute precludes discrimination on the basis of marital status. There is no factual dispute that the defendants declined to rent their premises because the male and female plaintiffs were unmarried. Under these facts, the relevant "inquiry is if one is married. . . ." Miller v. C A Muer Corp, 420 Mich. 355, 362; 362 N.W.2d 650 (1984).
Black's Law Dictionary (6th ed), defines marital as "[r]elating to, or connected with the status of marriage; pertaining to a husband; incident to a husband." "Status" means "[s]tanding, state or condition, social position. The legal relation of individual to the rest of the community. The rights, duties, capacities and incapacities which determine a person to a given class. A legal personal relationship, not temporary in its nature nor terminable at the mere will of the parties, with which third persons and the state are concerned." It would appear that "marital status," which is not otherwise defined in the pertinent portion of the statute, MCL 37.2502 (1); MSA 3.548(502)(1) refers to the status of being married. It follows logically that the term marital status, like marital communications and marital deductions, does not encompass the "status" of being an unmarried cohabitating couple.
Cohabitation is defined in Black's Dictionary, supra, as "[t]o live together as husband and wife." In Dane Co v. Norman, 174 Wis.2d 683, 685; 497 N.W.2d 714 (1993), the Wisconsin Supreme Court held that living together is conduct, not status.
The majority correctly notes that California, Alaska, and Massachusetts have found that marital status carries the meaning of both married and unmarried. In my view, the language of Michigan's statute, which is the best evidence of the Legislature's intent, does not support this conclusion. However, even if the term were deemed ambiguous, the public policy embodied in statutes criminalizing cohabitation, MCL 750.335; MSA 28.567, and renouncing common-law marriage, MCL 551.2; MSA 25.2 refute the claim that the Michigan Legislature intends to guarantee access to housing to individuals who choose to cohabit with persons of the opposite sex. Other courts addressing the issue have concluded that retention of "fornication statute," or the repeal by statute of common-law marriages, evidence a public policy inconsistent with defining marital status to encompass cohabitation. State v. French, 460 N.W.2d 2 (Minn, 1990); Mister v. ARK Partnership, 197 Ill. App.3d 105; 553 N.E.2d 1152 (1990). See also Jasniowski v. Rushing, 287 Ill. App.3d 665; 678 N.E.2d 743 (1997) ( Mister was held to be no longer controlling in light of the decriminalization of cohabitation by Illinois Public Act 86-490, effective January 1, 1990).
The public policy of this state disfavors the grant of mutually enforceable property rights to knowingly unmarried cohabitants. Carnes v. Sheldon, 109 Mich. App. 204; 311 N.W.2d 747 (1981) (accord RILEY, J.), Featherston v. Steinhoff, 226 Mich. App. 584; 575 N.W.2d 6 (1997) (CORRIGAN, C.J.).
The Legislature has not repealed the prohibition against cohabitation. Contrary to the majority's implication, the fact that a criminal statute has not been successfully prosecuted does not somehow render the prohibited conduct legal or the criminal statute void. Not only has the Legislature failed to repeal this statute, first enacted in 1846, but, indeed, by the amendment of one word in 1931, the Legislature apparently sought to make prosecution under the statute simpler. 1931 PA 328 altered the opening sentence from "If any man and woman" to "[a]ny man or woman. . . ." (Emphasis added.) The effect of this amendment was to overrule earlier case law, see, e.g., Delany v. People, 10 Mich. 241 (1862); People v. Frye, 248 Mich. 678, 680; 227 N.W. 748 (1929), which held that the pre-1931 statutory language created an exception to the general rule that conviction or acquittal of one defendant has no legal effect on the status of other defendants. It now appears that the statute can be enforced against either or both individuals who cohabit and associate lewdly and lasciviously with a person of the opposite sex. It is immaterial whether "there is insufficient evidence," ante at 141, that plaintiffs in this case intended to engage in lewd and lascivious behavior. What is material is that it is the declared public policy of the state to discourage such behavior. Indeed, in enacting the criminal sexual conduct law, 1974 PA 266, the Legislature repealed several proscriptions involving sexual behavior, MCL 750.333, 750.336, and 750.339-750.342; MSA 28.565, 28.568, and 28.571-28.574, but did not repeal the prohibition against "lewd and lascivious" cohabitation.
Unmarried cohabitation is far more common today than it was when the term "marital status" first appeared in the forerunner of the present statute. However, as observed by the Illinois Supreme Court in the context of rejecting the creation of legally enforceable property rights from nonmarital cohabitation:
The legislative analysis of the amendment to the Fair Housing Act of 1968, which added marital status, observes that the housing problem was particularly acute for single-parent families with children. Senate Legislative Analysis, SB 13, September 22, 1975. Nothing in the analysis suggests a perception of need for housing for cohabitation.
There are major public policy questions involved in determining whether, under what circumstances, and to what extent it is desirable to accord some type of legal status to claims arising from such relationships. Of substantially greater importance than the rights of the immediate parties is the impact of such recognition upon our society and the institution of marriage. [ Hewitt v. Hewitt, 77 Ill.2d 49, 58; 394 N.E.2d 1204 (1979).]
This is a paradigm of an issue of magnitude requiring legislative evaluation and resolution of competing factors, such as the legal status of unmarried cohabitation, the need for access to housing, and the free exercise of religion. The Legislature can define marital status to include cohabitants. The Legislature has not done so, and we should not do so by judicial fiat. To ascribe to the Legislature an intention to burden a religious belief in the interest of protecting the conduct at issue requires a suspension of disbelief that is beyond me.
Further, if the majority insists on addressing the free exercise of religion under the federal and state constitutions, it should first remand to allow the parties an opportunity to thoroughly argue the issues and the lower courts to address the issue. A remand on the constitutional issue seems particularly prudent, given the fact that, as of yet, this Court has declined to determine whether the Michigan Constitution affords greater protection to the free exercise of religion than that afforded by the First Amendment as interpreted by Employment Div, Oregon Dep't of Human Resources v. Smith, 494 U.S. 872, 884; 110 S Ct 1596; 108 L Ed 2d 876 (1990). See People v. DeJonge (After Remand), 442 Mich. 266, 279, n 27; 501 N.W.2d 127 (1993).
The majority does not acknowledge the heavy presumption against repeal by implication. See Wayne Co Prosecutor v. Dep't of Corrections, 451 Mich. 569, 576, 548 N.W.2d 900 (1996). In House Speaker v. State Administrative Bd, 441 Mich. 547, 562; 495 N.W.2d 539 (1993), we stated that "`[r]epeals by implication are not favored and will not be indulged in if there is any other reasonable construction. The intent to repeal must very clearly appear, and courts will not hold to a repeal if they can find reasonable ground to hold the contrary.'" (Quoting Attorney General ex rel Owen v. Joyce, 233 Mich. 619, 621; 207 N.W. 863 (1926) [citations omitted].)
For these reasons, I dissent.
WEAVER, J., concurred with BOYLE, J.
I agree with the Court of Appeals and with the dissenting opinion of Justice BOYLE.
I write separately to add that the majority misconstrues People v. Davis, 294 Mich. 499; 293 N.W. 734 (1940), and People v. June, 294 Mich. 681; 293 N.W. 906 (1940), claiming that those cases held "that the lewd and lascivious nature of the relationships had not been shown, although the prosecutor had provided proof that the men were cohabitating with each other's wives." Ante, p ___. The majority implies that those cases held that some conduct beyond cohabitating while sharing sexual relations is necessary evidence under the statute. However, these cases stand for nothing more than the corpus delicti of a charged offense may not be proved by extrajudicial, unsupported confessions. Davis, supra, p 502; June, supra, P 683. The only evidence in Davis and June unequivocally suggesting the defendants were having sexual relations out of wedlock and while living together was one of the defendant's confessions to a local newspaper reporter. The Court noted that the prosecution lacked evidence beyond "the `confession' and a generous sprinkling of conjecture and imagination. . . ." Davis, supra, p 502. Specifically, the Court found lacking the following evidence necessary to the charge of lewd and lascivious association and cohabitation: "that the defendants had marital relations with each other, or that their conduct in public was anti-social in character." Id., p 501.
TAYLOR, J., took no part in the decision of this case.