By Kathleen McDonough

Under North Dakota's 118-year-old cohabitation ban, it was considered a sex crime for two unmarried persons to live together. March 2007 saw a successful repeal of the anti-cohabitation statute, which had been on the books relatively unchanged since the state's inception in 1889.

North Dakota's move towards legal protection for unmarried households started over a decade ago. In 1997, with the passage of the North Dakota Human Rights Act (N.D.C.C. Chap. 14-02.4), the state legislature established a Human Rights Division responsible for the enforcement of the new anti-discrimination law in matters of employment, housing, public accommodations, public services and credit transactions. Soon after, the legislative assembly also passed the North Dakota Fair Housing Act (N.D.C.C. Chap. 14-02.5), progressive legislation that, unlike the Federal Fair Housing Act, explicitly designates marital status as a protected class under the law.

There is an obvious conflict between the long-standing cohabitation ban and the human rights and fair housing laws: which laws take precedent when the legal code is self-contradictory? In 2001, the case of the North Dakota Fair Housing Council v. Peterson posed this very question to the state Supreme Court. The results were disappointing. In 1999, a then-unmarried couple, Robert and Patricia Kippen, had applied for rental housing in Fargo and had been denied by landlords David and Mary Peterson on the grounds that they were an unmarried couple seeking to cohabit. The Kippens sued, citing that the Petersons acted in violation of the North Dakota Human Rights Act. The Petersons countered that the Kippens were acting in violation of the cohabitation ban. Because of the inconsistency within the legal code, it seemed both parties were right.

The majority of the state Supreme Court ruled in favor of the Petersons, concluding that because of the cohabitation ban, "status with respect to marriage" could not be a protected class as outlined in the anti-discrimination statute. As a result, the provisions on marriage discrimination contained in the Human Rights Act and Fair Housing Act were rejected; they could not be enforced until the repeal of the cohabitation ban.

This case left unmarried and single North Dakotans in a legal black hole, without recourse to contest unfair housing practices. Although the text of each bill remained the same, the language of marital neutrality was only a vestige of legislative intent until the cohabitation ban was finally repealed this past March.

Senator Tracy Potter of Bismarck, North Dakota, the sponsor of the repeal bill, said about the incongruous enforcement of the cohabitation ban, "We're saying that we have optional laws, laws that we don't really mean. We shouldn't have laws like that."

Such legal discrepancies are not unique to North Dakota. Six other states - Florida, Michigan, Mississippi, North Carolina, Virginia and West Virginia - have similar anti-cohabitation statutes. All also have contradictory legislation on the books, and unpredictable enforcement similar to that which stirred North Dakota to repeal its ban. For example, in Florida, the 1992 Civil Rights Act included marital status as a protected class under its Fair Housing law and yet the state ban on cohabitation remained unchanged and can currently be invoked to annul such statutory provisions on marital neutrality. The American Civil Liberties Union (ACLU) has challenged West Virginia's cohabitation ban; the case is still pending.

In North Carolina, the ACLU won a case on behalf of Deborah Hobbs, who had lost her job as an emergency dispatcher because she was not married to her live-in partner. An NC state court ruled in her favor, finding the state's 202-year-old cohabitation ban to be unconstitutional. An entire year has passed since the 2006 court ruling and no legislative action has been taken to repeal the statute or enforce the court's judgment. In July 2007, a couple in Stanley, NC, emailed AtMP requesting help: they were being denied the right to live together. AtMP coordinated with the ACLU of North Carolina to provide sound advice for this couple; we also offered to support the ACLU's efforts towards legislative repeal of the ban.

Kathleen McDonough is a graduating senior at Hunter College.

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