JASNIOWSKI v. RUSHING

JUSTICE THEIS delivered the opinion of the court:

The plaintiffs, Ron Jasniowski (Jasniowski) and A. Avana Electric Motors, Inc. (Avana), appeal from the circuit court's final order on their petition for common law writ of certiorari. In the circuit court, the plaintiffs sought review of an order of the City of Chicago Commission on Human Relations (the Commission) granting relief in favor of the respondent, Benson Rushing (Rushing), on the grounds that they had discriminated against him because of his marital status in violation of the Fair Housing Regulations of the City of Chicago. Chicago Municipal Code § 5-8-010 et seq. (1990). Specifically, plaintiffs would not rent an apartment to Rushing because he and a woman named Mary Tews (Tews) planned to live in the apartment together but were not married. The circuit court affirmed the decision of the Commission. The plaintiffs now seek appellate review pursuant to Supreme Court Rule 303(a)(1). 155 Ill.2d R. 303(a)(1). We affirm the decision of the circuit court.

Avana is a secular, for-profit, subchapter S corporation engaged in the business of repairing and selling electric motors. Jasniowski is Avana's president, sole officer, and sole shareholder. Jasniowski's mother, Martha Jasniowski, owns a building comprised of both commercial space and a residential apartment. Martha Jasniowski leases the entire building to Avana. The lease between Avana and Martha Jasniowski allows Avana to occupy the building and authorizes Avana to sublease the apartment. The lease does not contain any religious restrictions regarding sublessees.

In June 1992, Avana publicly advertised the apartment for rent in Chicago, Illinois. Rushing and Tews submitted an application to lease the apartment, indicating they were married. Jasniowski initially decided to rent them the apartment. Rushing and Tews, however, were unable to produce the requested proof of marriage and they decided to pursue other housing. Although Jasniowski did not refuse to rent to Rushing and Tews directly, he admits that he would not have leased the apartment to them because they were not married. He maintains that renting to an unmarried couple would conflict with his religious beliefs against sexual relations outside of marriage. He further contends that his religious beliefs render him a "steward" over his property and, therefore, he must manage his property according to his understanding of the Bible.

On July 23, 1992, Rushing filed a complaint with the City of Chicago Commission on Human Relations, alleging that Jasniowski had discriminated against him because of his marital status. At the prehearing conference, the hearing officer properly allowed Rushing's oral motion to add Avana as a respondent. After a full hearing on the merits, the Commission found that Jasniowski held sincere religious beliefs and that he refused to rent the apartment to Rushing and Tews because they were not married but planned to live there together. The Commission determined that Jasniowski's refusal to rent to Rushing constituted discrimination on the basis of marital status in violation of the Fair Housing Regulations of the City of Chicago. Chicago Municipal Code § 5-8-010 et seq. (1990). The Commission rejected Jasniowski's claim that the ordinance burdens his free exercise of religion. The Commission awarded Rushing damages and attorney fees totaling approximately $14,000. The circuit court affirmed the Commission's decision.

The first issue on appeal is whether the Chicago fair housing regulations, which prohibit housing discrimination on the basis of marital status, prevent a person from refusing to rent an apartment to an unmarried, cohabiting couple. Five state supreme courts have addressed this question in one form or another. See Swanner v. Anchorage Equal Rights Comm'n, 874 P.2d 274 (Alaska 1994), cert. denied, ___ U.S. ___, 130 L.Ed.2d 368, 115 S.Ct. 460 (1994); Smith v. Fair Employment Housing Comm'n, 12 Cal.4th 1143, 913 P.2d 909, 51 Cal.Rptr.2d 700 (1996); Attorney General v. Desilets, 418 Mass. 316, 636 N.E.2d 233 (1994); State by Cooper v. French, 460 N.W.2d 2 (Minn. 1990); County of Dane v. Norman, 174 Wis.2d 683, 497 N.W.2d 714 (1993).

A threshold issue is how to define discrimination against an unmarried, cohabiting couple. We agree that the discrimination at issue is based on marital status, not the conduct of the prospective tenants. Accord Swanner v. Anchorage Equal Rights Comm'n, 874 P.2d 274, 278 n.4 (Alaska 1994); Attorney General v. Desilets, 418 Mass. 316, 320 n.4, 636 N.E.2d 233, 235 n.4 (1994). Assuming both married and unmarried couples engage in the same conduct, the only distinction is that one couple has the status of "married" whereas the other couple is "unmarried." Jasniowski's religious objection is that allowing a man and woman to cohabit as an unmarried couple promotes fornication. We accept the Commission's factual determinations that Jasniowski's religious beliefs were sincerely held and that Rushing and Tews constituted an unmarried, cohabiting couple.

Thus, the question is whether the Chicago fair housing regulations (Chicago ordinance or ordinance) prevent Jasniowski from refusing to rent the apartment to an unmarried, cohabiting couple. Section 5-8-030C of the ordinance provides that "[i]t shall be an unfair housing practice and unlawful for any owner, lessee, [or] sublessee * * * [t]o refuse to sell, lease or rent, any real estate for residential purposes within the city of Chicago because of * * * marital status * * * of the proposed buyer or renter." Chicago Municipal Code § 5-8-030C (1990). Section 5-8-040 explains that "marital status" has the same meaning as described in chapter 2-160 of the Chicago human rights ordinance, which defines "[m]arital status" as "the legal status of being single, married, divorced, separated or widowed." Chicago Municipal Code § 2-160-020(f) (1990).

The Commission determined that "marital status" in the ordinance extends housing discrimination protection to unmarried cohabiting couples and that Jasniowski's refusal to rent to Rushing constituted a violation of the ordinance. Because the Commission is the agency charged with enforcing the ordinance, its determination as to the intent and scope of the ordinance is entitled to substantial deference. Boaden v. Department of Law Enforcement, 171 Ill.2d 230, 239, 664 N.E.2d 61, 65 (1996).

When an ordinance is clear, a court is bound by its plain language and meaning. Solich v. George Anna Portes Cancer Prevention Center of Chicago, Inc., 158 Ill.2d 76, 81, 630 N.E.2d 820, 822 (1994). Jasniowski argues that "marital status" protects individuals who are married, single, separated, divorced, or widowed, but does not extend protection to unmarried couples. Conversely, Rushing and the City of Chicago argue that renting to a man and a woman who are married, while refusing to rent to a man and a woman who are unmarried, by definition, constitutes "marital status" discrimination. Because the meaning of "marital status" is unclear, we look to other indicia of legislative intent to determine the statutory meaning. From this review, we have no doubt that the Chicago city council intended to protect unmarried cohabiting couples from housing discrimination within the City of Chicago.

Remedial legislation generally is afforded a liberal interpretation. Tandy Corp. v. Human Rights Comm'n, 264 Ill. App.3d 828, 832, 637 N.E.2d 725, 728 (1994). Chicago passed its first fair housing ordinance in 1963 to prohibit housing discrimination based on race, color, religion, national origin, or ancestry. Chicago Municipal Code ch. 198.7-B (eff. September 11, 1963). Illinois passed the Illinois Human Rights Act to protect against unlawful discrimination in employment, real property transactions, access to financial credit, and public accommodations. Pub. Act 81-1216, eff. July 1, 1980.

Over the years, both the Chicago ordinance and the Illinois Human Rights Act have been broadened to protect a wide array of groups subject to potential housing discrimination. The Chicago ordinance assures "full and equal" housing opportunity to all residents of Chicago and protects the following categories from discrimination: "race, color, sex, age, religion, disability, national origin, ancestry, sexual orientation, marital status, parental status, military discharge status or source of income." (Emphasis added.) Chicago Municipal Code § 5-8-010 (1990).

The breadth of categories included in the ordinance indicates that Chicago intended to provide universal protection from housing discrimination to all its residents, in whatever combination. Inclusion of sexual orientation as a protected category is particularly enlightening. The inclusion of sexual orientation implies that the city council understood unmarried cohabitants to be protected. Chicago Municipal Code ch. 198.7-B (amended December 21, 1988, to include, inter alia, sexual orientation); County of Dane v. Norman, 174 Wis.2d 683, 693, 497 N.W.2d 714, 722 (1993) (Heffernan, C.J., dissenting). Thus, we agree with the Commission that under section 5-8-030 of the Chicago ordinance, the City of Chicago extended housing discrimination protection to unmarried, cohabiting couples.

The next consideration is whether Chicago had the authority to enact such measures. We have no difficulty finding that Chicago had the power to pass the ordinance under both its constitutional home rule authority and its statutory authority as granted by the Illinois legislature. Under the Illinois Constitution, the City of Chicago is a home rule unit, giving it the authority to "exercise any power and perform any function pertaining to its government and affairs including, but not limited to, the power to regulate for the protection of the public health, safety, morals and welfare; to license; to tax; and to incur debt." Ill. Const. 1970, art. VII, § 6(a). In addition, the Illinois Human Rights Act allows municipalities to pass antidiscrimination measures broader than Illinois law. Ill. Rev. Stat. 1991, ch. 68, par. 7-108(A). Thus, the City of Chicago had the power to adopt an expansive housing ordinance.

The more complex question is whether Chicago's antidiscrimination housing provision conflicts within any larger Illinois precedent or public policy. Jasniowski argues that this court is bound by Mister v. A.R.K. Partnership, 197 Ill. App.3d 105, 553 N.E.2d 1152 (1990), which held that the prohibition against marital status discrimination in the Illinois Human Rights Act did not apply to a landlord's refusal to lease an apartment to unmarried individuals of the opposite sex. After finding the meaning of "marital status" discrimination in the Illinois Human Rights Act ambiguous, the court determined that extending protection to unmarried couples would conflict with the Illinois antifornication statute and the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1989, ch. 40, par. 101 et seq.). Mister, 197 Ill. App.3d at 118, 553 N.E.2d at 1160. Jasniowski argues that because the definition of "marital status" in the Chicago ordinance contains the same language as in the Illinois Human Rights Act, the Mister decision controls.

First, we find that Mister is not controlling. Mister relied on the Illinois antifornication statute to construe public policy. In 1990, however, the Illinois legislature decriminalized cohabitation. Pub. Act 86-490, eff. January 1, 1990 (amending Ill. Rev. Stat. 1989, ch. 38, par. 11-8). Thus, Mister is distinguishable based on its reliance on the criminal nature of cohabitation. We also reject Jasniowski's argument that the Chicago ordinance conflicts with Chicago's fornication ordinance, which is aimed at prohibiting houses of ill-fame or assignation. See Chicago Municipal Code § 8-8-010 (1990).

More importantly, the Chicago ordinance does not conflict with Illinois public policy. By express authority from the Illinois legislature, the Chicago ordinance is legitimately broader than the Illinois Human Rights Act, which does not include sexual orientation, parental status, or source of income as protected categories. Ill. Rev. Stat. 1991, ch. 68, pars. 1-103(Q), 7-108. We also note the Illinois Domestic Violence Act protects persons abused by a family or household member. 750 ILCS 60/201(a)(i) (West 1992).

Additionally, the Chicago ordinance does not conflict with prior Illinois cases disapproving of cohabitation for the elevated purposes of granting marital property rights and child custody. Our supreme court has declined to apply marital property laws to cohabitants ( Hewitt v. Hewitt, 77 Ill.2d 49, 394 N.E.2d 1204 (1979)) and has modified child custody based on a parent's open and continuing cohabitation ( Jarrett v. Jarrett, 78 Ill.2d 337, 345, 400 N.E.2d 421, 423-24 (1979)). These cases, however, do not defeat the basic aim of the Chicago ordinance. The State may legitimately promote marriage when the issue concerns the existence of legal rights specifically emanating from the institution of marriage. In contrast, the aim of the Chicago ordinance is fairness — to promote "full and equal" housing opportunity to all Chicago residents. Accordingly, the scope of the Chicago housing ordinance does not interfere with the scope of Illinois marital rights.

Likewise, the Illinois Supreme Court's recent decision narrowly interpreting "marital status" in the Illinois Human Rights Act does not compel a different result. Boaden v. Department of Law Enforcement, 171 Ill.2d 230, 664 N.E.2d 61 (1996), concerned whether the Illinois Human Rights Act's prohibition against marital status discrimination prohibits no-spouse policies in the workplace. The supreme court upheld no-spouse policies, construing "marital status" as defined in the Illinois Human Rights Act to refer only to the status of an individual. Boaden, 171 Ill.2d at 238, 664 N.E.2d at 65.

We do not find any inconsistency between our opinion today and the employment-based holding in Boaden. The Chicago ordinance is a remedial provision, designed to assure housing access to all residents of Chicago. The Chicago ordinance is written more broadly than the Illinois Human Rights Act. Moreover, the Illinois Constitution also supports the importance of basic housing availability. Ill. Const. 1970, art. I, §§ 17 through 19. In short, the City of Chicago had the authority and intended to adopt measures to protect all residents of Chicago from housing discrimination. This legislation does not conflict with Illinois public policy and is not defeated by any variant interpretation of the same terms in the Illinois Human Rights Act.

Given that the Chicago ordinance prohibits housing discrimination against unmarried, cohabiting couples, the next question is whether Jasniowski may challenge its enforcement as a burden upon his free exercise of religion. In 1990, the United States Supreme Court retooled the test for determining whether a particular law unconstitutionally burdens a person's free exercise of religion. Employment Division, Department of Human Resources v. Smith, 494 U.S. 872, 108 L.Ed.2d 876, 110 S.Ct. 1595 (1990). Under the Smith rationale, "a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice." Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531, 124 L.Ed.2d 472, 489, 113 S.Ct. 2217, 2226 (1993).

We need not reach the constitutional issue, however, because Congress enacted the Religious Freedom Restoration Act of 1993 to restore the pre- Smith constitutional standard for religious freedom. 42 U.S.C. § 2000bb (Supp. 1993) (Restoration Act). The Restoration Act applies to all federal and state law (including subdivisions of a state) "whether adopted before or after November 16, 1993." 42 U.S.C. §§ 2000bb-2(1), 2000bb-3(a) (Supp. 1993). Because a congressional act is presumed constitutional until otherwise determined, we apply the analysis set forth in the Act. Zobrest v. Catalina Foothills School District, 509 U.S. 1, 7, 125 L.Ed.2d 1, 9, 113 S.Ct. 2462, 2465-66 (1993). We note that the United States Supreme Court has granted certiorari to address the validity of the Restoration Act. Flores v. City of Boerne, 73 F.3d 1352 (5th Cir. 1996), cert. granted, ___ U.S. ___, 136 L.Ed.2d 212, 117 S.Ct. 293 (1996). Until the Court resolves that issue, if the Restoration Act requires reversal of the Commission's decision, the result is based on the supremacy clause of the United States Constitution. U.S. Const., art. VI, cl. 2.

The Religious Freedom Restoration Act codifies the pre- Smith Supreme Court compelling-interest test: "Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability," unless the government "demonstrates that application of the burden to the person — (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest." 42 U.S.C. §§ 2000bb-1(a), (b) (1993). Section 1(c) provides for judicial relief and explains that standing to assert a claim or defense under the Restoration Act is governed by the general rules of standing under article III of the United States Constitution. 42 U.S.C. § 2000bb-1(c) (Supp. 1993).

We first address Jasniowski's standing to assert a constitutional free-exercise-of-religion defense. Martha Jasniowski owns the property. Avana, the corporation, leases the building and has authority to sublet the apartment. Jasniowski is Avana's president, sole officer, and sole shareholder. Avana and Jasniowski are interchangeable. The nexus between the sole proprietor and his business is sufficiently compelling such that Avana can raise a free-exercise challenge asserting the free-exercise rights of its sole corporate officer and shareholder, Jasniowski. See E.E.O.C. v. Townley Engineering Manufacturing Co., 859 F.2d 610, 611-12 (9th Cir. 1988). We concur in the logic of the Commission when it stated:

"To deprive Jasniowski of his ability to raise a religious objection to the Ordinance because he chose to incorporate his sole proprietorship is to make the assertion of a constitutional right turn upon a business choice which was undoubtedly made in ignorance of the fact that a First Amendment right was thereby being waived." Rushing v. Jasniowski, Chicago Commission on Human Relations Report No. 92-H-127 (May 18, 1994).

In this limited context, and based on the facts before us, we find that Avana may assert the religious beliefs of its alter ego, Jasniowski.

Moreover, we do not draw a distinction between a property owner versus a sublessor for purposes of the free-exercise analysis in this particular case. As lessee, Avana retains exclusive possession of the building. Under the lease, Avana is allowed to sublease the residential apartment. If the owner wanted to lease the property and assert a free-exercise defense, she would be entitled to do so. Avana is not raising any rights greater than those of the original owner. Thus, Jasniowski's free-exercise challenge is not defeated by the corporate entity or its legal relation as a sublessor in this circumstance.

We now consider whether the Chicago ordinance places a substantial burden on Jasniowski's free exercise of religion. The Restoration Act does not define "substantial burden." In fact, whether a "substantial burden" may be quantified is at the heart of the current constitutional religious debate. Nevertheless, based on Wisconsin v. Yoder, Sherbert v. Verner, and their progeny, the hallmark of a substantial burden on one's free exercise of religion is the coercive choice of either abandoning one's religious convictions or complying with the governmental regulation. Wisconsin v. Yoder, 406 U.S. 205, 217-18, 32 L.Ed.2d 15, 26, 92 S.Ct. 1526, 1534 (1972); Sherbert v. Verner, 374 U.S. 398, 404, 10 L.Ed.2d 965, 970, 83 S.Ct. 1790, 1794 (1963); see also Thomas v. Review Board of Indiana Employment Security Division, 450 U.S. 707, 717-18, 67 L.Ed.2d 624, 633-34, 101 S.Ct. 1425, 1432 (1981). Under this standard, enforcement of the Chicago ordinance against Jasniowski imposes a substantial burden on the free exercise of his religion. Through Avana, Jasniowski sublets the residential apartment. Jasniowski believes renting the apartment to an unmarried, cohabiting couple violates his religious beliefs. The Chicago ordinance requires him to do so, thereby subjecting him to penalties and costs for noncompliance. Jasniowski is thus forced to choose between his religious convictions and compliance with the Chicago housing ordinance.

We emphasize that the substantial burden is defined by Jasniowski's "either-or" choice to comply with the ordinance or adhere to his religious convictions, not merely by its economic impact. Thus, the burden is not measured in terms of the costs imposed for violating the ordinance. Nor is the burden defensible by the suggestion that Jasniowski simply may surrender his right to lease, rent, and derive income from the property in order not to violate his religious beliefs. We likewise reject the argument that Jasniowski's consistent religious ethic is subject to blanket submission upon his entry into the marketplace. Attempting to earn a living does not require an individual to sacrifice all religious precepts. United States v. Lee, 455 U.S. 252, 261, 71 L.Ed.2d 127, 134-35, 102 S.Ct. 1051, 1057 (1982) (holding that the government had a compelling interest in maintaining the tax system, not that the employer had abdicated his religious beliefs upon entry into the marketplace).

Equally unavailing is any notion that the burden is de minimis. As noted by Justice Douglas in his concurrence in Sherbert: "The result turns not on the degree of injury, which may indeed be nonexistent by ordinary standards. The harm is the interference with the individual's scruples or conscience — an important area of privacy which the First Amendment fences off from government." Sherbert v. Verner, 374 U.S. at 412, 10 L.Ed.2d at 975, 83 S.Ct. at 1798 (Douglas, J., concurring). Free exercise of Jasniowski's religious beliefs conflicts with Chicago's mandate that he rent the apartment indiscriminately. We find that the Chicago housing ordinance's prohibition against marital status discrimination substantially burdens the free exercise of Jasniowski's sincere religious beliefs.

Thus, it becomes incumbent upon the City of Chicago to demonstrate that enforcing the ordinance against Jasniowski furthers a compelling interest and is the least restrictive means of furthering that compelling interest. 42 U.S.C. § 2000bb-1(b)(2) (Supp. 1993). The Commission did not reach the compelling-interest issue. The circuit court, however, found that even assuming Jasniowski was substantially burdened, the government had a compelling interest.

The City of Chicago has an interest in prohibiting housing discrimination generally. For free-exercise analysis, however, the courts consistently explain that the state's interest must be narrowly defined. Thomas, 450 U.S. at 719, 67 L. Ed. 2d at 634, 101 S.Ct. at 1432; Yoder, 406 U.S. at 228-29, 32 L.Ed.2d at 32, 92 S.Ct. at 1540. Thus, the narrower question is whether specifically prohibiting housing discrimination against unmarried cohabiting couples is a compelling governmental interest. See Attorney General v. Desilets, 418 Mass. 316, 325, 636 N.E.2d 233, 238 (1994).

Again, the Restoration Act does not define a compelling governmental interest. Since Yoder and Sherbert, the Court has found a compelling interest in maintaining the tax system ( Hernandez v. Commissioner of Internal Revenue, 490 U.S. 680, 699-70, 104 L.Ed.2d 766, 787, 109 S.Ct. 2136, 2149 (1989)); maintaining the Social Security system ( United States v. Lee, 455 U.S. 252, 71 L.Ed.2d 127, 102 S.Ct. 1051 (1982)); upholding military conscription laws ( Gillette v. United States, 401 U.S. 437, 461-62, 473, 28 L. Ed. 2d 168, 187, 194, 91 S.Ct. 828, 842-43, 848 (1971) (Douglas, J., dissenting); and providing a uniform day of rest ( Braunfeld v. Brown, 366 U.S. 599, 608-09, 6 L.Ed. 2d 563, 569-70, 81 S.Ct. 1144, 1148-49 (1961)). See Employment Division, Department of Human Resources v. Smith, 494 U.S. 872, 896, 108 L.Ed.2d 876, 897, 110 S. Ct. 1595, 1609 (1990) (O'Connor, J., concurring, joined by Brennan, Marshall, and Blackman, JJ., in part). In contrast, the Court has declined to find a compelling interest in only limited contexts: the school attendance of Amish children to age 16 ( Yoder, 406 U.S. at 228-29, 32 L.Ed.2d at 32, 92 S.Ct. at 1540) and prevention of fraudulent unemployment benefit claims (see Hobbie v. Unemployment Appeals Comm'n, 480 U.S. 136, 94 L.Ed.2d 190, 107 S. Ct. 1046 (1987); Thomas, 450 U.S. 707, 67 L.Ed.2d 624, 101 S.Ct. 1425 (1981); Sherbert, 374 U.S. 398, 10 L.Ed.2d 965, 83 S.Ct. 1790 (1963)).

Under Illinois law, determining whether Chicago has a compelling interest is analogous to the balancing required in church zoning cases. Enacted pursuant to the police power of the State, zoning laws effect a legitimate restraint on a person's use of his property if they substantially promote public health, safety, morals, or the general welfare. Columbus Park Congregation of Jehovah's Witnesses, Inc. v. Board of Appeals, 25 Ill.2d 65, 70-71, 182 N.E.2d 722, 725 (1962). And while the location of churches implicates freedom of religion and free exercise, government can regulate their location if it demonstrates a substantial interest in a particular case. Columbus Park, 25 Ill.2d at 71, 182 N.E.2d at 725. Implicit in the government's police power to promote the general health, safety, and welfare of the community is a recognition of the rights of all members of society.

Likewise, in this case, the City of Chicago's concern in prohibiting housing discrimination against unmarried, cohabiting couples promotes the universal interest of Chicago residents in available housing. The policy statement of the Chicago ordinance secures "full and equal opportunity to all residents of the city to obtain fair and adequate housing for themselves and their families in the city of Chicago without discrimination." Discrimination is then broadly defined to protect all of the following categories: "race, color, sex, age, religion, disability, national origin, ancestry, sexual orientation, marital status, parental status, military discharge status or source of income." Chicago Municipal Code § 5-8-010 (1990).

Moreover, what distinguishes this situation from other free-exercise cases is the direct impact of Jasniowski's religious objection on the interests of third parties. See generally M. McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1464 (1990); M. McConnell, Free Exercise Revisionism and the Smith Decision, 57 U. Chi. L. Rev. 1109, 1145-46 (1990). Specifically at issue is the effect of Jasniowski's free exercise on Benson Rushing's "full and equal" opportunity for housing in the City of Chicago.

Adding the interests of the prospective tenant Rushing changes the equation. The balance thus becomes Jasniowski's free exercise as weighed against the City of Chicago's general interest in preventing housing discrimination and Rushing's individual interest in access to housing. While the weight of the interests is admittedly close, the impact of Jasniowski's religious objection on third parties tips the balance in favor of the government. Thus, we find that the City of Chicago has a compelling interest in prohibiting housing discrimination against unmarried, cohabiting couples. Chicago's interest in prohibiting this specific housing discrimination is integral to its overall interest in prohibiting all housing discrimination. Accordingly, universal enforcement, including enforcement against Jasniowski, is the least restrictive means available. 42 U.S.C. § 2000bb(b)(2) (Supp. 1993). Accord Lee, 455 U.S. at 260, 71 L.Ed.2d at 134, 102 S.Ct. at 1056-57.

Because our decision is based on application of the Religious Freedom Restoration Act, we decline to address whether the Chicago ordinance violates the Illinois Constitution. People v. McDaniel, 164 Ill.2d 173, 180, 647 N.E.2d 266, 269 (1995). The Illinois Supreme Court has held that like provisions in the Illinois and federal constitutions are to be similarly construed unless the drafters indicated a contrary intent. People v. Tisler, 103 Ill.2d 226, 243, 469 N.E.2d 147, 156 (1984). Because the Illinois Supreme Court, however, has not considered the scope of the Illinois Constitution in light of the United States Supreme Court's decision in Smith, we decline to consider the constitutionality of the Chicago ordinance under the Illinois Constitution.

In conclusion, the City of Chicago intended to enact a broad housing discrimination ordinance that would include in its protection unmarried, cohabiting couples. Under the Religious Freedom Restoration Act, Jasniowski has demonstrated that enforcement of the Chicago ordinance against him imposes a substantial burden on his free exercise of religion. We conclude, however, that the City's compelling interest in eliminating all forms of housing discrimination, including that against unmarried, cohabiting couples, defeats Jasniowski's claim to a free exercise exemption. Thus, the Commission properly enforced the ordinance against Jasniowski and was authorized to award damages, emotional distress, and attorney fees to Rushing. Atkins v. City of Chicago Comm'n on Human Relations ex rel. Lawrence, 281 Ill. App.3d 1066, 1076-77, 667 N.E.2d 664, 670-71 (1996). Accordingly, we affirm the decisions of the circuit court and the City of Chicago Commission on Human Relations.

Affirmed.

CAHILL, J., concurs.