Swanner v. Anchorage Equal Rights Com'n, No. S-5362

CourtSupreme Court of Alaska (US)
Writing for the CourtBefore MOORE; Before MOORE; PER CURIAM; MOORE; MOORE
Citation874 P.2d 274
Docket NumberNo. S-5362
Decision Date13 May 1994
PartiesTom SWANNER, d/b/a Whitehall Properties, Appellant, v. ANCHORAGE EQUAL RIGHTS COMMISSION, Paul L. Connerty, Executive Director, ex rel. Joseph Bowles, William F. Harper, and Dee Moose, Appellees.

Page 274

874 P.2d 274
Tom SWANNER, d/b/a Whitehall Properties, Appellant,
v.
ANCHORAGE EQUAL RIGHTS COMMISSION, Paul L. Connerty,
Executive Director, ex rel. Joseph Bowles, William
F. Harper, and Dee Moose, Appellees.
No. S-5362.
Supreme Court of Alaska.
May 13, 1994.

Page 276

Stephen S. DeLisio, Staley DeLisio & Cook, Anchorage, for appellant.

Constance E. Livsey, Faulkner, Banfield, Doogan & Holmes, Anchorage, for appellees.

Before MOORE, C.J., and RABINOWITZ, MATTHEWS and COMPTON, JJ.

On consideration of the petition for rehearing, filed on February 25, 1994, and the response, filed on March 14, 1994,

IT IS ORDERED:

1. The petition for rehearing is GRANTED.

2. The majority opinion, Opinion No. 4049, published on February 11, 1994, is WITHDRAWN.

3. Opinion No. 4081 is issued on this date in its place.

4. The major modifications in the opinion follow:

(c) The modified majority opinion on rehearing will be issued as a Per Curiam opinion since former Justice Burke did not participate in the court's consideration of the petition for rehearing.

Entered by direction of the Court at Anchorage, Alaska, on May 13, 1994.

Before MOORE, C.J., and RABINOWITZ, MATTHEWS and COMPTON, JJ.

OPINION

PER CURIAM.

Swanner, d/b/a Whitehall Properties, appealed the superior court's decision which affirmed the Anchorage Equal Rights Commission's (AERC) order that Swanner's policy against renting to unmarried couples constituted unlawful discrimination based on marital status. Swanner disputes the decision and contends that enforcing the applicable statute and municipal ordinance violates his constitutional right to free exercise of his religion under the United States and Alaska Constitutions. Swanner claims the AERC deprived him of due process by adopting the hearing examiner's recommended decision and proposed order without itself conducting an independent review of the case on its merits and by failing to notify him that it would do so.

We hold that Swanner discriminated against the potential tenants based on their marital status. We further hold that enforcing the fair housing laws does not deprive him of his right to free exercise of his religion. The proceedings of the AERC did not deprive Swanner of his right to due process of law. We affirm the AERC and superior court decisions.

I. FACTS AND PROCEEDINGS BELOW

Joseph Bowles, William F. Harper, and Dee Moose filed three separate complaints of marital status discrimination in the rental of real property in Anchorage. The complainants alleged that Tom Swanner, doing business as Whitehall Properties, violated municipal and state anti-discrimination laws, Anchorage Municipal Code (AMC) 5.20.020 and AS 18.80.240. Swanner refused to rent or allow inspection of residential properties after learning that each complainant intended

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to live with a member of the opposite sex to whom he or she was not married.

While Swanner did not specifically recall having conversations with Bowles, Harper, or Moose, he readily admitted having a policy of refusing to rent to any unmarried couple who intend to live together on the property. Swanner's refusal to rent or show property to unmarried couples is based on his Christian religious beliefs. Under Swanner's religious beliefs, even a non-sexual living arrangement by roommates of the opposite sex is immoral and sinful because such an arrangement suggests the appearance of immorality. It is undisputed that Swanner rejected each complainant as a tenant because of this policy and for no other reason.

A. Proceedings Before the Anchorage Equal Rights Commission

The AERC consolidated the three cases for hearing and appointed Robert W. Landau as hearing examiner on April 6, 1990. Landau conducted a hearing on October 9 and 11, 1990 and issued a twenty-five page Recommended Decision and proposed order in favor of the complainants on January 7, 1991. He served the recommended decision to Swanner's counsel and the AERC on January 7, 1991.

Pursuant to the AERC's administrative rules of procedure in effect at the time, each party had ten days after receipt of the recommended decision to submit written objections. AMC 5.10.015(A). When the AERC receives objections, the regulations provide for its review of the record and modification of the recommended decision where appropriate. AMC 5.10.015(B). If the parties fail to object, the proposed decision automatically becomes final. AMC 5.10.015(A). Neither Swanner nor the AERC submitted written objections. On January 23, 1991, the AERC issued a memorandum stating that, pursuant to AMC 5.10.015(A), the parties' failure to object to the hearing examiner's recommended decision resulted in his proposed order becoming final on January 22, 1991. On January 31, 1991, Cheri C. Jacobus, AERC Chairperson, issued a Notice of Final Order which affirmed that the proposed order became final on January 22, 1991.

B. Proceedings Before the Superior Court

Swanner appealed to the superior court on March 8, 1991. Judge Karen L. Hunt heard oral argument on May 15, 1992 and issued a written decision and order on August 31, 1992. She affirmed the AERC's decision, holding that (a) Swanner's conduct constituted unlawful discrimination based upon marital status; (b) enforcement of the state and municipal anti-discrimination laws does not violate Swanner's constitutional rights, pursuant to the U.S. Supreme Court's decision in Employment Division, Department of Human Resources v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), and our decisions in Frank v. State, 604 P.2d 1068 (Alaska 1979) and Seward Chapel, Inc. v. City of Seward, 655 P.2d 1293 (Alaska 1982); and (c) the automatic finalization of the AERC's decision did not violate Swanner's due process rights.

C. Proceedings Before This Court

Swanner appealed to this court on September 18, 1992. He contends that the superior court erred in finding that he discriminated against the complainants on the basis of marital status. He claims that he does not discriminate based on marital status, but even if he does, he is excused from compliance with the anti-discrimination laws because of his fundamental right to the free exercise of his religion, guaranteed by the Alaska and United States Constitutions. He also claims that the automatic finalization of the AERC's decision violates his due process rights under the Alaska and United States Constitutions. 1

Page 278

II. DISCUSSION

A. Swanner Violated AMC 5.20.020 and AS 18.80.240 by Discriminating Based on Marital Status

Swanner argues that he does not discriminate against individuals based on their marital status because he will rent to people who are single, married, widowed, divorced, or separated. However, he will not rent to those whom he expects will engage in conduct repugnant to his religious beliefs, namely cohabitation outside of marriage. Swanner considers such cohabitation to be fornication and immoral.

The AERC responds that the laws at issue do not recognize a distinction between "marital status" and "cohabitation." The AERC claims the statutes' plain language demonstrates that "marital status" includes cohabitating couples.

In Foreman v. Anchorage Equal Rights Comm'n, 779 P.2d 1199, 1201-03 (Alaska 1989), we looked at the plain language of AS 18.80.240 2 and AMC 5.20.020 3 and reviewed the intent behind the anti-discrimination laws. In Foreman, a landlord who refused to rent to an unmarried couple argued that the laws did not protect the interests of unmarried couples. Id. at 1201. We held that the landlord's policy against renting to unmarried couples unlawfully discriminated on the basis of marital status. Id. at 1203. We reasoned that because the landlord would have rented to the prospective tenants had they been married, and he refused to rent the property only after learning the couple was not married, "[t]his constitutes unlawful discrimination based on marital status." Id. The same reasoning applies here. Because Swanner would have rented the properties to the couples had they been married, and he refused to rent the property only after he learned they were not, Swanner unlawfully discriminated on the basis of marital status. 4

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B. Enforcement of AMC 5.20.020 and AS 18.80.240 Does Not Violate Swanner's Constitutional Right to the Free Exercise of His Religion Under the United States Constitution

Swanner contends that enforcement of AMC 5.20.020 and AS 18.80.240 against him has a coercive effect on the free exercise of his religious beliefs. He believes that compliance with these laws forces him to choose between his religious beliefs and his livelihood. He requests that we accommodate his religious beliefs by creating an exemption to the statute and ordinance. The AERC responds that "it is not Swanner's religious beliefs per se which run afoul of our anti-discrimination laws, but rather his actions and conduct in a commercial setting."

The First Amendment to the United States Constitution provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; ..." U.S. Const. amend. I. The Free Exercise Clause applies to the states by its incorporation into the Fourteenth Amendment. See Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940). It grants absolute protection to freedom of belief and profession of faith, but only limited protection to conduct dictated by religious belief. See Employment Div., Dep't of Human Resources v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990) (narrowing the scope of religious exemptions under the Free Exercise Clause by upholding a statute that criminalized peyote use, as applied to Native American religious ceremonies).

Swanner claims that we should apply the "compelling state interest" test set forth in Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963), to determine whether the laws at issue violate...

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43 practice notes
  • State v. Arlene's Flowers, Inc., NO. 91615-2
    • United States
    • United States State Supreme Court of Washington
    • February 16, 2017
    ...religious free exercise challenges to such laws and upheld them under strict scrutiny. E.g., Swanner v. Anchorage Equal Rights Comm'n, 874 P.2d 274, 281–83 (Alaska 1994) (in rental housing context, state antidiscrimination law passed strict scrutiny—meaning that defendants were not entitled......
  • Smith v. Fair Employment and Housing, No. C007654
    • United States
    • California Court of Appeals
    • May 26, 1994
    ...thus, free exercise may be infringed only by a compelling state interest]. 15 In Swanner v. Anchorage Equal Rights Com'n (Alaska 1994) 874 P.2d 274, the Alaska Supreme Court held a landlord's free exercise claim premised on the Alaska Constitution was outweighed by the state's compelling in......
  • Guam v. Guerrero, No. 00-71247.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • May 28, 2002
    ...amendment; and the fifteenth and nineteenth amendments." 48 U.S.C. § 1421b(u). 8. See, e.g., Swanner v. Anchorage Equal Rights Comm'n, 874 P.2d 274, 280-81 (Alaska 1994) (per curiam) (interpreting the state constitution's Free Exercise Clause to require a version of the more protective comp......
  • Elane Photography, LLC v. Willock, No. 30,203.
    • United States
    • New Mexico Court of Appeals of New Mexico
    • May 31, 2012
    ...beliefs.” Elane Photography argues that the district court's analysis and application of Swanner v. Anchorage Equal Rights Comm'n, 874 P.2d 274 (Alaska 1994) is improper in this case. Swanner similarly balanced sincerely held religious beliefs with the state's interest in battling discrimin......
  • Request a trial to view additional results
44 cases
  • State v. Arlene's Flowers, Inc., NO. 91615-2
    • United States
    • United States State Supreme Court of Washington
    • February 16, 2017
    ...religious free exercise challenges to such laws and upheld them under strict scrutiny. E.g., Swanner v. Anchorage Equal Rights Comm'n, 874 P.2d 274, 281–83 (Alaska 1994) (in rental housing context, state antidiscrimination law passed strict scrutiny—meaning that defendants were not entitled......
  • Smith v. Fair Employment and Housing, No. C007654
    • United States
    • California Court of Appeals
    • May 26, 1994
    ...thus, free exercise may be infringed only by a compelling state interest]. 15 In Swanner v. Anchorage Equal Rights Com'n (Alaska 1994) 874 P.2d 274, the Alaska Supreme Court held a landlord's free exercise claim premised on the Alaska Constitution was outweighed by the state's compelling in......
  • Guam v. Guerrero, No. 00-71247.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • May 28, 2002
    ...amendment; and the fifteenth and nineteenth amendments." 48 U.S.C. § 1421b(u). 8. See, e.g., Swanner v. Anchorage Equal Rights Comm'n, 874 P.2d 274, 280-81 (Alaska 1994) (per curiam) (interpreting the state constitution's Free Exercise Clause to require a version of the more protective comp......
  • Elane Photography, LLC v. Willock, No. 30,203.
    • United States
    • New Mexico Court of Appeals of New Mexico
    • May 31, 2012
    ...beliefs.” Elane Photography argues that the district court's analysis and application of Swanner v. Anchorage Equal Rights Comm'n, 874 P.2d 274 (Alaska 1994) is improper in this case. Swanner similarly balanced sincerely held religious beliefs with the state's interest in battling discrimin......
  • Request a trial to view additional results

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