Thomas v. Anchorage Equal Rights Commision, No. 97-35220

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: McKEOWN; O'SCANNLAIN; KLEINFELD
• Citation: 220 F.3d 1134
• Parties: (9th Cir. 2000) KEVIN THOMAS and JOYCE BAKER, Plaintiffs-Appellees, v. ANCHORAGE EQUAL RIGHTS COMMISSION and the MUNICIPALITY OF ANCHORAGE, Defendants-Appellants, v. PAULA HALEY in her official capacity as the Executive Director of the Alaska State Commission for Human Rights, Defendant. KEVIN THOMAS and JOYCE BAKER, Plaintiffs-Appellees, v. ANCHORAGE EQUAL RIGHTS COMMISSION and the MUNICIPALITY OF ANCHORAGE, Defendants, v. PAULA HALEY in her official capacity as the Executive Director of the Alaska State Commission for Human Rights, Defendant-Appellant. & Office of the Circuit Executive
• Docket Number: No. 97-35221,No. 97-35220
• Decision Date: 13 July 1998

Page 1134

220 F.3d 1134 (9th Cir. 2000) KEVIN THOMAS and JOYCE BAKER, Plaintiffs-Appellees,
v.
ANCHORAGE EQUAL RIGHTS COMMISSION and the MUNICIPALITY OF ANCHORAGE, Defendants-Appellants,
v.
PAULA HALEY in her official capacity as the Executive Director of the Alaska State Commission for Human Rights, Defendant. KEVIN THOMAS and JOYCE BAKER, Plaintiffs-Appellees,
v.
ANCHORAGE EQUAL RIGHTS COMMISSION and the MUNICIPALITY OF ANCHORAGE, Defendants, v.
PAULA HALEY in her official capacity as the Executive Director of the Alaska State Commission for Human Rights, Defendant-Appellant. No. 97-35220 & No. 97-35221 Office of the Circuit Executive U.S. Court of Appeals for the Ninth Circuit Argued and Submitted July 13, 1998--Anchorage, Alaska
Opinion Filed January 14, 1999
Rehearing En Banc Granted and Opinion Withdrawn Oct. 19, 1999
Argued and Submitted March 23, 2000--San Francisco, California
En Banc Opinion Filed August 4, 2000

Page 1135

Copyrighted Material Omitted

Page 1136

Cliff J. Groh, Municipal Attorney's Office, Anchorage, Alaska, for appellants Anchorage Equal Rights Commission and Municipality of Anchorage.

Joanne M. Grace, Robert A. Royce, Office of the Attorney General, Anchorage, Alaska, for appellant Paula M. Haley, Executive Director of the Alaska State Commission for Human Rights.

Kevin G. Clarkson, Brena, Bell & Clarkson, P.C., Anchorage, Alaska, for the appellees.

Caroline M. Brown, Covington & Burling, Washington, D.C.; John P. Relman, Washington Lawyer's Committee for Civil Rights & Urban Affairs, Washington, D.C., for amicus curiae the National Fair Housing Alliance.

Steven T. McFarland, Center for Law & Religious Freedom, Annandale, Virginia, for amici curiae Christian Legal Society, National Council of Churches, Union of Orthodox Jewish Congregations, Church of Jesus Christ of Latter-Day Saints, National Association of Evangelicals, and Ethics and Religious Liberty Commission.

Mark H. Wittow, Preston Gates & Ellis, Anchorage, Alaska, for amicus curiae Alaska Civil Liberties Union.

Clyde J. Wadsworth, Heller Ehrman White & McAuliffe, San Francisco, California, for amicus curiae Lambda Legal Defense and Education Fund.

Michael P. Seng, Chicago, Illinois, for amicus curiae John Marshall Law School Fair Housing Legal Clinic.

Robert J. Barth, Oak Brook, Illinois, for amicus curiae Institute in Basic Life Principles.

Sevilla C.P. Claydon, Seattle, Washington, for amici curiae the Northwest Women's Law Center, American Muslim Council, California Women's Law Center, Connecticut Women's Education and Legal Fund, the Feminist Majority Foundation, National Center for Lesbian Rights, National Council of Jewish Women, Women's Law Center of Maryland.

David K. Flynn, Department of Justice, Washington, D.C., for amicus curiae United States.

Timothy Dowling, Washington, D.C., for amicus curiae Community Rights Counsel.

Thomas Reilly, Office of the Attorney General, Oakland, California, for amicus curiae State of California.

David P. Enzminger, O'Melveny & Myers LLP, Los Angeles, California, for the Anti-Defamation League of B'nai B'rith.

Eric Grant, Sacramento, California, for amicus curiae Pacific Legal Foundation.

Appeals from the United States District Court for the District of Alaska, H. Russel Holland, District Judge, Presiding; D.C. Nos. CV-95-0274-HRH CV-95-0275-HRH

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Before: Procter Hug, Jr., Chief Judge, James R. Browning, Harry Pregerson, Diarmuid F. O'Scannlain, Ferdinand F. Fernandez, Pamela Ann Rymer, Andrew J. Kleinfeld, A. Wallace Tashima, Susan P. Graber, M. Margaret McKeown, and William A. Fletcher, Circuit Judges.

McKEOWN, Circuit Judge:

This is a case in search of a controversy. Several landlords mount a First Amendment free exercise of religion and free speech challenge to the Alaska housing laws prohibiting discrimination on the basis of marital status. We do not address this constitutional question, however, because this preenforcement challenge presents a threshold issue of justiciability. No prospective tenant has ever complained to the landlords, let alone filed a complaint against them. Neither the Alaska State Commission for Human Rights nor the Anchorage Equal Rights Commission has ever initiated an investigation into the landlords' rental practices or commenced a civil enforcement action or criminal prosecution under the challenged laws. No violation of the laws is on the horizon and no enforcement action or prosecution is either threatened or imminent. Indeed, the principal enforcement agencies had never even heard of these landlords before they filed this action. Simply put, at this stage the dispute is purely hypothetical and the injury is speculative. Whether viewed through the lens of standing or ripeness, resolution of the First Amendment issues is premature. Thus, dismissal of this action is required¹.

BACKGROUND

Kevin Thomas and Joyce Baker² (the "landlords") individually own residential rental properties in Anchorage, Alaska. Both are devout Christians who are committed to carrying out their religious faith in all aspects of their lives, including their commercial activities as landlords. Central to their faith is a belief that cohabitation between an unmarried man and an unmarried woman is a sin. The landlords also believe that facilitating the cohabitation of an unmarried couple is tantamount to committing a sin themselves. Based on this religious belief, the landlords claim that they have refused to rent to unmarried couples in the past and that they intend to continue to do so in the future.

Both the State of Alaska and the City of Anchorage have adopted laws that outlaw certain forms of discrimination in rental housing and prohibit any refusal to rent on the basis of marital status. The Alaska statute makes it unlawful "to refuse to sell, lease or rent . . . real property to a person because of . . . marital status." Alaska Stat. S 18.80.240(1), (2). The Anchorage ordinance is parallel in this respect. See Anchorage Mun. Code S 5.20.020(A), (B). The laws further prohibit landlords from inquiring about the marital status of prospective tenants or representing to prospective tenants that property is not available because of the tenants' marital status. See Alaska Stat. S 18.80.240(3), (5); Anchorage Mun. Code S 5.20.020(C), (E). Finally, the ordinance, but not the state statute, prohibits publication or advertisement in the leasing of property that indicates a preference based on marital status. See Anchorage Mun. Code S 5.20.020(G). The Alaska Supreme Court has construed the marital status provisions of the laws to prohibit landlords from refusing to rent their properties to unmarried couples. See Foreman v. Anchorage Equal Rights

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Comm'n, 779 P.2d 1199, 1202 (Alaska 1989).

The landlords brought this action against Paula Haley, the Executive Director of the Alaska State Commission for Human Rights, the Anchorage Equal Rights Commission, and the Municipality of Anchorage, seeking declaratory and injunctive relief under 42 U.S.C. S 1983 and 28 U.S.C. S 2201. They claimed that the threat of enforcement of the marital status provisions of the anti-discrimination laws infringed their First Amendment rights to free exercise of religion and free speech. Specifically, they argued that their religious beliefs precluded them from renting to unmarried couples and that the laws restricted their ability to communicate those beliefs through advertising or by inquiring about the marital status of prospective tenants. On cross-motions for summary judgment, the district court held that the landlords' claims were justiciable. In a subsequent order, the court concluded that the marital status provisions substantially burdened the landlords' free exercise rights. The court declared the provisions unconstitutional as applied and permanently enjoined the State and the City from enforcing the provisions against the landlords. A divided panel of this court affirmed, and we voted to consider this matter en banc. See Thomas v. Anchorage Equal Rights Comm'n, 165 F.3d 692, withdrawn and reh'g en banc granted, 192 F.3d 1208 (9th Cir. 1999).

DISCUSSION

This case presents a threshold question of ripeness. The Supreme Court instructs that ripeness is "peculiarly a question of timing," Regional Rail Reorg. Act Cases , 419 U.S. 102, 140 (1974), designed to "prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements." Abbott Laboratories v. Gardner, 387 U.S. 136, 148 (1967). Our role is neither to issue advisory opinions nor to declare rights in hypothetical cases, but to adjudicate live cases or controversies consistent with the powers granted the judiciary in Article III of the Constitution. See U.S. Const. art. III. Although ripeness, like other justiciability doctrines, is "not a legal concept with a fixed content or susceptible of scientific verification," Poe v. Ullman, 367 U.S. 497, 508 (1961), the Supreme Court has observed that the doctrine "is drawn both from Article III limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction," Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 57 n.18 (1993). As we noted in Portman v. County of Santa Clara, 995 F.2d 898, 902 (9th Cir. 1993), "the ripeness inquiry contains both a constitutional and a prudential component." We consider each component in turn.

A. Constitutional Component

The constitutional component of the ripeness inquiry is often treated under the rubric of standing and, in many cases, ripeness coincides squarely with standing's injury in fact prong.³ Sorting out where standing ends and ripeness begins is not an easy task. Indeed, because the focus of our ripeness inquiry is primarily temporal in scope, ripeness can be characterized as standing on a timeline. Cf. United States Parole Comm'n v. Geraghty, 445 U.S. 388, 397 (1980) (describing mootness as "the doctrine of standing set...