Thomas v. Anchorage Equal Rights Com'n, Nos. 97-35220

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtO'SCANNLAIN; MICHAEL DALY HAWKINS
Citation165 F.3d 692
Parties99 Cal. Daily Op. Serv. 414, 99 Daily Journal D.A.R. 1005, 99 Daily Journal D.A.R. 506, 99 Daily Journal D.A.R. 611 Kevin THOMAS and Joyce Baker, Plaintiffs-Appellees, v. ANCHORAGE EQUAL RIGHTS COMMISSION and the Municipality of Anchorage, Defendants-Appellants, and 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, and Paula Haley in her official capacity as the Executive Director of the Alaska State Commission for Human Rights, Defendant-Appellant.
Docket NumberNos. 97-35220,97-35221
Decision Date14 January 1999

Page 692

165 F.3d 692
99 Cal. Daily Op. Serv. 414, 99 Daily Journal
D.A.R. 1005,
99 Daily Journal D.A.R. 506,
99 Daily Journal D.A.R. 611
Kevin THOMAS and Joyce Baker, Plaintiffs-Appellees,
v.
ANCHORAGE EQUAL RIGHTS COMMISSION and the Municipality of
Anchorage, Defendants-Appellants,
and
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,
and
Paula Haley in her official capacity as the Executive
Director of the Alaska State Commission for Human
Rights, Defendant-Appellant.
Nos. 97-35220, 97-35221.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted July 13, 1998.
Decided Jan. 14, 1999.

Page 696

Cliff John Groh (argued), Assistant Municipal Attorney, Anchorage Equal Rights Commission, Anchorage, Alaska; Robert A. Royce (argued), Assistant Attorney General, Department of Law, Anchorage, Alaska, for the defendants-appellants.

Kevin G. Clarkson (argued), Brena, Bell & Clarkson, Anchorage, Alaska, for the plaintiffs-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 the National Fair Housing Alliance amicus curiae.

Steven T. McFarland, Center for Law & Religious Freedom, Annandale, VA, for the 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 amici curiae.

Steven K. Green, Washington, D.C., for the Americans United for Separation of Church and State amicus curiae.

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

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

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

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

Appeals from the United States District Court for the District of Alaska; H. Russel Holland, District Judge, presiding. D.C. No. CV-95-0274-HRH and CV-95-0275-HRH.

Before: FARRIS, O'SCANNLAIN and HAWKINS, Circuit Judges.

O'SCANNLAIN, Circuit Judge:

We must decide whether the enforcement of Alaska housing laws prohibiting apartment owners from refusing to rent to unmarried couples infringes Christian landlords' rights under the Free Exercise Clause of the First Amendment.

I

Kevin Thomas and Joyce Baker are owners of residential rental properties in Anchorage, Alaska. 1 Thomas and Baker, as it turns out, are also professed Christians who believe that cohabitation between unmarried individuals constitutes the sin of fornication and that facilitating cohabitation in any way is tantamount to facilitating sin. That Thomas and Baker's beliefs regarding fornication are firmly rooted both in Biblical text 2 and in the commentaries of respected Christian theologians is not disputed by the parties. 3 Thomas and Baker have committed themselves to practicing their faith in all aspects of their lives, including their commercial activities as landlords. As a result, although they willingly rent to persons of any race, persons of either gender, single persons, and separated or widowed persons, they refuse to rent to unmarried persons who plan to live together.

Page 697

Both the State of Alaska and the City of Anchorage have adopted laws aimed at preventing discrimination in rental housing. Among its provisions, the Alaska statute makes it unlawful "to refuse to sell, lease, or rent ... real property to a person because of ... marital status." Alaska Stat. § 18.80.240(1). The Anchorage ordinance is in all material respects identical. See Anchorage Mun.Code § 5.20.020(A) ("[I]t is unlawful ... to ... [r]efuse to sell, lease or rent ... real property to a person because of ... marital status."). Under Alaska law, discrimination on the basis of "marital status" includes discrimination against unmarried couples. See Foreman v. Anchorage Equal Rights Comm'n, 779 P.2d 1199, 1202 (Alaska 1989). There is no dispute that Thomas and Baker have previously declined to rent to unmarried cohabitants. Nor is there any question that they have vowed to continue to decline to rent to unmarried couples. Consequently, it is clear that Thomas and Baker's conduct fits squarely within the terms of the Alaska antidiscrimination laws. The only question before us is whether or not those laws may validly be enforced against Thomas and Baker as a matter of constitutional law.

Thomas and Baker filed suit in federal district court against Paula Haley (the Executive Director of the Alaska State Commission on Human Rights), the Anchorage Equal Rights Commission ("AERC"), and the Municipality of Anchorage, seeking prospective declaratory and injunctive relief pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 2201. The landlords claimed that any enforcement of the antidiscrimination laws against them would violate their constitutional rights under the Free Exercise Clause of the First Amendment. 4 On cross-motions for summary judgment, the district court concluded, as an initial matter, that Thomas and Baker had standing, that their claims were ripe for review, and that the Eleventh Amendment did not preclude the landlord's complaint against Haley. In a separate order, the court declared that the application of the antidiscrimination laws to Thomas and Baker would violate their rights under the Free Exercise Clause and therefore permanently enjoined both the State and the City from enforcing the laws against the landlords. This appeal ensued.

II

Initially, we must determine whether Thomas and Baker's claims are ripe for review. Neither Thomas nor Baker has yet been prosecuted; their suits are of the pre-enforcement variety. In the district court, the landlords sought a declaratory judgment and an injunction "prohibit[ing] the Appellants from acting to enforce Alaska and Anchorage anti-marital status discrimination laws against them or similarly situated landlords." The Declaratory Judgment Act, 28 U.S.C. § 2201, which authorizes anticipatory suits in some instances, does not relax or otherwise alter the requirement that a case be "ripe" for judicial review. See Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240, 57 S.Ct. 461, 81 L.Ed. 617 (1937). In fact, § 2201 itself calls for "a case of actual controversy." Consequently, we must satisfy ourselves that "there is a substantial controversy ... of sufficient immediacy and reality to warrant the issuance of the declaratory judgment." Lake Carriers' Ass'n v. MacMullan, 406 U.S. 498, 506, 92 S.Ct. 1749, 32 L.Ed.2d 257 (1972) (quoting Maryland Cas. Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 85 L.Ed. 826 (1941)).

Page 698

The ripeness inquiry "focuses on whether there is sufficient injury [or threat of injury], and thus is closely tied to the standing requirement." Portman v. County of Santa Clara, 995 F.2d 898, 902-03 (9th Cir.1993). Under standing doctrine, because Thomas and Baker are not presently subject to prosecution, they must demonstrate a "reasonable threat of prosecution for conduct allegedly protected by the Constitution." Ohio Civil Rights Comm'n v. Dayton Christian Schs., Inc., 477 U.S. 619, 625 n. 1, 106 S.Ct. 2718, 91 L.Ed.2d 512 (1986) (emphasis added). The Supreme Court has alternately articulated this requirement for justiciability as consideration of whether the fear of prosecution or the alleged threats of prosecution are "not imaginary or wholly speculative." See Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 302, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979); see also Steffel v. Thompson, 415 U.S. 452, 459, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974) (considering whether the alleged threats of prosecution "cannot be characterized as 'imaginary or speculative' "). The "reasonable threat" standards used in evaluating standing are equally applicable in determining ripeness. See Adult Video Ass'n v. Barr, 960 F.2d 781, 786 (9th Cir.1992), vacated sub nom., 509 U.S. 917, 113 S.Ct. 3028, 125 L.Ed.2d 716 (1993), reinstated in relevant part, 41 F.3d 503 (9th Cir.1994).

We look to several factors in determining whether a "reasonable threat" of prosecution exists. For instance, this court has deemed it significant whether plaintiffs have articulated "concrete plans to violate" the acts they challenge. See San Diego County Gun Rights Comm. v. Reno, 98 F.3d 1121, 1126-27 (9th Cir.1996). Thomas and Baker clearly have done so. Both admitted that they have refused in the past, and will continue to refuse in the future, to rent to unmarried cohabitants in violation of the Alaska housing laws. Courts have also pointed to the existence of past prosecutions under the challenged laws as corroborative evidence of a "reasonable threat." See id. at 1128. Here, the laws at issue have been enforced in the recent past against similarly situated landlords. See, e.g., Swanner v. Anchorage Equal Rights Comm'n, 874 P.2d 274 (Alaska 1994); Foreman, 779 P.2d 1199. Indeed, the Alaska State Commission on Human Rights is presently engaged in an anti-marital-status discrimination enforcement proceeding against Alaska Pacific University. See Alaska State Comm'n on Human Rights v. Alaska Pacific Univ., ASCHR No. C-96-010 (Complaint Served Feb. 3, 1997). 5 Moreover, as the district court observed in finding this case ripe for judicial review, the state statute has been interpreted by the Alaska Supreme Court as mandating affirmative action on the part of the state human rights commission to discover and root out all vestiges of housing discrimination. See Hotel, Motel, Restaurant, Construction Camp...

To continue reading

Request your trial
19 practice notes
  • Axson-Flynn v. Johnson, No. 01-4176.
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • February 3, 2004
    ...certitude, of success on the merits." See Miller v. Reed, 176 F.3d 1202, 1207 (9th Cir.1999). Cf. Thomas v. Anchorage Equal Rights Comm'n, 165 F.3d 692, 705-06 (9th Cir.1999) (analogizing the "colorability" test in a hybrid-rights context to the "likelihood of success on the merits" standar......
  • Parker v. Hurley, No. 07-1528.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • January 31, 2008
    ...panel did apply strict scrutiny, but that opinion was later withdrawn by the court en banc. Thomas v. Anchorage Equal Rights Comm'n, 165 F.3d 692, 714-17 (9th Cir.1999), vacated by 220 F.3d 1134 (9th Cir.2000). The D.C. Circuit opinion in EEOC v. Catholic University of America, 83 F.3d 455 ......
  • Parents for Privacy v. Barr, No. 18-35708
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • February 12, 2020
    ...must show a ‘fair probability’—a ‘likelihood’—of success on the merits of his companion claim." Thomas v. Anchorage Equal Rights Comm’n , 165 F.3d 692, 706 (9th Cir.), reh’g granted, opinion withdrawn , 192 F.3d 1208 (9th Cir. 1999). The dissent, however, noted that "there is real doubt whe......
  • Conestoga Wood Specialities Corp. v. Sebelius, Civil Action No. 12–6744.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • January 11, 2013
    ...burden to deny unemployment benefits to a worker fired for not working on her Sabbath); Thomas v. Anchorage Equal Rights Comm'n, 165 F.3d 692, 714 (9th Cir.1999)rev'd on other grounds en banc,220 F.3d 1134 (9th Cir.2000) (law prohibiting discrimination in housing based on marital status sub......
  • Request a trial to view additional results
19 cases
  • Axson-Flynn v. Johnson, No. 01-4176.
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • February 3, 2004
    ...certitude, of success on the merits." See Miller v. Reed, 176 F.3d 1202, 1207 (9th Cir.1999). Cf. Thomas v. Anchorage Equal Rights Comm'n, 165 F.3d 692, 705-06 (9th Cir.1999) (analogizing the "colorability" test in a hybrid-rights context to the "likelihood of success on the merits" standar......
  • Parker v. Hurley, No. 07-1528.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • January 31, 2008
    ...panel did apply strict scrutiny, but that opinion was later withdrawn by the court en banc. Thomas v. Anchorage Equal Rights Comm'n, 165 F.3d 692, 714-17 (9th Cir.1999), vacated by 220 F.3d 1134 (9th Cir.2000). The D.C. Circuit opinion in EEOC v. Catholic University of America, 83 F.3d 455 ......
  • Parents for Privacy v. Barr, No. 18-35708
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • February 12, 2020
    ...must show a ‘fair probability’—a ‘likelihood’—of success on the merits of his companion claim." Thomas v. Anchorage Equal Rights Comm’n , 165 F.3d 692, 706 (9th Cir.), reh’g granted, opinion withdrawn , 192 F.3d 1208 (9th Cir. 1999). The dissent, however, noted that "there is real doubt whe......
  • Conestoga Wood Specialities Corp. v. Sebelius, Civil Action No. 12–6744.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • January 11, 2013
    ...burden to deny unemployment benefits to a worker fired for not working on her Sabbath); Thomas v. Anchorage Equal Rights Comm'n, 165 F.3d 692, 714 (9th Cir.1999)rev'd on other grounds en banc,220 F.3d 1134 (9th Cir.2000) (law prohibiting discrimination in housing based on marital status sub......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT