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Thomas v. Anchorage Equal Rights Commission (12/10/2004) sp-5850
Thomas v. Anchorage Equal Rights Commission (12/10/2004) sp-5850
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
KEVIN THOMAS, JOYCE BAKER, )
and JEFFREY BUBNA, ) Supreme Court Nos. S-
10733/10883
)
Appellants/Cross-Appellees, ) Superior Court No. 3AN-
01-7003 CI
)
v. )
)
ANCHORAGE EQUAL RIGHTS )
COMMISSION; the MUNICIPALITY ) O P I N I O N
OF ANCHORAGE; and PAULA )
HALEY in her Official Capacity as ) [No. 5850 - December 10,
2004]
the Executive Director of the )
ALASKA STATE COMMISSION )
FOR HUMAN RIGHTS, )
)
Appellees/Cross-Appellants. )
)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Sharon L. Gleason, Judge.
Appearances: Kevin G. Clarkson, Brena, Bell
& Clarkson, P.C., Anchorage, for
Appellants/Cross-Appellees. Constance E.
Livsey and Krista Schwarting, Holmes Weddle &
Barcott, Anchorage, for Appellees Anchorage
Equal Rights Commission and the Municipality
of Anchorage. Robert A. Royce, Assistant
Attorney General, Anchorage, and Gregg D.
Renkes, Attorney General, Juneau, for
Appellee/Cross-Appellant Haley.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
BRYNER, Chief Justice.
I. INTRODUCTION
The Alaska Statutes and the Anchorage Municipal Code
both prohibit landlords from refusing to rent property to persons
because of marital status.1 Ten years ago, in Swanner v.
Anchorage Equal Rights Commission, we held that enforcing these
provisions against an Anchorage landlord who refused to rent to
unmarried couples on religious grounds did not violate the
landlords right to free exercise of his religion.2 In the
present case, similarly situated landlords urge us to overrule
Swanner, insisting that the state and municipal fair housing laws
violate their freedoms of religion and speech, and other
protected rights. But since the landlords have not clearly
convinced us that Swanner was wrongly decided, or is no longer
sound, or that more good than harm would be done by departing
from precedent, we apply the rule of stare decisis and decline to
reexamine our holding. Because Swanner controls the landlords
claims, we affirm the superior courts order dismissing the case.
II. BACKGROUND FACTS
Alaska Statute 18.80.240 makes it unlawful . . . to
refuse to sell, lease, or rent . . . real property to a person
because of sex, marital status, [or] changes in marital status;
this statute further prohibits 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.3 Anchorage Municipal Code 5.20.020 sets
out parallel prohibitions.4 The municipal code additionally
precludes landlords from publishing any communication with
respect to their rental property indicative of marital status
discrimination.5
In 1994 we rejected a constitutional challenge to these
provisions brought by Anchorage landlord Tom Swanner.6 Swanner
had a policy of refusing to rent or show property to unmarried
couples based on his Christian religious beliefs.7 After
receiving complaints against Swanner, the Anchorage Equal Rights
Commission filed proceedings against him and ultimately found
that he had engaged in discriminatory conduct.8 The superior
court upheld this ruling, and Swanner appealed, asserting that
the state and municipal anti-discrimination laws violated his
rights to the free exercise of his religion under the United
States and Alaska Constitutions.9
Our opinion in Swanner determined that there was no
merit to these claims under either constitution. Applying the
test set out by the United States Supreme Court in Employment
Division, Department of Human Resources v. Smith10 which holds
that the United States Constitution usually does not prohibit
religious restraints arising incidentally from a neutral and
generally applicable law we concluded that Swanners federal
constitutional rights had not been violated, since the challenged
anti-discrimination laws are neutral and generally applicable
provisions.11 Though we acknowledged that Smith creates an
exception that would require proof of a compelling state interest
in a hybrid situation where the facts indicated a possible
violation of the Free Exercise Clause and some other
constitutionally protected right, we found that Swanners case did
not present this kind of hybrid situation, pointing out that
Swanner did not contend that any other constitutional right had
been violated.12 Our opinion in Swanner nevertheless applied a
more stringent test in addressing Swanners free exercise claim
under the Alaska Constitution. Using the more protective
requirements of Sherbert v. Verner, which we had previously
adopted as a state constitutional measure in Frank v. State,13 we
concluded that the challenged laws passed constitutional muster
because they furthered a compelling state interest by preventing
marital status discrimination and were narrowly tailored.14 And
relying on the same conclusion, we separately held that the
disputed laws would withstand federal review under the strict
scrutiny test then recently enacted by Congress in the Religious
Freedom Restoration Act of 1993.15
Soon after Swanner was published, Kevin Thomas and
Joyce Baker filed suit in the United States District Court in
Anchorage, asserting that the Alaska and Anchorage anti-marital
discrimination laws violated their free exercise rights under the
United States Constitution, and seeking a declaratory judgment
enjoining the state and the municipality from enforcing those
provisions. Thomas and Baker are Anchorage landlords who are
similarly situated to Swanner; their positions and claims in the
federal court have been described as follows:
Kevin Thomas and Joyce Baker (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.
. . . .
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. 1983 and 28 U.S.C.
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.[16]
The federal district court granted summary judgment to
the landlords, declaring that the state and municipal
prohibitions of marital discrimination violated their free
exercise rights. A divided panel of the Ninth Circuit affirmed
this ruling.17 But the court subsequently granted rehearing en
banc and withdrew the panels opinion.18 After rehearing the case,
the en banc court vacated the judgment and ordered the landlords
action dismissed; describing the action as a case in search of a
controversy,19 the court ruled that the landlords constitutional
claims should not have been decided on their merits, since the
action was not ripe for judicial review.20
Joined by another similarly situated Anchorage
landlord, Jeffrey Bubna, Thomas and Baker then refiled their case
in the Alaska Superior Court. Their superior court action
asserted essentially the same hybrid violation of free exercise
rights that Thomas and Baker had raised in the preceding federal
action. The landlords also alleged independent violations of
their constitutional rights to free speech and equal protection.
In addition, the landlords asked that our decision in Swanner be
overruled.
Ruling on cross-motions for summary judgment, Superior
Court Judge Sharon Gleason rejected these claims. Specifically,
the court declined to overrule Swanner, finding that the decision
remained controlling law in Alaska and was binding on the
superior court. The superior court also found Swanner
controlling on the landlords free exercise claims, concluding
that our opinion in Swanner expressly and unequivocally rejected
their arguments. Last, the court rejected the landlords claims
that the anti-discrimination laws violated their rights to free
speech and equal protection. Addressing the free speech claim,
the court ruled that, when interpreted narrowly in light of their
statutory purpose the challenged provisions extended only to
narrow limitations on commercial speech occurring in the context
of specific activities undertaken as preliminaries to real estate
transactions. The court thus declined to find them impermissibly
vague or overbroad. And as for the landlords equal protection
claim, the superior court simply found no merit to their theory
that the laws have a disparate impact by creating exceptions that
permit discrimination for secular reasons while forbidding
landlords from excluding unmarried cohabitants for religious
reasons.
The landlords appeal, renewing their arguments on their
free speech and free exercise claims and urging us to overrule
Swanner.
III. DISCUSSION
A. Ripeness
We must initially consider the issue of ripeness for
judicial review. Relying primarily on the Ninth Circuits en banc
decision and on our own ruling in Brause v. State, Department of
Health & Social Services,21 the Alaska Commission for Human Rights
insists that the superior court should have declined to rule on
the merits of the Landlords case and should have dismissed it
outright. But the commissions arguments are unconvincing.
The federal courts ruling on ripeness has little
bearing on our own determination of the issue. Ripeness is an
aspect of standing,22 and we have often noted that Alaskas
standing requirements are more lenient than their federal
counterpart, since they favor ready access to a judicial forum.23
We have consistently found this difference to be important,
emphasizing the need to follow our own unique . . . jurisprudence
if Alaska standing doctrine is to retain its quality of relative
openness.24
As for the commissions reliance on Brause, the case is
inapposite. There, a homosexual couple challenged a state law
claiming that it denied them the same benefits it gave married
couples.25 Even though the statute nominally applied to the
appellants, we found their declaratory judgment action unripe
because their constitutional challenge appeared to be purely
hypothetical: they failed to identify any actual harm they might
suffer, even assuming that the state continued to enforce the
disputed provision.26 Here, in sharp contrast to the situation we
addressed in Brause, it seems obvious that the landlords stand to
suffer actual prejudice if the state or municipality enforces the
challenged laws against them. Indeed, the commission does not
seriously dispute this proposition; it argues instead that the
landlords cannot sue unless and until these provisions are
actually enforced against them. But the record shows a recent
history of active enforcement; and the commission does not
disavow the possibility of future enforcement. In effect, then,
the commission is asking us to hold that the landlords must rely
on its good graces and hope for the best until it files charges.
We have never imposed such a stringent requirement as a
condition of ripeness or standing. In State v. Planned
Parenthood, a case decided after Brause, the state advanced a
similar argument in an attempt to defeat the claims of two
physicians who sought to challenge a law requiring parental
consent to abortion.27 The state contended that both doctors lack
standing because neither faces a specific threat of prosecution
or alleges past prosecutions.28 In rejecting this argument, we
held that the doctors need not allege such drastic harm to meet
Alaskas lenient test of standing.29 We went on to hold that the
risk of enforcement alone sufficed for standing, since the
challenged law would require both doctors to change their current
practices and would expose them to civil and criminal liability
if they failed to comply.30
We see no sound basis for distinguishing Planned
Parenthood from the present case. If we denied standing here,
the landlords would similarly be forced to change their rental
practices or expose themselves to civil and criminal liability.
These circumstances are sufficient to meet Alaskas lenient test
of standing. We conclude that the superior court did not abuse
its discretion in refusing to dismiss the claims as unripe for
judicial review.31
B. Stare Decisis
The commission advances a more convincing alternative
argument against reaching the merits of the landlords claims:
even if we determine that the landlords have standing to raise
their constitutional claims, the commission argues, Swanner
should be applied to deny . . . their requested relief under the
common law principle of stare decisis.
The stare decisis doctrine rests on a solid bedrock of
practicality: no judicial system could do societys work if it
eyed each issue afresh in every case that raised it. 32 In
recognizing the importance of this doctrine, we have consistently
held that a party raising a claim controlled by an existing
decision bears a heavy threshold burden of showing compelling
reasons for reconsidering the prior ruling: We will overrule a
prior decision only when clearly convinced that the rule was
originally erroneous or is no longer sound because of changed
conditions, and that more good than harm would result from a
departure from precedent.33
Here, the landlords free exercise claims fall squarely
within the ambit of our opinion in Swanner.34 Indeed, the
landlords specifically seek to overrule Swanner, insisting that
Mr. Swanner was a landlord virtually identical to Thomas, Baker
and Bubna. But while they strenuously criticize Swanners
reasoning and holding in many respects, the landlords do not
convincingly show good cause to revisit this precedent.
1. First element of stare decisis: original error or
current unsoundness
To meet the first essential element of the stare
decisis test, the landlords bear the burden of convincingly
demonstrating either that Swanner was originally erroneous or
that intervening changes have made it unsound.35
a. The originally erroneous requirement
A decision is originally erroneous if it proves to be
unworkable in practice.36 But the landlords here do not show that
Swanner has proved unworkable in practice. They do suggest that
Swanner left them with an unfair and unworkable moral dilemma by
failing to meaningfully consider the right to free exercise of
religion under Smiths hybrid rights theory, by mistakenly finding
that the challenged anti-discrimination laws especially their
built-in exceptions are facially neutral and generally
applicable, and by leaving intact the laws vague and overbroad
provisions restraining free speech. Yet to override the rule of
stare decisis, the landlords need to show not just that Swanner
failed to meaningfully address these points, but that they would
clearly have prevailed if the points had been fully considered.
Here, no showing of clear and obvious error has been
made. Despite the landlords assertions to the contrary, Swanner
did not ignore or overlook the hybrid rights exception to Smiths
general rule. Although Swanner found no need to discuss the
theory, our observation in Swanner that no hybrid violation had
been alleged demonstrates our recognition of the theory and our
implicit view that it had no clear and obvious application to the
matter at issue.37 The landlords current arguments on this theory
fall well short of convincing us that Swanner clearly would have
been decided differently had the theory been raised. To the
contrary, the landlords current hybrid rights arguments
convincingly illustrate that this constitutional theory remains
controversial and largely undefined: considerable uncertainty
continues to surround the doctrines meaning, scope, and correct
application and, indeed, its very existence.38 Hence, although
the landlords hybrid rights arguments certainly raise difficult
and debatable constitutional questions, they fail to convincingly
show that our holding in Swanner was clearly in error.39
The landlords fare no better in criticizing Swanners
view that the challenged laws were facially neutral and generally
applicable40 a view that potentially affects the analysis of free
exercise rights under both the Smith test and the test set out in
Sherbert.41 As already mentioned above, the superior courts
decision in the present case expressly found the landlords
contentions on this point to be lacking in merit. But even
assuming that the landlords raised a fairly debatable issue on
the neutrality and general applicability of the challenged laws,
their arguments would still fail to make a clearly convincing
showing that Swanner wrongly decided the issue.
The landlords arguments rely largely on the state
statutes exception for singles only and married couples only
classes of housing. The superior court found no evidence that
this exception had any discriminatory intent or impact. Despite
their strenuous protests to the contrary, the landlords offer no
persuasive reason to challenge the superior courts findings.
Notably, both the legislative history of this exception and the
state commissions interpretation of it in past litigation suggest
that the legislature intended that the exception would allow
landlords considerable latitude to designate particular units or
blocks of apartments as singles only or married couples only,
provided that the landlords established these classifications
before offering the properties for rental thus eliminating the
risk of discriminating against prospective tenants on a case-by-
case basis.42 The landlords do not assert that their religious
beliefs compel them to rent to classes of tenants other than
singles only or married couples; nor do they satisfactorily
explain why they could not take advantage of this exception to
mitigate any financial hardship they might otherwise experience
by complying with the anti-discrimination provision.
The landlords further suggest that Swanner should be
deemed to have been wrongly decided because the statutory scheme
it approved inevitably exposes them, and other similarly situated
religious landlords, to intolerable restraints on their
constitutional rights to free speech. But the superior court
persuasively answered this contention by strictly construing the
challenged laws to extend only to narrow limitations on
commercial speech of the kind that is integral to activities
undertaken as preliminaries to real estate transactions. The
superior courts narrow construction of the statutes comports with
their underlying purpose and defeats the landlords vagueness and
overbreadth claims.43
b. The intervening changes requirement
As an alternative to demonstrating that Swanner was
wrong when it was originally decided, the landlords could meet
their burden of establishing the first element needed to overcome
the rule of stare decisis by making a clear and convincing
showing that the decision is no longer sound because conditions
have changed.44 But the landlords claims reveal few salient
factual changes: the landlords situation is nearly
indistinguishable from the one we considered in Swanner.
The landlords nonetheless allege that their current
situation differs markedly from Swanner because the law has now
changed. As we have previously recognized,
a prior decision may be abandoned because of
changed conditions if related principles of
law have so far developed as to have left the
old rule no more than a remnant of abandoned
doctrine, [or] facts have so changed or come
to be seen so differently, as to have robbed
the old rule of significant
application. . . .[45]
The landlords claim here that Swanner has recently been overruled
by the Supreme Courts decision in Boy Scouts of America v. Dale.46
Though they acknowledge that Dale dealt with associational
freedom, not free exercise of religion, and so does not directly
overrule Swanner, the landlords insist that Swanner has been
overruled sub silentio by Dale. In the landlords view, Dale
stands for the general proposition that anti-discrimination laws
like those challenged here must fail when placed in opposition to
a serious fundamental First Amendment right.
But it seems reasonable to wonder whether sub silentio
rulings in other words, rulings that inform existing law by mere
force of analogy can ever trump stare decisis by establishing
changed conditions that have so far developed as to have left the
old rule no more than a remnant of abandoned doctrine.47 And more
to the point, the landlords reading of Dale overstates the
opinions holding. For the Supreme Court in Dale did not broadly
rule, as the landlords suggest, that First Amendment rights
should generally be deemed more compelling than laws barring
marital discrimination; instead, the Court expressly found New
Jerseys claim of compelling interest attenuated in the particular
situation at issue there because New Jersey law extended its anti-
discrimination requirements to private groups whose activities
fell well beyond those usually involved in providing public
accommodations.48 This same observation obviously would not hold
true in the circumstances at issue here, since the challenged
Alaska and Anchorage laws deal exclusively with the core activity
of providing public accommodations. It follows that Dale does
not clearly and convincingly undermine Swanners continuing
soundness.
2. Second element of stare decisis: more good than
harm requirement
The landlords failure to convincingly demonstrate
Swanners original or current unsoundness makes the second
requirement for overriding the stare decisis rule academic. But
it seems worthwhile to emphasize that even if the landlords could
establish good reasons to suppose that Swanner was wrongly
decided or is currently unsound, we would not override the
doctrine of stare decisis unless they also clearly established
that more good than harm would result from overruling that
decision.49 In our view, the potential benefits of overruling
Swanner have not been clearly established here. The Ninth
Circuits en banc decision in this case sheds useful light on this
point. That decision aptly summarized the serious disadvantages
of attempting to resolve the difficult constitutional issues
raised by the landlords without having a particularized
controversy and a solid framework of facts:
The manner in which the intersection of
marital status discrimination and the First
Amendment is presented here, devoid of any
specific factual context, renders this case
unfit for judicial resolution. The record
before us is remarkably thin and sketchy,
consisting only of a few conclusory
affidavits. A concrete factual situation is
necessary to delineate the boundaries of what
conduct the government may or may not
regulate. And yet, the landlords ask us to
declare Alaska laws unconstitutional, in the
absence of any identifiable tenants and with
no concrete factual scenario that
demonstrates how the laws, as applied,
infringe their constitutional rights. This
case is a classic one for invoking the maxim
that we do not decide constitutional
questions in a vacuum.
. . . .
Moreover, by being forced to defend the
housing laws in a vacuum and in the absence
of any particular victims of discrimination,
the State and the City would suffer hardship
were we to adjudicate this case now.[50]
Of course we recognize that the federal court discussed
these prudential concerns in connection with the threshold issue
of ripeness for judicial review a separate procedural matter
that we have resolved in the landlords favor. Yet the federal
courts concerns seem equally relevant to our stare decisis
analysis, since they weigh heavily against any hasty assumption
that we would do more good than harm by attempting to reconsider
Swanner in this case as it currently stands. To the extent that
they are relevant to our stare decisis analysis, then, the
federal courts well-founded concerns deserve to be heeded, even
though Alaskas lenient rule of standing has led us to disagree
with the federal courts decision on ripeness. After all, we can
see no good reason to hold that the landlords undeniable right to
pursue their claims in Alaskas courts should lighten the usual
burden that any litigant must bear to overcome the force of
precedent under stare decisis.
IV. CONCLUSION
Although the landlords have standing to pursue their
claims in Alaskas courts, they have failed to show conditions
warranting departure from the doctrine of stare decisis. Because
we conclude that Swanner completely controls the landlords free
exercise claims and that their free speech arguments lack
independent merit, we AFFIRM the superior courts summary judgment
order dismissing the landlords complaint.
_______________________________
1 AS 18.80.240; AMC 5.20.020.
2 874 P.2d 274, 276 (Alaska 1994).
3 AS 18.80.240(1), (2), (3) and (5) provide:
It is unlawful for the owner, lessee,
manager, or other person having the right to
sell, lease, or rent real property
(1) to refuse to sell, lease, or rent
the real property to a person because of sex,
marital status, changes in marital status,
pregnancy, race, religion, physical or mental
disability, color, or national origin;
however, nothing in this paragraph prohibits
the sale, lease, or rental of classes of real
property commonly known as housing for
singles or married couples only;
(2) to discriminate against a person
because of sex, marital status, changes in
marital status, pregnancy, race, religion,
physical or mental disability, color, or
national origin in a term, condition, or
privilege relating to the use, sale, lease,
or rental of real property; however, nothing
in this paragraph prohibits the sale, lease,
or rental of classes of real property
commonly known as housing for singles or
married couples only;
(3) to make a written or oral inquiry
or record of the sex, marital status, changes
in marital status, race, religion, physical
or mental disability, color, or national
origin of a person seeking to buy, lease, or
rent real property;
. . . .
(5) to represent to a person that real
property is not available for inspection,
sale, rental, or lease when in fact it is so
available, or to refuse to allow a person to
inspect real property because of the race,
religion, physical or mental disability,
color, national origin, age, sex, marital
status, change in marital status or pregnancy
of that person or of any person associated
with that person[.]
In addition, AS 18.80.270 specifies that a person who
wilfully violates these provisions commits a misdemeanor
punishable by a $500 fine, thirty days in jail, or both.
4 See AMC 5.20.020(A), (B), (C), (E). Unlike the state
statute, however, this provision of the Anchorage code exempts
rental space in a landlords individual home when the landlord and
renter would share common areas. Specifically, the opening
clause of AMC 5.20.020 provides:
Except in the individual home wherein
the renter or lessee would share common
living areas with the owner, lessor, manager,
agent or other person, it is unlawful for the
owner, lessor, manager, agent or other person
having the right to sell, lease, rent or
advertise real property to . . . .
5 Specifically, AMC 5.20.020 (G) makes it unlawful for a
lessor to:
Circulate, issue or display, make, print
or publish, or cause to be made or displayed,
printed or published, any communication,
sign, notice, statement or advertisement with
respect to the use, sale, lease or rental or
real property that indicates any preference,
limitation, specification or discrimination
based on race, religion, age, sex, color,
national origin, marital status or physical
or mental disability.
6 Swanner, 874 P.2d at 276.
7 Id. at 277.
8 Id.
9 Id.
10 494 U.S. 872 (1990).
11 Swanner, 874 P.2d at 279-80.
12 Id.
13 604 P.2d 1068, 1070 (Alaska 1979) (applying compelling
state interest test adopted in Sherbert v. Verner, 374 U.S. 398
(1963)).
14 Swanner, 874 P.2d at 280-84.
15 Id. at 280 n.9.
16 Thomas v. Anchorage Equal Rights Commn, 220 F.3d 1134,
1137-38 (9th Cir. 2000) (en banc), cert. denied, 531 U.S. 1143
(2001).
17 Thomas v. Anchorage Equal Rights Commn, 165 F.3d 692
(9th Cir. 1999), withdrawn and rehg en banc granted, 192 F.3d
1208 (9th Cir. 1999).
18 Thomas v. Anchorage Equal Rights Commn, 192 F.3d 1208
(9th Cir. 1999).
19 Thomas, 220 F.3d at 1137.
20 Thomas, 220 F.3d at 1142.
21 21 P.3d 357 (Alaska 2001).
22 See, e.g., Brause, 21 P.3d at 359 n.6, (quoting 13A
Charles Alan Wright, et al., Federal Practice and Procedure
3532.1, at 101 (Supp. 2000)).
23 See, e.g., Trustees for Alaska v. State, 736 P.2d 324,
327 (Alaska 1987) (We have departed from a restrictive
interpretation of the standing requirement, adopting instead an
approach favoring increased accessibility to judicial forums. )
(internal citations omitted).
24 Bowers Office Prods., Inc. v. Univ. of Alaska, 755 P.2d
1095, 1097 n.5 (Alaska 1988).
25 Brause, 21 P.3d at 357-58.
26 Id.
27 35 P.3d 30, 34 (Alaska 2001).
28 Id.
29 Id.
30 Id.
31 Since Alaska law gives the trial court discretion to
declare the rights and legal relations of an interested party in
the case of an actual controversy with the state, see AS
22.10.020(g), we review the superior courts decision on
justiciability for abuse of discretion. See Brause, 21 P.3d at
358.
32 Pratt & Whitney Canada, Inc. v. United Technologies,
852 P.2d 1173, 1175 (Alaska 1993) (quoting Planned Parenthood v.
Casey, 505 U.S. 833, 854 (1992)).
33 State, Commercial Fisheries Entry Commn v. Carlson, 65
P.3d 851, 859 (Alaska 2003) (internal quotations omitted).
34 We reject the landlords contention that Swanner does
not squarely control their free exercise claim because it failed
to address or incorrectly decided various free exercise arguments
that the landlords now emphasize.
35 Carlson, 65 P.3d at 859.
36 Pratt & Whitney, 852 P.2d at 1176 (citing Casey, 505
U.S. at 854).
37 874 P.2d at 280.
38 See, e.g., Civil Liberties for Urban Believers v. City
of Chicago, 342 F.3d 752 (7th Cir. 2003) (finding that both
claims must individually have merit for heightened scrutiny to
occur); Leebaert v. Harrington, 332 F.3d 134 (2d Cir. 2003)
(finding hybrid right may not exist, and if it does, it does not
warrant strict scrutiny); Miller v. Reed, 176 F.3d 1202 (9th Cir.
1999) (finding hybrid right can exist but claims must be
violation of fundamental rights); Reich v. Shiloh True Light
Church of Christ, No. 95-2765, 1996 WL 228802, **3 (4th Cir. May
7, 1996) (per curiam) (finding hybrid right exists but free
exercise claim fails compelling interest test); EEOC v. Catholic
Univ. of America, 83 F.3d 455 (D.C. Cir. 1996) (finding existence
of hybrid right claim, but deciding case on other grounds); Thiry
v. Carlson, 78 F.3d 1491 (10th Cir. 1996) (finding hybrid right
claim to exist but that claim at issue was not such a claim);
Brown v. Hot, Sexy and Safer Prods., Inc., 68 F.3d 525 (1st Cir.
1995) (finding a hybrid claim warrants strict scrutiny but did
not apply); Kissinger v. Board of Trustees, 5 F.3d 177 (6th Cir.
1993) (refusing to decide hybrid right claims without
clarification from Supreme Court); Cornerstone Bible Church v.
City of Hastings, 948 F.2d 464 (8th Cir. 1991) (finding hybrid
right can exist); Salvation Army v. N.J. Dept of Cmty. Affairs,
919 F.2d 183 (3d Cir. 1990) (finding freedom of association is
derivative of free exercise right and rejecting hybrid claim);
Chalifoux v. New Caney Indep. Sch. Dist., 976 F. Supp. 659 (S.D.
Tex. 1997) (finding hybrid right exists); City Chapel Evangelical
Free Inc. v. City of South Bend, 744 N.E.2d 443 (Ind. 2001)
(acknowledging hybrid right claim but remanding for further
findings); Hill-Murray Fed. of Teachers v. Hill-Murray High Sch.,
487 N.W.2d 857 (Minn. 1992) (finding hybrid right claim exists
and compelling interest analysis would apply); Health Serv. Div.
v. Temple Baptist Church, 814 P.2d 130 (N.M. 1991) (acknowledging
hybrid rights language but did not apply to facts of the case);
N.Y. State Emp. Rel. Bd. v. Christ the King Regl High Sch., 682
N.E.2d 960 (N.Y. 1997) (acknowledging hybrid rights language, but
finding it inapplicable); First United Methodist Church of
Seattle v. Hearing Examiner for Seattle Landmarks Pres. Bd., 916
P.2d 374 (Wash. 1996) (finding hybrid right claim for free
exercise and free speech).
39 Cf. Thomas v. Anchorage Equal Rights Commn, 220 F.3d
1134, 1150-51 (9th Cir. 2000) (en banc) (Kleinfeld, J.,
dissenting) (describing the landlords federal hybrid rights claim
as raising a serious question falling somewhere in between two
hypothetical cases in which the results of the Smith test would
seem clear).
40 Swanner determined that these laws applied equally to
all people involved in renting and selling property, and did not
expressly or implicitly disfavor religious groups. Swanner, 874
P.2d at 280.
41 See generally City of Boerne v. P.F. Flores, 521 U.S.
507, 514 (1997).
42 See Brief of Amicus Curiae Alaska State Commission For
Human Rights, Foreman v. Anchorage Equal Rights Commn, S-2677/S-
2716 at 7-19 (July 28, 1988); cf. Foreman v. Anchorage Equal
Rights Commn, 779 P.2d 1199, 1203 (Alaska 1989) (noting that AS
18.80.240(2) permits an owner to rent housing for singles or
married couples only but does not apply to landlord who rented to
all classes of persons and did not purport to rent only to single
people, or only to married people).
43 Indeed, in reply to the state commissions argument that
restrictions like these are permissible under the Supreme Courts
decision in Pittsburgh Press Co. v. Pittsburgh Commn on Human
Relations, 413 U.S. 376, 389 (1973) (any First Amendment interest
otherwise arguably served by advertising commercial proposal is
altogether absent when restriction on advertising is incidental
to valid limitation of commercial activity itself), the landlords
concede that their free speech claim completely depends on the
validity of their free exercise claim: The Landlords agree that
if the government may constitutionally prohibit and legally
sanction their religiously based refusal to rent to unmarried
cohabitators, then their desired speech is illegal, and
Pittsburgh Press controls.
44 Pratt & Whitney, 852 P.2d at 1176.
45 Id. at 1176 (quoting Casey, 505 U.S. at 833).
46 530 U.S. 640 (2000). The landlords also assert the
Courts decision in Dale was foreshadowed by its ruling in Hurley
v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515
U.S. 557 (1995).
47 Pratt & Whitney, 852 P.2d at 1176 (quoting Casey, 505
U.S. at 833).
48 530 U.S. at 646-50.
49 Carlson, 65 P.3d at 859 (internal quotations omitted).
50 Thomas, 220 F.3d at 1141-42 (citations omitted).
