Appendix — Thomas v. Anchorage Equal Rights Commission

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APPENDIX A

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Kevin Tuomas and Joyce BAKER,

Plaintiffs-Appellees,

Vv.

ANCHORAGE Eguat RIGHTS

ComMIssION and the MUNICIPALITY ¥

OF ANCHORAGE, | N c tig

alain = CV-95-0274-HRH

bs CV-95-0275-HRH

Paua HAtey in her official

Capacity as the Executive Director

of the Alaska State Commission

for Human Rights,

Defendant.

—

Kevin Tuomas and Joyce BAKER,

Plaintiffs-Appellees,

Vv.

ANCHORAGE Eguat RIGHTS

Commission and the MUNICIPALITY No. 97-35221

OF ANCHORAGE, D.C. Nos.

Defendants, ( CV-95-0274-HRH

v. CV-95-0275-HRH

Pauta Hatey in her official OPINION

Capacity as the Executive Director :

of the Alaska State Commission

for Human Rights,

| Defendant-Appellant.

a a at ms et acme:

Appeals from the United States District Court

for the District of Alaska

H. Russel Holland, District Judge, Presiding

Argued and Submitted

July 13, 1998—Anchorage, Alaska

Opinion Filed January 14, 1999

Rehearing En Banc Granted and

Opinion Withdrawn October 19, 1999

Argued and Submitted

March 23, 2000—San Francisco, California

En Banc Opinion Filed August 4, 2000

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.

Opinion by Judge McKeown;

Concurrence by Judge O’Scannlain;

Dissent by Judge Kleinfeld

SUMMARY

Civil Litigation and Procedure/Standing

The court of appeals dismissed an action. Sitting en banc,

the court held that a landlord’s constitutional challenge to

state and municipal housing laws is not ripe for review when

the landlord has not been charged with violating the law, and

there is no reasonable or imminent threat of enforcement.

ia |

Appellees Kevin Thomas and Joyce Baker individually

owned residential Tental properties in Anchorage, Alaska.

they had refused to rent to unmarried couples in the past and

that they intended to continue to do so.

Both the State of Alaska and the City of Anchorage

adopted laws that outlawed certain forms of discrimination in

The landlords filed an action against Paula Haley, the Exec-

Reena rector of the Alaska State Commission for Human

lared the provisions unconstitutional as applied, and per-

manently enjoined the State and the City from enforcing the

provisions against the landlords. A divided panel of the Ninth

Circuit Court of Appeals affirmed. The Ninth Circuit consid-

dictional prerequisite is satisfied, courts consider whether the

plaintiffs face a realistic danger of sustaining a direct injury

as a result of the statute’s operation or enforcement, or

whether the alleged injury is too imaginary or speculative to

support jurisdiction.

[2] Neither the mere existence of a proscriptive statute nor

a generalized threat of prosecution satisfies the case or contro-

versy requirement. There must be a genuine threat of immi-

nent prosecution.

[3] In evaluating the genuineness of a claimed threat of

prosecution, courts look to whether the plaintiffs have articu-

lated a concrete plan to violate the law in question, whether

the prosecuting authorities have communicated a

warming or threat to initiate proceedings, and the history of

past prosecution or enforcement under the challenged statute.

[4] A general intent to violate a statute at some unknown

date in the future does not rise to the level of an articulated,

concrete plan. [5] The landlords’ expressed intent to violate

the law on some uncertain day in the future did not qualify as

a concrete plan.

[6] When plaintiffs do not claim that they have ever been

threatened with prosecution, that a prosecution is likely, or

even that a prosecution is remotely possible, they do not

ailege a dispute susceptible to resolution by a federal court.

No action had ever been brought against the landlords to

enforce the marital status provision. There was no specific

threat or even hint of future enforcement or prosecution. Nei-

ther landlord could identify any tenants turned away due to

their marital status and no prospective tenant ever complained

to the state or municipal authorities, formally or informally.

[7] In the twenty-five years that these housing laws had

been on the books, the record did not indicate even a single

criminal prosecution, and of the two reported istances of

civil enforcement, only one raised the issue of freedom of

religion. At most, the past Prosecution factor was a neutral

one.

[8] Any threat of enforcement or prosecution against the

landlords was not reasonable or imminent. The landlords did

judicial decision and the hardship to the parties of withhold-

ing court consideration.

[10] The manner in which the intersection of marital status

discrimination and the First Amendment was presented,

mined a claim of hardship. Forcing the State and the City to

defend the housing laws in a vacuum and in the absence of

any particular victims of discrimination, would cause the

State and the City to suffer hardship if the case were adjudi-

cated now.

Judge O’Scannlain concurred, writing separately to elabo-

rate on the shift in the Ninth Circuit’s ripeness and standing

jurisprudence as set forth in the majority opinion.

Judge Kleinfeld dissented, writing that under Supreme

Court law on standing, the landlords had Standing and their

Case was ripe.

COUNSEL

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 Reli-

gious Liberty Commission.

Mark H. Wittow, Preston Gates & Ellis, Anchorage, Alaska,

for amicus curiae Alaska Civil Liberties Union.

ne .

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 Insti-

tute in Basic Life Principles.

Sevilla CP. 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 Mary-

land.

David K. Flynn, Department of Justice, Washington, D.C., for

Timothy Dowling, Washington, D.C., for amicus curiae Com-

munity Rights Counsel.

Thomas Reilly, Office of the Attorney General, Oakland, Cal-

ifornia, 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.

age Equal Rights Commission has ever initiated an investiga-

tion into the landlords’ rental practices or commenced a civil

enforcement action or criminal prosecution under the chal-

lenged 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 hypothet-

ical and the injury is speculative. Whether viewed through the

lens of standing or ripeness, resolution of the First Amend-

ment issues is premature. Thus, dismissal of this action is

required.’

BACKGROUND

Kevin Thomas and Joyce Baker’ (the “landlords”) individu-

ally 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 tanta-

mount 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

‘Contrary to the view expressed in the concurrence, our decision neither

sbuts the door to pre-enforcement challenges to laws that allegedly

infringe upon constitutional rights, nor does it establish a new approach to

justiciability, which under our precedent requires a balancing of several

factors. Rather, our decision remains true to our precedent, all of which

remains good law.

*Gary Baker, Joyce Baker’s husband, is a party to this action but did not

Participate in this appeal.

age Mun. Code § 5.20.020(A), (B). The laws further prohibit

landlords from inquiring about the marital status of prospec-

tive tenants Or representing to prospective tenants that prop-

erty is not available because of the tenants’ Marital status. See

Alaska Stat. § 18.80.2403), (5); Anchorage Mun. Code

§ 5.20.020(C), (E). Finally, the inance, but not the state

erties to unmarried couples. See Foreman vy. Anchorage Equal

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

ing

injunctive relief under 42 U.S.C. § 1983 and 28 U.S.C.

§ 2201. They claimed the threat of enforcement of the

Marital status provisions of the anti-discrimination laws

gion and free speech. Specifically, they argued that their reli-

gious beliefs precluded them from Tenting to unmarried

couples and that the laws restricted their ability to communi-

the provisions unconstitutional as applied and permanently

enjoined the State and the City from enforcing the provisions

10a

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 avoid-

ance 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 pow-

ets granted the judiciary in Article III of the Constitution. See

US. Const. art. I. Although ripeness, like other justiciability

doctrines, is “not a legal concept with a fixed content or sus-

ceptible 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 II 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 compo-

nent.” We consider each component in turn.

A. Constitutional Component

The constitutional component of the ripeness inquiry is

often treated under the rubric of standing andi, in many cases,

ripeness coincides squarely with standing’s injury in fact prong.*

*The “irreducible constitutional minimum of stamding contains three

elements:” (1) injury in fact; (2) causation; and (3) likelihood that a favor-

able decision will redress the injury. Lujan v. Defenders of Wildlife, 504

U.S. 555, 560 (1992).

il i i

Sorting out where standing ends and ripeness begins is not an

and When, 82 Yale LJ. 1363, 1384 (1973). The. overlap

between these concepts has led some legal commentators to

Suggest that the doctrines are often indistinguishable. See,

crete rather than speculative and hypothetical, the ripeness

inquiry merges almost completely with standing.” Gene R.

Nichol, Jr., Ripeness and the Constitution, 54 U. Chi. L. Rev.

153, 172 (1987).

[1] Whether the question is viewed as one of Standing or

ripeness, the Constitution mandates that prior to our exercise

Statute’s operation or enforcement,” Babbitt v. United Farm

Workers Nat’l Union, 442 U.S. 289, 298 (1979), or whether

the alleged injury is too “imaginary” or “speculative” to sup-

port jurisdiction. Jd. We need not delve into the nuances of

the distinction between the injury in fact prong of standing

and the constitutional component of Tipeness: in this case, the

fies the “case or controvers requirement. See, e.g., San

12a

1126-27 (9th Cir. 1996). In a somewhat circular argument, the

landlords contend that they are presently injured because they

must violate the housing laws to remain true to their religious

beliefs, even though their beliefs counsel against violating

secular law. This argument is essentially another way of say-

' ing that the mere existence of a statute can create a constitu-

tionally sufficient direct injury, a position that we have

rejected before and decline to adopt now. See id. (“ ‘[tjhe

mere existence of a statute . . . is not sufficient to create a case

or controversy within the meaning of Article IIL’ ” (quoting

Stoianoff v. Montana, 695 F.2d 1214, 1223 (9th Cir. 1983))).

Rather, there must be a “genuine threat of imminent prosecu-

tion.” Jd. at 1126.

[3] In evaluating the genuineness of a claimed threat of

prosecution, we look to whether the plaintiffs have articulated

a “concrete plan” to violate the law in question, whether the

prosecuting authorities have communicated a specific warning

or threat to initiate proceedings, and the history of past prose-

cution or enforcement under the challenged statute. Id at

1126-27. Applying these three factors here, we conclude that

the landlords’ claimed injury—their fear of enforcement or

prosecution—fails the constitutional component of the ripe-

ness inquiry.“

[4] Turning to the first prong, it is clear that even if “con-

crete plan” does not mean cast in stone, the Constitution

“The penalties for violating the Alaska statute are both criminal and

civil in nature. Any individual who “willfully engages in an unlawful dis-

criminatory conduct prohibited by this chapter” is guilty of a misdemeanor

and may upon conviction be subject to 2 $500 fine or up to 30 days in jail.

Alaska Stat. § 18.80.270. There are no criminal penalties for a violation

of the ordinance. See Anchorage Mun. Code § 5.30.070 (criminal penalties

limited to willful interference with commission’s investigation). The civil

sanctions for violating the statute and the ordinance are identical. The

Commission may seek injunctive relief, initiate an investigation, hold a

hearing, and/or issue an appealable compliance order. See Alaska Stat.

§ 18.80.100-.145; Anchorage Mun. Code § 5.30.010-.090.

13a

requires something more than a hypothetical intent to violate

the law. Thomas and Baker claim that they have refused to

[5] In San Diego County, we held that a similarly expressed

“intent” to engage in conduct proscribed by the Crime Control

Act failed to demonstrate that the claimed injury — the threat

of prosecution — was reasonable. Id. at 1126-27. “ *{SJuch

“some day’ intentions — without . . . specification of when

the some day will be — do not It a finding of the ‘actual

or imminent’ injury that our cases require.”” Id. at 1127

[6] As for the second factor, a specific threat of enforce-

ment, the record is devoid of any threat — generalized Or spe-

cific — directed toward Thomas and Baker. Although we do

not always require plaintiffs to await arrest or prosecution

before entertaining a challenge to the constitutionality of a

any intent to do so in the future. On this record, the alleged free speech

Violation does not rise to the level of a justiciable controversy.

14a

Statute, see Babbitt, 442 U.S. at 298, the threat of enforcement

must at least be “credible,” not simply “imaginary or specula-

tive.” Jd. “When plaintiffs ‘do not claim that they have ever

been threatened with prosecution, that a prosecution is likely,

or even that a prosecution is remotely possible,’ they do not

allege a dispute susceptible to resolution by a federal court.”

Id. at 298-99 (quoting Younger v. Harris, 401 U.S. 37, 42

(1971)). No action has ever been brought against the landlords

to enforce the marital status provision. There has been no spe-

cific threat or even hint of future enforcement or prosecution.

Nor could there be, as neither Thomas nor Baker can identify

any tenants turned away due to their marital status and no pro-

spective tenant has ever complained to the state or municipal

authorities, formally or informally. In fact, appellant Haley

never heard of either Thomas or Baker before this action was

filed. The threat of enforcement based on a future violation —

which may never occur — is beyond speculation.

[7] The third factor to be considered is the history of

enforcement under the statute. In the twenty-five years that

these housing laws have been on the books, the record does

not indicate even a single criminal prosecution, and of the two

reported instances of civil enforcement, only one raised the

freedom of religion issue presented here. See Swanner v.

Anchorage Equal Rights Comm., 874 P.2d 274 (Alaska 1994)

(holding that enforcement of the anti-discrimination provi-

sions did not violate right to free exercise of religion); Fore-

man v. Anchorage Equal Rights Comm., 779 P.2d 1199

(Alaska 1989) (holding that the marital status provision was

intended to protect unmarried couples).* These enforcement

actions stemmed from complaints filed by acmal, prospective

‘Notably, the opinion does not reveal that the Foremans’ refusal to com-

ply with the laws was premised on their religious beliefs. Moreover,

appellant Haley states in her affidavit that she was employed as a staff

attorney with the Anchorage Equal Rights Commission at the time the

Foreman case was pending and, based on her familiarity with the case,

attests that it did not involve the freedom of religion issues raised by the

landlords here.

i sceeeieiiieaieiiiiiaimmaiiaiil.

15a

tenants. Unlike other cases in which we have held that the

government's “active enforcement” of a Statute rendered the

plaintiff's fear of Prosecution reasonable, Adult Video Ass’n

the alleged discrimination to the enforcement agencies: and

16a

of sustaining a direct injury as a result of the statute’s opera-

tion or enforcement,” Babbitt, 442 U.S. at 298, and thus this

“dispute is not justiciable, because it is not ripe for court

review.” Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 US.

726, 732 (1998).

B. Prudential Component

[9] Even were we to conclude that Thomas and Baker pre-

sent a ripe case or controversy in the constitutional sense, we

would decline to exercise jurisdiction under the prudential

component of the ripeness doctrine. In evaluating the pruden-

tial aspects of ripeness, our analysis is guided by two over-

arching considerations: “the fitness of the issues for judicial

decision and the hardship to the parties of withholding court

consideration.” Abbott Laboratories, 387 U.S. at 149; see also

Hodgers-Durgin v. De La Vina, 199 F.3d 1037, 1040-41 (9th

Cir. 1999) (en banc); San Diego County, 98 F.3d at 1132.

[10] 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.” San Diego County, 98 F.3d at 1132. 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.’ ” American-Arab Anti-Discrimination

Comm. v. Thornburgh, 970 F.2d 501, 511 (9th Cir. 1992)

(quoting W.E.B. DuBois Clubs of America v. Clark, 389 U.S.

309, 312 (1967) (per curiam)).

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17a

We disagree with the landlords that this case is purely

legal. Unlike the situation in Abbott Laboratories, in which

the parties agreed that the constitutionality of the challenged

regulation boiled down to a question of congressional intent,

the issues presented in the landlords’ pre-enforcement chal-

lenge here are not purely legal. See San Diego County, 98

F.3d at 1132 (stating that case “devoid of any facmal context

whatsoever” is not fit for review); American-Arab, 970 F.2d

at 510-11] (stating that case “with many unknown facts” and

a “sketchy record” is not fit for review). Just as a challenge

involving the Sixth Amendment right to counsel was rejected

on ripeness grounds in Portman because the “entire argument

about the effect of the . . . statute rests upon hypothetical situ-

ations and hypothetical clients,” 995 F.2d at 903, so too the

landlords’ claim rests upon hypothetical Situations with hypo-

immigration provisions in American-Arab, the First Amend-

ment challenge presented in this case requires an adequately

developed factual record to render it ripe for our review. That

record, at this point, does not exist.*

[11] Turning to the second consideration — the hardship to

the parties if jurisdiction is withheld — the landlords have not

persuaded us that any hardship will result from deferring reso-

lution of this matter to a time when a real case arises. The

hardship analysis of our ripeness jurisprudence dovetails, in

part, with the constitutional consideration of injury. Although

the absence of any real or imminent threat of enforcement.

“To highlight one example, it is unclear whether the landlords view on

18a

particularly criminal enforcement, seriously undermines any

claim of hardship. 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.

Prudential considerations of ripeness are discretionary, and

here we exercise our discretion to decline jurisdiction over a

dispute that is too remote. At this juncture, neither landlord

has been charged with violating either the statute or the ordi-

nance. Nor is there any reasonable or imminent threat of

enforcement. If and when an enforcement action is brought

against Thomas or Baker, that will be the appropriate time to

raise the constitutional arguments. Postponing judicial review

to a time when the landlords actually face an enforcement

proceeding, or at least an imminent threat of one, poses insuf-

ficient hardship to justify the exercise of jurisdiction now.

CONCLUSION

Because this action is not ripe for judicial review, we

vacate the district court’s decision and remand this case to the

district court with the instruction to dismiss the action without

prejudice.

O’SCANNLAIN, Circuit Judge, concurring:

Today, the court, sitting en banc, commendably reshapes

this circuit’s overly permissive jurisprudence of ripeness and

standing by tightening the requirements for bringing lawsuits.

These requirements are born of Article III of the Constitution;

the same provision that a a their authority con-

strains its use. Standing and ripeness doctrines ensure that an

adequate factual and legal context will sharpen and cabin

judicial decision-making. They preserve the separation of

powers and safeguard democracy by constraining the author-

19a

ity of the unelected judiciary to pass judgment on the acts of

legislatures. Thus, I am delighted to concur in the court’s

admirable retreat to more appropriate restraint, but write sepa-

rately to make explicit what the court fails to elaborate.

The new rule of ripeness and standing promulgated today

boils down to this: potential litigants aggrieved by existing

law—in this case, a state statute and a municipal ordinance—

will be virtually unable to bring pre-enforcement challenges

in this circuit even in the most sensitive First Amendment

context where the laws allegedly burden their freedom of

speech and the free exercise of their religion. A pre-

enforcement challenge is no longer available despite aver-

ments of having broken the law in the past and explicit intent

to violate the law in the future. A pre-enforcement challenge

no longer lies even when the statute has been enforced by the

state Supreme Court within the previous five years and is cur-

rently being enforced against others similarly simated.

Under our case law as it existed until today, these land-

lords’ case was ripe. When the matter was before the three-

judge panel of which I was a member, we applied the letter

and the spirit of our precedents, see Thomas v. Anchorage

Equal Rights Comm’n, 165 F.3d 692, 697-700 (9th Cir. 1999),

withdrawn by 192 F.3d 1208, in concluding that the pre-

enforcement challenge before us, based on the First Amend-

to two factors in the justiciability inquiry: whether a plaintiff

sufficiently alleges plans to violate the law and whether a

plaintiff has demonstrated an adequate history of enforcement

of the law. Notwithstanding suffering reversal of an authored

opinion, I concur in the court’s new approach to justiciability

20a

because I think it is useful to refine the rules governing who

can challenge what when in this circuit.

The majority’s legal analysis quite properly begins by ask-

ing whether the landlords, Kevin Thomas and Joyce Baker,

face a “realistic danger of sustaining a direct injury as a result

of the statute’s operation or enforcement.” Babbitt v. United

Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979).

Where, as here, no prosecution is pending, the controversy is

ripe if they face a “reasonable threat of prosecution.” Ohio

Civil Right Comm’n v. Dayton Christian Schs., Inc., 477 U.S.

619, 625 n.1 (1986). The landlords must demonstrate that

prosecution is at least “remotely possible” and “not imaginary

_ or wholly speculative.” Babbitt, 442 U.S. at 299, 302.

Following our decision in San Diego County Gun Rights

Commission v. Reno, 98 F.3d 1121 (9th Cir. 1996), we look

first to see if the landlords have articulated “concrete plans to

violate the” law. Id. at 1126-27. Here, the court concludes that

the landlords have not done so, finding the present situation

to be virtually identical to the one in San Diego County. But

the situations do differ in one key respect, and, because they

do, the court today cuts back on standing more than it openly

admits.

San Diego County involved a challenge to the Violent

Crime Control and Law Enforcement Act, which restricts the

manufacture, possession, and transfer of semiautomatic weap-

ons. See id. at 1124. It too was a pre-enforcement challenge

by several groups and individuals who alleged that they

wished to engage in activities prohibited by the law. See id.

We concluded that the plaintiffs did not have standing

because they had “not articulated concrete plans to violate

the” law. Jd. at 1127. It was not enough for the plaintiffs to

State that they “wish and intend to engage in activities prohib-

NN Ee

2la

ited by” the law. Jd. The court declares that the same is true

here. :

acts necessary to make plaintiffs’ injury—prosecution under

the challenged statute—materialize [were] almost entirely

within plaintiffs’ own control.” Jd

Baker allege that they have violated the law in the past by

turning away unmarried couples. Unlike the plaintiffs in San

landlords can violate the law is not “almost entirely within

[their] own control.” Jd. As landlords, they cannot control

when an unmarried couple will come to them seeking an

apartment. If they cannot control when the unmarried couples

will come, they cannot control when they will violate the law

by tuming them away. Thus the most that they can do is to

state that they plan to violate the law the very next time they

have the opportunity to do so. This Thomas and Baker have

done. Today, the court demands more; it requires that plain-

tiffs “specify when, to whom, where, or under what circum-

stances.””" But given that the circumstances are not all in their

Control, one would expect that the landlords have done all that

they can.

apartments the landlords own; “under what circumstances?”—when asked

to rent an apartment to two unmarried individuals who are physically inti-

mate. Thus, the only remaining issue is when. "

22a

The court, therefore, does much more than apply San Diego

County—it expands its holding to a new dimension. The court

denies standing where plaintiffs do not control when the vio-

lation occurs, but have done all they can to violate the law.

Even in the context of First Amendment challenges, litigants

who articulate concrete plans to violate the law will not have

done enough to meet the requirements for ripeness and stand-

ing. A declaratory action, which by its very nature occurs

before the plaintiffs are charged with breaking the law, is no

longer viable in this circuit when violating the law depends in

part on the actions of others. After today, plaintiffs in these

situations will have to wait until they get caught, and then

challenge the law as a defense to their prosecution. San Diego

County has been expanded to that logical extent, and I concur.

Next, the court quite properly evaluates whether the statute

has been enforced in the past, but in answering that question

makes new law.

While these landlords have not yet been specifically tar-

geted, the state has enforced the prohibition of discrimination

against unmarried couples in at least two recent published

cases: Swanner v. Anchorage Equal Rights Comm'n, 874 P.2d

274 (Alaska 1994), and Foreman v. Anchorage Equal Rights

Comm'n, 779 P.2d 1199 (Alaska 1989). Given that these two

cases were decided by the Supreme Court of Alaska, it is safe

to assume that other enforcement actions have recently been

brought as well.”

Cryptically, the majority refers to the “notable” fact that the

*The Alaska State Commission on Human Rights is presently engaged

in enforcement action against Alaska Pacific University for alleged dis-

crimination in housing against unmarried couples.

23a

The court’s opinion also overrules, sub silentio, parts of

three of our prior decisions: Adult Video Ass’n v. Barr, 960

F.2d 781, 786 (9th Cir. 1992), vacated sub nom. Adult Video

Ass’n v. Reno, 509 U.S. 917 (1993), reinstated in relevant

part, 41 F.3d 503 (9th Cir. 1994); San Francisco County

Democratic Central Comm. y. Eu, 826 F.2d 814 (9th Cir.

1987), aff'd, 489 U.S. 214 (1989); and Bland v. Fessler, 88

F.3d 729 (9th Cir. 1996). It also casts doubt on the continuing

validity of several of our other precedents. Again, I am

pleased to concur in this clarification of the requirements for

ripeness and standing.

]

are inconsistent, and as the court today sits en banc, Adult

Video has been overruled to that extent.

In Adult Video, a producer of sexually explicit videotapes

“One wonders if Alaskans will be surprised when they read that the

Court operates under the impression that the state authorities almost never

24a

challenged the facial constitutionality of several provisions of

the Racketeer Influenced and Corrupt Organizations Act

(RICO), 18 U.S.C. §§ 1961-1968, as applied to obscenity

offenses. See 960 F.2d at 783-84. Specifically, Adult Video

challenged, on First Amendment grounds, RICO’s authoriza-

tion of pre-trial seizures and post-trial forfeiture. See id. at

784. Because the government had not prosecuted it, Adult

Video had to show a reasonable threat of prosecution in order

to establish standing and ripeness. Specifically, as Adult

Video challenged “more than the Constitutionality of RICO

obscenity prosecutions in and of themselves,” it had to dem-

onstrate that it “face[d] a reasonable threat of pre-trial seizure

or post-conviction forfeiture.” Jd. at 785. The “active prosecu-

tion” which the court’s opinion mentions referred only to

RICO generally, not to the two specific provisions of the act

Adult Video challenged—pre-trial seizures and post-trial for-

feitures. See id.

Pursuing the justiciability inquiry, we noted first that the

government never “conducted pre-trial seizures in RICO

obscenity cases” and that it had disclaimed any interest in

ever doing so. Jd. Yet, we concluded that Adult Video had

standing to challenge that provision of the act. See id. Why?

Because “the statute authorizes such seizures”, “no formal

policy of the Department of Justice prohibits its prosecutors

or officers from pursuing pre-trial seizures, and enforcement

practices may change at any time in any case. Consequently,

Adult Video’s apprehension concerning pre-trial seizure is

reasonable. Therefore, Adult Video does have standing to liti-

gate this claim.” Jd. That was it.

There is no principled distinction between Adult Video and

the facts of this case, and therefore today’s en banc opinion

prevails. Here, the landlords challenge a statute that prohibits

the conduct in which they engage. No formal policy of the

state or the city prohibits their prosecutors from enforcing the

statute to prevent discrimination against unmarried couples. In

fact, the state’s highest court has ruled that the statute places

25a

an affirmative duty on the state human rights commission to

root out discrimination. See Hotel, Motel, Restaurant, Constr.

Camp Employees & Bartenders Union vy. Thomas, 551 P.2d

942, 945 (Alaska 1976) (“[TJhe legislature intended the Com-

mission to be more than a simple complaint-taking bureau;

the statutory scheme constitutes a mandate to the agency to

seek out and eradicate discrimination in . . . the sale, lease, or

‘discounted the relevance of past prosecution practices by stat-

ing that such practices “may change at any time in any case.”

960 F.2d at 785. I am pleased that, after today, prosecution

practices are once again relevant.

In sum, here we have a statute that prohibits the conduct

engaged in and we have the absence of any policy against

enforcement. The Adult Video panel required no more, but the

en banc court does. Adult Video has been overruled to that

extent, and I concur.

Nor can the court’s conclusion that the landlords’ claims

are not ripe despite the history of at least two enforcement

actions be entirely reconciled with Ex. In that case, we held

that a pre-enforcement challenge to provisions of the Califor-

nia Elections Code was justiciable despite the fact that the law

had never been enforced. See 826 F.2d at 821-23. In that case,

we “found justiciability notwithstanding a record of non-

enforcement because . . . the record did not show that the stat-

utes had been ‘commonly and notoriously’ violated.” Jd. at

822 (quoting Poe v. Ullman, 367 US. 497, 502 (1961) (hold-

ing that a challenge to a statute banning contraception was not

justiciable because the law had not been enforced in seventy-

26a

five years)). It was enough in Ex that the law had not fallen

into desuetude.

In this case too, it is clear that the statute has not fallen into

desuetude. Although the landlords allege that they have vio-

lated the statute by turning away unmarried couples, there is

no indication in the record that the statute is “commonly and

notoriously violated.” Jd. Nor is there a lack of enforcement,

which, coupled with open violations of the act, would lead

one to conclude that the state had no intention of enforcing

the law. To the contrary, there is evidence of two enforcement

actions that have gone all the way up to the Supreme Court

of Alaska and the consequent reasonable likelihood of many

more. In Eu, this was sufficient to grant the plaintiffs standing

and make the plaintiffs’ claims ripe. The court’s opinion

makes it clear that this will no longer be enough. Eu has been

overruled to that extent, and I concur.

In Bland, telephone operators and advertisers challenged

the constitutionality of a civil statute regulating telephone

automatic dialing and announcing devices (“ADADs”). See

88 F.3d at 730-31. As the state had not prosecuted the plain-

tiffs, this was a pre-enforcement challenge. In contrast to the

present case, where the state has undertaken at least two pros-

ecutions, in Bland, the state “had never enforced the civil stat-

ute against anyone” in six years. Jd. at 737. Nevertheless, we

stated:

“[w]e are not troubled by the pre-enforcement nature

of this suit. The State has not suggested that the

newly enacted law will not be enforced, and we see

no reason to assume otherwise. We conclude that

plaintiffs have alleged an actual and well-founded

fear that the law will be enforced against them. Fur-

ther, the alleged danger of this statute is, in large

27a

measure, one of self-censorship; a harm that can be

realized even without actual prosecution.”

Id. (quoting Virginia v. American Booksellers Ass’n, 484 U.S.

383, 393 (1988)). In Bland, the state had “not stated affirma-

tively that [it] would not enforce the civil statute,” although

it had stated that the Attorney Generai’s office had “not

brought or indicated that it would bring any action” under the

statute. Id. & n.12. This placed the plaintiff “between the rock

of foregoing the use of his ADADs and the hard place of vio-

lating the law.” Jd.

In this case, the state and the city have not only not dis-

Claimed any interest in ing the statute, but have actually

between the rock of violating their religious beliefs and the

hard place of violating the law.‘ In this case, as in Bland, the

plaintiffs allege that they must alter their conduct in order to

comply with the statute. What was enough for standing in

Blend is no longer enough now.® Bland has been overmuled to

plaintiffs standing. I cannot concur in this dismissive interpretation of the

landlords’ religious belicfs. This is in fact a situation unlike any other. To

producer

impulses that lead him to produce obscenity require him to follow a law

prohibiting such material. Nor did the gun distributors in San Diego

County claim that their desire to follow the gun laws and their desire to

distribute guns sprang from the same beliefs. Thus the landlords present

@ truly unique situation to which the court’s opinion gives short shrift.

“In Bland we also refused to draw any line between criminal or civil

enforcement. See 88 F.3d at 736 n.11. Unlike Bland, the court today

28a

that extent, and I concur.‘

The court begins its opinion by stating that this is a case in

search of a controversy. One wonders, rather, whether this is

a court afraid of a case. No court would eagerly enter the

jurisprudential thicket surrounding the intersection of First

Amendment free exercise concerns and civil rights created by

fair housing laws. Thus we postpone, perhaps serendipitously,

but ineluctably, definitive application of Employment Division

v. Smith, 494 U.S. 872 (1990), and its newly developed hybrid

rights doctrine to what had been deemed a live controversy

arising in one of the states of this circuit. As our three-judge

panel opinion and dissent demonstrate, together with the deci-

sions of our sister circuits, Smith itself is fraught with com-

plexity both in doctrine and in practice. See Thomas, 165 F.3d

at 700-18 (requiring that a free exercise claim based on the

hybrid rights exception must include a colorable claim of

infringement of a companion right), 722-27 (Hawkins, J., dis-

senting) (expressing doubt as to “whether the hybrid rights

exception even exists”); Swanson v. Guthrie Indep. Sch. Dist.

No. I-L, 135 F.3d 694, 700 (10th Cir. 1998) (requiring that a

free exercise claim based on the hybrid rights exception must

include at least a colorable claim of infringement of a com-

panion right); EEOC v. Catholic University of America, 83

*The court’s opinion casts doubt as well on the continuing validity of

Culinary Workers Union Local 226 v. Del Papa, 200 F.3d 614 (9th Cir.

1999). Culinary Workers involved a union’s First Amendment challenge

to a State statute. The statute had not been enforced and the attorney gener-

al’s threat to prosecute was rendered meaningless by her apparent lack of

authority to do so. See id at 617-18.. Nevertheless, we concluded that

whether she actually had prosecutorial authority was irrelevant to the

inquiry of whether the threat of prosecution was “imaginary or wholly

speculative.” Id. at 618. See also Ripplinger v. Collins, 868 F.2d 1043,

1047-48 (9th Cir. 1989) (holding that standing exists for a pre-

enforcement challenge where plaintiffs conducted a business they believed

violated the obscenity laws and only one of the fifteen plaintiffs had ever

even been investigated).

aie maataettiOU te

eee eee LSS

29a

F.3d 455, 467 (D.C. Cir. 1996) (requiring that a free exercise

Seereoased on the hybrid rights exception must include an

exception entirely). Perhaps the upreme Court will have an

cpporninity before the issue arises again in this circuit to

In any event, today the court tightens the requirements for

ripeness and standing in this circuit, reining in those of our

- , po

KLEINFELD, Circuit Judge, dissenting:

I respectfully dissent.

I agree with Judge O’Scannlain that under the law as it

stood until today, plaintiffs had standing and their case was ripe.’

"Thomas v. Anchorage Civil Rights Commission, 165 F.3d 692, 697-700

(9th Cir. 1999); see Bland v. Fessler, 88 F.3d 729, 737 (9th Cir. 1996);

Adult Video Ass'n v. Barr, 960 F.2d 781, 786 (9th Cir. 1992), vacated sub

nom. Adult Video Ass'n v. Reno, 509 U.S. 917 (1993), reinstated in rele-

30a

They still do, under controlling Supreme Court law on stand-

ing.

We cannot and should not shut the courthouse door to these

litigants. The majority takes the position that there is no genu-

ine controversy, because plaintiffs have no genuine and sub-

stantial risk that the law they challenge will be enforced

against them. That proposition is unsupported by the record.

The majority’s discussion about the history of enforcement

does not support its conclusion. The history matters when a

law is in desuetude, but no one claims that this fairly new law

is like some nineteenth century ordinance never enforced in

living memory. This case involves a fairly recent law that pro-

tects rental rights for unmarried couples. What is in desuetude

is not the law, but the old expression “living in sin,” that used

to voice a social consensus condemning what the new law

establishes as a ght. The recent Alaska Supreme Court deci-

sions in closely analogous cases establish, were there any

doubt, that the law is actively enforced.”

The majority’s reference to “some day” intentions, based

on Lujan v. Defenders of Wildlife,* is irrelevant in this case.

That doctrine rejects standing for plaintiffs who, for example,

bring environmental lawsuits on the basis that, although they

have never even been to the place affected by the proposed

development, nevertheless “some day” might want to go

there, and their pleasure would be impaired were the develop-

ment to proceed. For this case to be analogous to the “some

day” environmental cases, it would have to involve a person

who is not a landlord but might some day want to buy an

apartment building, and if he did, would not want to rent to

unmarried couples. Such a person would lack standing. But

*Swanner v. Anchorage Equal Rights Comm'n, 874 P.2d 274 (Alaska

1994); Foreman v. Anchorage Equal Rights Comm'n, 779 P.2d 1199

(Alaska 1989).

*Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).

3la

the plaintiffs in our case already have apartments that they

rent out, and they have discriminated against unmarried cou-

ples, do discriminate, and will discriminate, because of their

religious beliefs about the tenants’ sexual conduct. The land-

lords’ violations of the challenged law are not a “some day”

possibility, but a yesterday, today, and tomorrow reality.

The only factor that cuts against standing is that the plain-

tiffs have not gotten caught. That is not much of a factor in

a First Amendment case. The law is that standing in a First

Amendment case does not have to await enforcement of the

law against that individual. All it takes, as the majority con-

cedes, is “a realistic danger of sustaining a direct injury as a

result of the statute’s operation or enforcement” which is not

“too imaginary” or “speculative” to support jurisdiction.‘ It

does not take much of an imagination to come up with the

idea that these landlords, who have publicly asserted their

presently existing policy of discriminating against unmarried

couples, will get caught by the agency that has the affirmative

duty of seeking out and remedying violations of the law that

prohibits that kind of discrimination.

Here are two of the Supreme Court decisions that require

us to hold the courthouse door open for these plaintiffs. In

both, no enforcement action had been taken against the plain-

tiffs. In Doe v. Bolton, the Supreme Court held that physi-

cians had standing to challenge an abortion law “despite the

fact that the record does not disclose that any one of them has

been prosecuted, or threatened with prosecution, for violation

of the State’s abortion statutes.” The Court distinguished a

case, as I have above, where “with a single exception, no one

had ever been prosecuted” under a “moribund” century-old law.*

“Babbitt v. United Farm Workers Nat’! Union, 442 U.S. 289, 298

(1979).

"Doe v. Bolton, 410 U.S. 179, 188 (1973).

®id.

32a

Likewise, in Babbitt v. United Farm Workers National Union,’

the Court held that a union had standing to challenge a law’s

constitutionality where it alleged that it might inadvertently

violate it, alleged “an intention to continue” in activities that

might violate it, and the state had not “disavowed any inten-

tion” to prosecute, even though the penalty had mever been

applied to the kind of conduct at issue.

As for the majority’s prudential concern about the need for

a record to show just whom plaintiffs propose to discriminate

against," it is hard to take seriously the concern that we do not

know whether plaintiffs mean to discriminate against such

unmarried couples living together as a sister and brother, or

a disabled individual with a resident caretaker of the opposite

sex. Plaintiffs have been perfectly clear that they base their

policy on a religious objection to what used to be called “liv-

ing in sin,” that is, a man and woman sharing quarters in cir-

cumstances where sexual relations could be reasonably

expected without being married to each other.

The Christian landlords in this case have demonstrated a

higher risk of enforcement than the physicians and the labor

union in Doe and United Farm Workers. The defendants

might be able to deprive plaintiffs of standing by disavowing

any intention to prosecute, but they have not. The “disavow”

language in United Farm Workers puts the burden on the gov-

ernmental entity challenging standing to “disavow any inten

tion” to enforce the law in the circumstances. Defendants

have not disavowed any enforcement intentions; for all we

know, they have a case ready to be filed as soon as our man-

date issues.

The majority takes the position that to have standing in a

First Amendment case, a person facing a realistic risk of

"Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298

(1979).

*Slip Opinion at 9511 2.8.

33a

caforcement of an unconstitutional statute has to have already

Violated it and been caught. Plaintiffs have already committed

the violations, and propose to continue, but so far there has

been no enforcement action against them. That is all that is

himself to actual arrest or prosecution to be entitled to chal.

lenge [the] statute.’ *

sean’ majority's stretched standing doctrine arises out of

Pect that under Smith, the no-circumcision law would be

*United Farm Workers Nat'l Union, 442 U.S. at 302 (quoting Steffel v.

Thompson, 415 U.S. 452, 459 (1974)).

“Employment Division v. Smith, 494 U.S. 872 (1990).

"Kissinger v. Board of Trustees, § F 3d 177, 180 (6th Cir. 1993).

cy. Mamas ¥. Anchorage Civil Rights Commission, 165 F.3d 692 (9th

ir. 1999),

34a

in Pierce v. Society of Sisters," because the no-circumcision

law would abridge both the right to rear one’s children in

one’s religion and the free exercise of one’s religion.“

Now the more difficult case, where it is hard to identify a

“hybrid” right. Suppose that a state or municipality prohibited

without exception possession or consumption of alcohol, for

the purpose of dealing with a widespread local problem of

alcoholism and crimes committed by inebriated people. This

law would effectively prohibit Catholics and some Protestants

from celebrating communion. Would such a law be constitu-

tional under Smith, because neutral, without anti-religious ani-

mus, and not “hybrid”? I am troubled by the notion that Smith

definitively answers the question in the negative, though it

may. The Free Exercise Clause is not mere surplusage. It

establishes a constitutional right and has the force of law.

Proper construction requires that the clause be construed to

establish a right other than and in addition to the rights estab-

lished by the Free Speech Clause, the Establishment Clause,

and the Equal Protection Clause.

This case is somewhere in between my two hypothetical

cases. Plaintiffs raise the question of whether the right to

freely exercise one’s religion and the rights to free speech and

to contro] one’s property are hybrid rights like the ones

excepted from Srmith’s neutrality rule. It is a serious question.

They have standing to raise it. They are entitled to an answer.

They genuinely and immediately need to know whether a

constitutionally valid law prohibits them from acting as they

are and have been in the exercise of their religious beliefs. I

do not intimate what the answer should be, but am quite sure

that we are not entitled under the law to slam the courthouse

door on their suit requesting an answer.

“Pierce v. Society of Sisters, 268 U.S. 510 (1925).

“See Smith, 494 U.S. at 881.

35a

APPENDIX B

VOLUME 1 of 2

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Kevin Tuomas and Joyce BAKER,

Plaintiffs-Appellees,

Vv.

ANCHORAGE Eguat RiGHTs No. 97-35220

pereertr tad 7 Tee D.C. No.

Defendants-Appell : oR toe am

and CV-95-0275-HRH

Pauta HALey in her official OPINION

capacity as the Executive Director

of the Alaska State Commission

for Human Rights,

36a

KEvIN Tuomas and Joyce Baker,

Plaintiffs-Appellees,

Vv.

ANCHORAGE EQual RIGHTS No. 97-35221

ComMISSION and the D.C. No

MUNICIPALITY OF ANCHORAGE, ane. 3

CV-95-0274-HRH

Defendants, ° ond

and CV-95-0275-HRH

Pauta HA ey in her official

capacity as the Executive Director

of the Alaska State Commission

for Human Rights,

Defendant-Appellant.

Appeals from the United States District Court

for the District of Alaska

H. Russel Holland, District Judge, presiding

and Submitted

July 13, 1998—Anchorage, Alaska

Filed January 14, 1999

Before: Jerome Farris, Diarmuid F. O’Scannlain and

Michael Daly Hawkins, Circuit Judges.

J O’Scannlain;

"Biswas ty Seep Manas

37a

prohibiting landlords from refusing to rent to unmarried cov-

ples infringes a Christian owner’s rights under the Free Exer-

cise Clause of the First Amendment.

Appellees Kevin Thomas and Joyce Baker own residential

rental properties in Anchorage Alaska. They are Christians

whose religious beliefs allegedly led them to refuse to rent to

unmarried persons who plan to live together.

The State of Alaska and the City of Anchorage both have

laws making it unlawful to refuse to rent real property to a

person because of marital status. Under Alaska law, discrimi-

nation on the basis of marital status includes Thomas’s and

Baker’s discrimination against unmarried couples.

The laws also make it illegal to make an inquiry or record

of the marital status of a prospective renter, or to represent to

a prospective tenant that property is unavailable on the basis

of the lessee’s marital status. The Anchorage ordinance also

prohibits landlords from making, printing, or publishing any

Statement indicating any preference or discrimination based

On marital status.

Thomas and Baker filed a federal declaratory/injunctive

action against appellant Alaska and Anchorage officials,

alleging that enforcement of the state and local

antidiscrimination laws against them would violate their

rights under the Free Exercise Clause of the First Amend-

ment. They also asserted that the laws infringed their compan-

ion right to exclude persons from their property under the

were ripe for review, and that application of the

antidiscrimination laws against them would violate their

rights under the Free Exercise Clause of the First Amend-

ment. Additionally, the court concluded that because the laws

38a

also impacted the landlords’ free speech rights, they presented

a “hybrid rights” case in which a “compelling interest” test

applied. The court permanently enjoined both the State and

the City from enforcing the laws against the landlords. The

State and the City appealed.

[1] Under standing doctrine, because Thomas and Baker

were not presently subject to prosecution, they had to demon-

strate a reasonable threat of prosecution for conduct allegedly

protected by the Constitution. [2] Thomas and Baker articu-

lated concrete plans to violate the Alaska housing laws they

challenged. The laws at issue had been enforced agiainst simi-

larly situated landlords. The state statute had been interpreted

by the Alaska Supreme Court as mandating affirmative action

on the part of the state human rights commission ‘to root out

all vestiges of housing discrimination. [3] Recent emforcement

of the antidiscrimination laws demonstrated that they are not

dead letter. [4] Thomas’s and Baker’s claims appeared to be

justiciable.

[5] The “prudential” component of ripeness ffocuses on

whether there is an adequate record on which to base effective

review. Thomas and Baker admitted that they hhad tumed

away, and continue to turn away, prospective tenants based on

their marital status. The relevant class of potential tenants was

therefore all unmarried couples. [6] The facts essential to a

decision by the court of appeals were undisputed. The parties’

arguments centered on differing interpretations of the relevant

legal standards. Such pure legal questions that require little

factual development are more likely to be ripe than fact-

intensive claims.

[7] The right to free exercise does not relieve am individual

of the obligation to comply with a valid and neutral law of

general applicability on the ground that the law proscribes or

prescribes conduct that his religion prescribes or proscribes.

A law failing to satisfy the requirements of neutrality and gen-

eral applicability must be justified by a compelling govern-

39a

mental interest, and must be narrowly tailored to advance that

interest.

[8] There was no hint that the Alaska laws were drafted

with care to forbid few instances of marital status discrimina-

tion but those occasioned by religious conviction. Nor did the

laws in a selective manner impose burdens only on conduct

motivated by religious belief. There was no indication that

Alaska lawmakers were impelled by a desire to target-or sup-

press religious exercise. The housing laws had the purpose of

preventing discrimination on the basis of marital Status; any

burden on religiously motivated conduct was incidental.

[9] An individual claiming to be within the hybrid rights

exception must make out a colorable claim that a companion

right has been infringed. [10] The colorable Claim standard is

not altogether different from the traditional “likelihood of suc-

cess on the merits” test that governs the issuance of prelimi-

nary injunctive relief. To trigger strict scrutiny, a hybrid-

rights plaintiff must show a fair probability—a likelihood—of

success on the merits of his companion claim.

[11] The Takings Clause does not “provide” the right to

exclude; it merely protects that right from being taken without

just compensation. The relevant inquiry was whether, by for-

bidding Thomas and Baker from refusing to lease or rent the

real property to a person because of marital Status, the state

or municipality had “taken” that right.

[12] There was a “taking” in the literal sense. Insofar as

they were compelled by the laws at issue to entertain the

rental applications of unmarried cohabitants, Thomas and

Baker were prevented from fully exercising their rights to

exclude. However, not every destruction or injury to property

is a “taking” in the constitutional sense. The question whether

a law gives rise to an unconstitutional taking depends on the

nature of the challenged government action.

40a

[13] In judging whether a government regulation of prop-

erty constitutes a “regulatory taking,” a reviewing court must

undertake an essentially ad hoc factual inquiry. Three factors

are particularly important to the regulatory taking calculus:

(1) the economic impact of the regulation on the claimant; (2)

the extent to which the regulation has interfered with distinct

investment-backed expectations; and (3) the character of the

governmental action.

[14] Thomas and Baker did not allege that the laws at issue

interfered with their investment-backed expectations, or oth-

erwise adversely impact their economic interests. [15] How-

ever, the “bottom line” is not the sole measure ofa successful

Takings Clause claim. The Alaska laws at issue may not have

reduced the value of Thomas’s and Baker’s property; how-

ever, the laws interfered with their “dominion” and

“possession” of that property.

[16] Although the Alaska housing laws did not rise to the

level of a permanent physical occupation sufficient to trigger

a per se right to compensation, they authorized a “physical

invasion” of the landlords’ property just the same. Thomas

and Baker made out a substantial argument that the Alaska

laws went too far, and thus a colorable claim that their rights

under the Takings Clause had been infringed. The Fifth

Amendment served to “hybridize” their Free Exercise Clause

challenge to the Alaska statute and the Anchorage ordinance.

[17] The speech restrictions at issue were not aimed solely

at proscribing expression that does not more than propose a

commercial transaction. They went much farther. [18] The

expression contemplated by the Alaska laws was fully pro-

tected religious speech. The prohibited communications did

not have to be presented as part of an advertising format. Nor

did covered statements necessarily have to reference a spe-

cific product. Finally, although a landlord seeking to rent an

apartment would possess an underlying economic motive, it

was religious conviction that would have cause Thomas and

4la

Baker to make the inquiries, records, representations, or com-

munications contemplated by the Alaska laws.

[19] The expression forbidden by the Alaska

antidiscrimination laws was at its essence religious speech,

which enjoys plenary First Amendment protection. Moreover,

both the statute and the ordinance purported to regulate land-

lords’ speech based on its content. Content-based regulations

of expression are presumed invalid under the First Amend-

ment. [20] Thomas and Baker made a colorable claim that the

Alaska housing laws infringed their rights to free speech. The

First Amendment thus “hybridized” their Free Exercise chal-

lenge.

[21] Because Thomas and Baker demonstrated hybrid-

rights claims under the Takings and Free Speech Clauses, it

had to be determined whether government placed a substantial

burden on the observation of a central religious belief or prac-

tice, and if so, whether a compelling governmental interest

justified the burden.

[22] That a free exercise dispute arises from a commercial

context does not in and of itself affect the substantiality of the

claimed burden. [23] Because Thomas and Baker retained the

cash-out option, the Alaska laws might not have made their

free exercise significantly “more expensive.” However,

expense is not the sole consideration in determining whether

a burden is constitutionally substantial. The Alaska housing

laws de facto banished Thomas and Baker from the Alaska

rental market and forced them to forsake their livelihoods as

apartment owners and lessors. The laws did not effect a mere

marginal reduction in business; they put Thomas and Baker

out of business. [24] The laws substantially burdened Thom-

as’s and Baker’s religious rights.

[25] Even substantial burdens of religious exercise may be

justified by a showing that a regulation’s restrictions are nec-

essary to the achievement of some compelling state interest.

42a

Alaska’s purported interest in preventing marital-status dis-

crimination was not sufficiently paramount to satisfy strict

scrutiny.

[26] That courts have not given unmarried couples any spe-

cial consideration under the Equal Protection Clause is potent

circumstantial evidence that society lacks a compelling gov-

ernmental interest in the eradication of discrimination based

on marital status. [27] The Supreme Court has expressly

declined to extend a due process right to live with unrelated

individuals such as unmarried cohabitants, and has

regulations containing distinctions between married and

unmarried couples, bestowing rights on the former it with-

holds from the latter. [28] The overwhelming majority of fed-

eral civil rights laws are silent on the issue of marital-status

discrimination.

[29] Alaska law was likewise unavailing. That Alaska has

granted its citizens a right to obtain housing accommodations

without discrimination because of marital status was irrele-

vant. [30] Even if it were assumed that state law could alone

suffice to create a compelling governmental interest in pre-

venting discrimination against unmarried couples, Alaska’s

would not have met this test. For example the laws under

review contain exceptions for “married-only” housing, and for

space rented in the home of the landlord. Moreover, Alaska

law expressly discriminates against unmarried couples in a

number of contexts. Alaska’s underenforcement of its pur-

ported interest in eradicating marital-status discrimination

could not be regarded as protecting an interest of the highest

order when it leaves appreciable damage to that supposedly

vital interest unprohibited. [31] There was no support for rec-

ognizing a compelling government interest in eradicating

marital status discrimination that would excuse a violation of

the Free Exercise Clause.

[32] Government action violates the Establishment Clause

only if it does not have a secular legislative purpose, its prin-

43a

cipal or primary effect is to advance or inhibit religion, or it

fosters an excessive government entanglement with religion.

Similarly, under the “endorsement” test, courts look to

whether the challenged governmental practice either has the

purpose or effect of endorsing religion.

[33] That the exemption might result in harm to third par-

ties does not materially affect the Establishment Clause calcu-

lus. Establishment Clause jurisprudence concerns itself with

only one kind of harm: the stigmatization of religious minori-

ties. The only palpable injury suffered by an unmarried tenant

turned away by a Christian landlord for religious reasons is a

marginal reduction in the number of apartment units available

for rent. The “harm” to the rejected lessee, if any, is eco-

nomic, not religious; as such, it is beyond the pale of the

Establishment Clause.

[34] By exempting Thomas and Baker from the scope of

the Alaska anti-marital-discrimination laws, the court of

appeals did not “establish” or otherwise endorse Christianity

as an Official state religion. The court’s opinion reflected

nothing more than the governmental obligation of neutrality

in the face of religious differences. The Establishment Clause

does not forbid what the Free Exercise Clause requires.

Judge Hawkins dissented, expressing the view that the case

was unripe for judicial review; there was no support for the

application of strict scrutiny; Thomas and Baker failed to

present a colorable takings claim; and the majority errone-

ously characterized the expressions prohibited by the chal-

lenged laws as religious in nature.

COUNSEL

Cliff John Groh (argued), Assistant Municipal Attorney,

Anchorage Equal Rights Commission, Anchorage, Alaska;

44a

Robert A. Royce (argued), Assistant Attorney General,

Department of Law, Anchorage, Alaska, for the defendants-

appellants.

Kevin G. Clarkson (argued), Brena, Bell & Clarkson, Anchor-

age, 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, Virginia, for the Christian Legal Society, National

Council of Churches, Union of Orthodox Jewish Congrega-

tions, 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, Alaska,

for the Alaska Civil Liberties Union amicus curiae.

Clyde J. Wadsworth, Heller Ehrman White & McAuliffe, San

Francisco, California, for the Lambda Legal Defense and

Education Fund amicus curiae.

Michael P. Seng, Chicago, Illinois, for the John Marshall Law

School Fair Housing Legal Clinic amicus curiae.

Robert J. Barth, Oak Brook, Illinois, for the institute in Basic

Life Principles amicus curiae.

45a

OPINION

O’SCANNLAIN, Circuit Judge:

We must decide whether the enforcement of Alaska hous-

ing laws prohibiting apartment owners from refusing to rent

to unmarried couples infringes Christian landlords’ rights

under the Free Exercise Clause of the First Amendment.

Kevin Thomas and Joyce Baker are owners of residential

rental properties in Anchorage, Alaska.’ Thomas and Baker,

as it tums 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

text’ and in the commentaries of respected Christian theolo-

gians is not disputed by the parties.* 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

"Joyce Baker’s husband, Gary Baker, has elected not to participate in

this appeal or to defend the final judgment that the district court entered

in his favor.

*See, ¢.g., Genesis 2:24 (“For this reason a man will leave his father and

mother and be united to his wife, and they will become one flesh.””); J

Thessalonians 4:3-4 (“It is God’s will that you should be sanctified: that

judge the adulterer and all the sexually immoral.”).

*See, ¢.g., John Calvin, Calvin’s Commentaries: The Epistles of Paul to

the Romans and to the Thessalonians 359 (David W. Torrance & Thomas

F. Torrance, eds., Ross MacKenzie trans., 1960) (“There is nothing more

Opposed to holiness than the impurity of fornication, which corrupts the

whole man.”).

46a

race, persons of either gender, single persons, and separated

or widowed persons, they refuse to rent to unmarried persons

who plan to live together.

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... [rjefuse 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 cohabi-

tants. Nor is there any question that they have vowed to con-

tinue 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 val-

idly 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-Com-

mission 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.‘ On cross-

“The Free Exercise Clause provides: “Congress shall make no law . . .

prohibiting the free exercise [of religion].” U.S. Const. amend. L. The Free

47a

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 applica-

tion 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. 7

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 vari-

ety. 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 sta-

tus 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

“Tipe” for judicial review. See Aema Life Ins. Co. v. Haworth,

300 U.S. 227, 240 (1937). In fact, § 2201 itself calls for “a

case of actual controversy.” Consequently; we must Satisfy

ourselves that “there is a substantial controversy .. . of suffi-

Exercise Clause binds state governments by virtue of its incorporation into

the Fourteenth Amendment. See Cantwell v. Connecticut, 310 U.S. 296, -

_ 303 (1940).

Thomas and Baker also alleged that enforcement of the state and local

laws would run afoul of the Religious Freedom Restoration Act of 1993

(“RFRA”), 42 U.S.C. §§ 2000bb-2000bb-4. The district court found in

favor of the landlords on the basis of RFRA as well as the First Amend-

ment. However, subsequent to the entry of the district court’s order, the

Supreme Court declared RFRA unconstitutional. See City of Boerne v.

Flores, 117 S. Ct. 2157 (1997). Consequently, the arguments on appeal

revolve exclusively around the Free Exercise Clause.

48a

cient immediacy and reality to warrant the issuance of the

declaratory judgment.” Lake Carriers’ Ass’n v. MacMullen,

406 U.S. 498, 506 (1972) (quoting Maryland Cas. Co. v.

Pacific Coal & Oil Co., 312 U.S. 270, 273 (1941)).

[1] The ripeness inquiry “focuses on whether there is suffi-

cient 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 doc-

trine, 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 (1986) (emphasis added).

The Supreme Court has alternately articulated this require-

ment for justiciability as consideration of whether the fear of

prosecution or the alleged threats of prosecution are “not

imaginary or wholly speculative.” See Babbit v. United Farm

Workers Nat’! Union, 442 U.S. 289, 302 (1979); see also Stef-

fel v. Thompson, 415 U.S. 452, 459 (1974) (considering

whether the alleged threats of prosecution “cannot be charac-

terized 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 (1993), reinstated in relevant part, 41 e 3d 503

(9th Cir. 1994),

[2] 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 articu-

lated “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 cohabi-

tants in violation of the Alaska housing laws. Courts have also

pointed to the existence of past prosecutions under the chal-

49a

lenged 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 land-

lords. See, e.g., Anchorage Equal Rights Comm’n v. Swanner,

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).§

Moreover, as the district court observed in finding this case

_ Tipe 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 Employees & Bartend-

ers Union v. Thomas, 551 P.2d 942, 945 (Alaska 1976)

(“[TJhe legislature intended the Commission to be more than

a simple complaint-taking bureau; the Statutory scheme con-

stitutes a mandate to the agency to seek out and eradicate dis-

crimination in . . . the sale, lease, or rental, of real property.”).

[3] We have also analyzed the justiciability of claims like

those of Thomas and Baker by considering whether the laws

in question have fallen into desuetude or should be considered

dead letter. In San Francisco County Democratic Cent. Com.

v. Eu, we concluded that claims may be justiciable, notwith-

Standing a record of non-enforcement of the laws in question,

if the record does not show that the laws in question are dead

letter or have been “commonly and notoriously” violated. See

826 F.2d 814, 821-22 (9th Cir. 1987) (citing Babbit v. United

Farm Workers Nat’l Union, 442 U.S. 289, 302-03 (1979)).

Here, the recent enforcement of the anti-discrimination laws

(as noted above) demonstrates that these laws are not dead let-

SAERC having effectively conceded that the requirements for judicial

notice are met, Thomas and Baker’s Motion Requesting the Court to take

. Judicial Notice of the enforcement proceeding is GRANTED.

50a

ter, nor is there any indication in the record that these laws are

so “commonly and notoriously” violated as to render them

dead letter, Thomas and Baker’s violations notwithstanding.

Moreover, if this court in Eu concluded that claims were justi-

ciable where the law in question had never been enforced, see

826 F.2d at 821-22, we are hard pressed to see how Thomas

and Baker’s claims would not be justiciable where the laws in

question have been and are presently being enforced.

Adult Video Ass’n is instructive on this point. There, we

considered a challenge to provisions of the RICO statue

allowing for pre-trial seizures. See 960 F.2d at 785. Nothing

in the record indicated that the Department of Justice had ever

conducted such seizures, but we concluded that the challenge

was justiciable because the statute authorized such seizures,

“no formal policy of the Department of Justice prohibit[ed] its

prosecutors or officers from pursuing pre-trial seizures, and

enforcement practices may change at any time in any case.”

Id. If this was sufficient to render the claim justiciable in

Adult Video Ass’n, Thomas and Baker’s claim must similarly

be justiciable because they do not rely upon the mere possibil-

ity that “enforcement practices may change” — the anti-

discrimination laws they challenge have been and are pres-

ently being enforced.

[4] The Supreme Court has held that when plaintiffs like

Thomas and Baker wish to engage in conduct proscribed by

Statutes, they may challenge those statutes prior to enforce-

ment where their fear of enforcement or the alleged threats of

enforcement are “not imaginary or wholly speculative.”

Babbit, 442 U.S. at 302; see also Adult Home Video Ass’n,

960 F.2d at 785 (concluding that claim was justiciable

because “apprehension” concerning enforcment was

“reasonable”); Darring v. Kincheloe, 783 F.2d 874, 877 (9th

Cir. 1986) (“[A]n ‘imaginary or speculative’ fear of prosecu-

tion is not enough.”). In view of the facts (1) that Thomas

and Baker continue to violate the antidiscrimination laws,

(2) that the laws have been, and presently are being, enforced

Sla

against similarly situated landlords, (3) that Alaska and

Anchorage authorities are aware of Thomas and Baker’s per-

sistent refusals to rent to unmarried couples, and (4) that the

State human rights commission is under an ongoing and affir-

mative duty to seek out and to punish offending conduct, we

cannot say that Thomas and Baker’s fears of enforcement or

alleged threats of enforcement are “imaginary or wholly

speculative.” Thus, their claims would appear to be justicia-

ble.

This demonstration of a “reasonable threat” may end the

ripeness inquiry. In Adult Video Ass’n, we held that “a conclu-

sion that a reasonable threat of prosecution exists, for pur-

poses of standing, effectively dispenses with any ripeness

problem.” 960 F.2d at 786. AERC insists, however, that a

reviewing court must also determine that the issues before it

are “fit for judicial decision.” San Diego County Gun Rights

Comm., 98 F.3d at 1132. While we agree with Adult Video

Ass’n’s conclusion that a reasonable threat of prosecution

“effectively dispenses with any ripeness problem,” 960 F.2d

at 786, we also believe there can be little dispute that the

issues here are fit for judicial resolution when considered

under the prudential component of the ripeness inquiry. See

Portman, 995 F.2d at 902 (recognizing that “[tJhe ripeness

inquiry contains both a constitutional and a prudential

component”).

[5] The “prudential” component of ripeness “focuses on

whether there is an adequate record upon which to base effec-

tive review.” Portman, 995 F.2d at 903. On that score, AERC

maintains, “[tJhe inadequacy of the factual record below

makes this case unripe for judicial determination.” Indeed, it

contends that facts “critical” to the adjudication of the consti-

tutional questions at issue are absent from the record. AERC

complains, for instance, that there is no evidence in the record

regarding the identity of potential tenants turned away by

Thomas and Baker and that the record does not reveal

Thomas and Baker’s “actual” motivations for refusing to rent

52a

to unmarried individuals. AERC’s “prudential” ripeness argu-

ment misses the mark. The identity of potential tenants is sim-

ply not relevant to any issue bearing on the case. Thomas and

Baker admitted that they have turned away, and continue to

tum away, prospective tenants based upon their marital status.

The relevant class of potential tenants, therefore, is all

unmarried couples. Moreover, Thomas and Baker’s religious

motivations were uncontested in the district court. Nor were

they seriously contested before us.’

[6] We have found issues unripe for review when a deci-

sion “would be devoid of any factual context whatsoever,”

San Diego Gun Rights Comm., 98 F.3d at 1132, or would

“rest[ ] upon [a] hypothetical situation[ ],” Portman, 995 F.2d

at 903. The record in this case suffers from no such grave

defect. There are no “insuperable obstacles,” Rescue Army v.

Municipal Court, 331 U.S. 549, 574 (1947), to our reaching

a decision on the merits of the underlying constitutional

claims. Quite the contrary, as shall become clear in parts

below, we have before us all the facts we need to issue an

informed decision, among them (1) that Thomas and Baker

sincerely believe that cohabitation is a sin, (2) that on that

basis, they have refused, and continue to refuse, to rent to

unmarried couples, in violation of Alaska law, and (3) that

the options available to the landlords are surrendering their

beliefs, violating the law, and giving up their livelihoods in

residential real estate. These facts — the facts essential to our

decision — are, as the district court found, “undisputed.” The

parties’ arguments center not upon differing interpretations of

the record, but instead upon the differing interpretations of the

relevant legal standards. Such “pure legal questions that

require little factual development are more likely to be ripe”

than fact-intensive claims. San Diego Gun Rights Comm., 98

F.3d at 1132.

This simply is not a “sketchy record . . . with many

unknown facts.” American-Arab Anti-Discrimination Comm.

v. Thornburgh, 970 F.2d 501, 510 (9th Cir. 1991). It is, we

53a

conclude, “an adequate record upon which to base effective

review.” Portman, 995 F.2d at 903. We therefore agree with

the district court’s decision insofar as it held the landlords’

claims ripe for judicial review, and now tum to an examina-

tion of those claims.

iit

[7] In Employment Division v. Smith, 494 U.S. 872.(1990),

the Supreme Court reviewed the constitutionality of an Ore-

gon law that criminalized the ingestion of peyote, as applied -

to two individuals who claimed that they used the drug as part

of a religious ceremony of the Native American Church. In

upholding the law against a Free Exercise Clause challenge,

the Court held that “the right of free exercise does not relieve

an individual of the obligation to comply with a ‘valid and

neutral law of general applicability on the ground that the law

proscribes (or prescribes) conduct that his religion prescribes

(or proscribes).’” Id. at 879 (quoting United States v. Lee,

455 U.S. 252, 263 n.3 (1982) (Stevens, J., concurring in the

judgment)). The Court’s holding in Smith has become the

backbone of recent Free Exercise Clause jurisprudence, as

most burdens on religious liberty are not direct and inten-

tional, but rather the largely unintended incident of neutral,

generally applicable regulations.* The Court has made clear,

“Unlike the majority of other courts to address the issue, see, e.g., Ryan

v. United States Dep't of Justice, 950 F.2d 458 (7th Cir. 1991);

Cornerstone Bible Church v. City of Hastings, 948 F.2d 464 (8th Cir.

1991), this court originally construed Smith as applying only to neutral,

generally applicable criminal laws. See American Friends Serv. Comm. v.

Thornburgh, 961 F.2d 1405, 1407 (9th Cir. 1991). Judge Fernandez

expressed his disagreement with what he called this court’s “crabbed

view” of Smith and insisted that Smith’s holding should be understood as

applying to all neutral, generally applicable laws, whether civil or crimi-

nal. See Goehring v. Brophy, 94 F.3d 1294, 1306 (9th Cir. 1996) (Femnan-

dez, J., concurring). Judge Fernandez’s view appears to have prevailed in

practice. Last Term, in City of Boerne v. Flores, 117 S.Ct. 2157 (1997),

the Supreme Court concluded that Congress had exceeded its authority

54a

however, that “[a] law failing to satisfy [the Smith] require-

ments [of neutrality and general applicability] must be justi-

fied by a compelling governmental interest and must be

narrowly tailored to advance that interest.” Church of the

Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 531

(1993).

Citing Lukwmi, Thomas and Baker contend that the statute

and ordinance at issue in this case fail to satisfy Smith’s

requirement that laws be of “general applicability” and are

thus subject to strict First Amendment scrutiny. The Lukwmi

decision involved a series of Hialeah, Florida, ordinances that

the Court found “target[ed]” certain religious practices —

specifically, ritual animal sacrifice — of the Santeria religion.

See id. at 542. The Court concluded that the ordinances were

neither neutral nor generally applicable. See id. at 532-546.

The Court therefore subjected the ordinances to “the most rig-

under § 5 of the Fourteenth Amendment when it passed the Religious

Freedom Restoration Act of 1993 (“RFRA”), 42 U.S.C. § 2000bb-

2000bb-4. Boerne involved a local zoning ordinance — a civil regulation

— that the Fifth Circuit had found invalid under RFRA. The Supreme

Court held that RFRA was, in essence, an impermissible attempt to over-

ride legislatively its decision in Smith. Obviously, in order to invalidate

RFRA on the basis that it did, the Court had to conclude that RFRA was

in conflict with Smith. And in order for such a conflict to exist (at least

in the context of the case before it), the Court had to conclude that Smith,

like RFRA, applicd to civil statutcs and ordinances as well as criminal.

The civil-criminal distinction is not particularly relevant to the analysis

of the Alaska statute’s constitutionality because that statute makes viola-

tion of its terms a misdemeanor, punishable by fine or imprisonment. See

Alaska Stat. § 18.80.270. The precise nature of the Anchorage ordinance

is less certain. Section 5.30.070 does make it a misdemeanor to “willfully

resist{ ], prevent{ ], impede[ ] or interfere[ ] with the equal rights commis-

sion or any of its authorized representatives,” but it is not clear that the

ordinance renders the very act of refusing to rent on the basis of marital

Status criminal. Thus, to the extent that the Anchorage ordinance is a

purely civil statute, the Supreme Court’s implicit determination in Boerne

that Smith reaches civil, as well as criminal, laws is significant, and con-

trols our analysis.

55a

orous of scrutiny” and ultimately voided them as in violation

of the Free Exercise Clause. Jd. at 546.

With respect to the requirement of general applicability, the

Lukumi Court started from the proposition that government

“cannot in a selective manner impose burdens only on con-

duct motivated by religious belief.” Id. at 543 (emphasis

added). Observing that the ordinances contained numerous

exemptions (that seemingly permitted all animal killings

except those of the Santeria), the Court rejected the City’s

claim that the ordinances there at issue advanced the twin

interests of protecting public health and preventing animal

cruelty: “The ordinances are underinclusive for those ends.

They fail to prohibit nonreligious conduct that endangers

these interests in a similar or greater degree than Santeria sac-

rifice does.” Jd. In other words, considering the numerous

exemptions, it was clear that “each of Hialeah’s ordinances

pursued] the city’s governmental interests only against con-

duct motivated by religious belief.” Jd. at 545. The Court thus

concluded that “the ordinances {weJre drafted with care to

forbid few killings but those occasioned by religious

sacrifice.” Id. at 543.

Thomas and Baker claim that, like the ordinances at issue

in Lukwmi, the Alaska laws are “underinclusive and, therefore,

not generally applicable.” Specifically, they point to the fact

that the Alaska statute prohibits “refus[ing] to sell, lease, or

rent the real property to a person because of .. . marital

status” but expressly allows “the sale, lease or rental of

Classes of real property commonly known as housing for ‘sin-

gles’ or ‘married couples’ only.” Alaska Stat. § 18.80.240.

Likewise, they note that the Anchorage ordinance excepts

from its scope landlords who rent Space in “individual

home(s] wherein the renter or lessee would share common

living areas with the owner, lessor, manager, agent or other

person.” Anchorage Mun. Code § 5.20.020. Because, Thomas

and Baker argue, “[b]y way of these laws marital Status dis-

56a

crimination is specifically allowed under certain

circumstances,” the laws are constitutionally suspect.

The underinclusiveness at play in Lukwmi, however, was of

a different constitutional order altogether from that at issue

here. There, “the underinclusion [was] substantial, not

inconsequential.” Lukuwmi, 508 U.S. at 543. There, the ordi-

nances were “drafted with care to forbid few killings but those

occasioned by religious sacrifice.” Jd. Here, in contrast to the

situation in Lukwmi, the “underinclusion” — which consists of

only a single exception per challenged provision — is rela-

tively inconsequential. Boiled down, in Lukwmi, the ordi-

nances applied essentially only to the Santeria; here, the

challenged laws apply essentially to all landlords.

Underinclusiveness is not in and of itself a talisman of con-

stitutional infirmity; rather, it is significant only insofar as it

indicates something more sinister. In Lukiwni, the Court con-

sidered the ordinances’ lack of neutrality and general applica-

_ bility as a proxy of the Hialeah lawmakers’ illicit intention to

single out the Santeria religion for unfavorable treatment. The

Court observed that the pattern of exemptions present in the

Hialeah ordinances betrayed their object as one of suppressing

religious exercise. See id. at 533-46. Because the ordinances

were “designed to persecute or oppress a religion or its

practices,” id. at 547, the Court concluded that the permissive

Smith standard did not apply.

[8] There is no hint that the Alaska laws were “drafted with

care to forbid few [instances of marital status discrimination]

but those occasioned by religious [conviction].” Jd. at 543.

Nor do the laws “in a selective manner impose burdens only

on conduct motivated by religious belief.” Jd. at 543 (empha-

sis added). There is, in sum, no indication that Alaska law-

makers were impelled by a desire to target or suppress

religious exercise. The housing laws, we think, have the pur-

pose of preventing discrimination on the basis of marital sta-

tus; any burden on religiously motivated conduct, even if

57a

substantial, is incidental. Consequently, absent some other

exception, Smith, not Lukwmi, governs the landlords’ claims.

Thomas and Baker insist that the laws here at issue do fall

within the scope of a second exception to Smith: the so-called

“hybrid-rights” exception. In so arguing, they point to the fol-

lowing language from the Court’s opinion in Smith: .

The only decisions in which we have held that the

First Amendment bars application of a neutral, gen-

erally applicable law to religiously motivated action

have involved not the Free Exercise Clause alone,

but the Free Exercise Clause in conjunction with

other constitutional protections, such as freedom of

speech and of the press, see Cantwell v. Connecticut,

310 US., at 304-307 (invalidating a licensing system

for religious and charitable solicitations under which

the administrator had discretion to deny a license to

any cause he deemed nonreligious); Murdock v.

Pennsylvania, 319 U.S. 105 (1943) (invalidating a

flat tax on solicitation as applied to the dissemination

of religious ideas); Follett v. McCormick, 321 U.S.

573 (1944) (same), or the rights of parents, acknow]-

edged in Pierce v. Society of Sisters, 268 U.S. 510

(1925), to direct the education of their children, see

Wisconsin v. Yoder, 406 U.S. 205 (1972) (invalidat-

ing compulsory school-attendance laws as applied to

Amish parents who refused on religious grounds to

send their children to school).

Smith, 494 U.S. at 881 (parallel citations omitted). The Court

in Smith found that the facts of that case did not present “such-

a hybrid situation, but a free exercise claim unconnected with

any communicative activity or parental right.” Id. at 882

(emphasis added).

58a

Thomas and Baker contend that the Alaska housing laws

implicate not only their rights to free exercise, but other con-

stitutional rights as well. Consequently, they argue that their

claims are within the hybrid-rights exception to Smith and

require strict scrutiny. They first claim that the laws’ prohibi-

tions against “refus[ing] to sell, lease[,] or rent” to unmarried

cohabitants, Alaska Stat. § 18.80.240(1); Anchorage Mun.

Code § 5.20.020(A), infringe their nights, grounded in the

Fifth Amendment, to exclude others from their property.

Thomas and Baker also maintain that certain portions of the

housing laws burden their First Amendment free speech

rights. Specifically, they point to the provisions of the laws

that make it unlawful for a landlord to “make a written or oral

inquiry or record” of the marital status of a prospective lessee,

Alaska Stat. § 18.80.240(3); Anchorage Mun. Code

§ 5.20.020(C), or to “represent to a person that real property

is not available for inspection, sale, rental, or lease” on the

basis of the lessee’s marital status, Alaska Stat.

§ 18.80.240(5); Anchorage Mun. Code § 5.20.020(E). The

Anchorage ordinance. also prohibits landlords to “make, print

or publish” any communication or statement indicating any

preference or discrimination based upon marital status.

Anchorage Mun. Code § 5.20.020(G).

Before determining whether the landlords’ hybrid-rights

argument succeeds on the merits, we must decide whether a

hybrid-rights exception to Smith actually exists and, if so,

exactly what a hybrid-rights claim entails. Addressing the

issue, the district court concluded:

These prohibitions . . . impact plaintiffs’ freedom of

speech and bring this case within the purview of

those hybrid cases acknowledged by the Supreme

Court in Smith. Plaintiffs assert a colorable claim

under the First Amendment and the compelling

interest test should be applied.

59a

In a foomote, the court clarified its understanding of the

hybrid-rights exception’s scope: |

Plaintiffs do not contend that they could “carry the

day” with these First Amendment arguments, nor

does the Smith decision imply any such requirement.

Plaintiffs simply assert that their free speech rights

are implicated in this case along with their free exer-

cise rights, and therefore the compelling interest test

Should be used. The court agrees.

Thomas and Baker substantially agree with the district court’s

characterization of the hybrid-rights exception as turing

upon the demonstration of a “colorable claim.” They contend

that it is sufficient to trigger strict Scrutiny that their free

speech and property rights were “burdened.” Appellant Haley,

by contrast, maintains that the “companion” right (the non-

free-exercise half of the hybrid) must itself be constitutionally

“protected,” that is, it must be independently viable.

The Supreme Court has been somewhat less than precise

with regard to the nature of hybrid rights. In Smith, the Court

referred to claims involving the Free Exercise Clause “in con-

junction with” or “[ Jconnected with” other constitutional pro-

tections. Smith, 494 U.S. at 881. Last Term, in City of Boerne

v. Flores, 117 S. Ct. 2157 (1997), the Court paraphrased the

Smith hybrid passage and spoke of cases that “implicated”

other constitutional rights alongside free exercise freedoms.

See id. at 2161. Perhaps not surprisingly in view of the

Supreme Court’s rather cryptic explanations, the courts of

appeals have struggled to decipher Smith’s hybrid-rights for-

mula and have reached divergent conclusions as to exactly

what constitutes a hybrid-rights claim. The First and District

of Columbia Circuits have suggested that Smith mandates the

existence of an independently viable companion right in addi-

tion to free exercise. See EEOC v. Catholic University of

America, 83 F.3d 455, 467 (D.C. Cir. 1996) (holding that an

independent Establishment Clause violation triggered the

60a

hybrid exception); Brown v. Hot, Sexy & Safer Prods., 68

F.3d 525, 539 (ist Cir. 1995) (concluding that the hybrid

exception was not triggered because the plaintiffs had not

shown an independent substantive due process violation). The

Tenth Circuit, on the other hand, requires only a “colorable

claim of infringement,” that is, something less than an out-

right violation of a companion right yet more than a simple

allegation. See Swanson v. Guthrie Indep. Sch. Dist. No. I-L,

135 F.3d 694, 700 (10th Cir. 1998).

We have never explored in any detail the contours of the

so-called hybrid-rights doctrine.’ In undertaking that task

today, we must at the outset confess that none of the contend-

ing interpretations of Smith’s hybrid-rights passage is perfect.

Each, unfortunately, entails certain logical and interpretive

difficulties.* Indeed, faced with what it viewed as the

"When we have discussed hybrid rights under Smith, we have sent

mixed signals. See American Friends Serv. Comm. Corp. v. Thornburgh,

961 F.2d 1405, 1407 (9th Cir. 1992). In American Friends, we initially

characterized a hybrid claim as one “which contains not only a free exer-

cise challenge to government action, but also another substantive constitu-

tional claim as well.” Jd at 1408 (emphasis added). Our suggestion that

a hybrid-rights claim need only “containj]” a non-free-exercise

“challenge” would seem to imply that another right need only be pleaded

alongside a free exercise claim. Other portions of the American Friends

opinion, however, suggest an assumption that perhaps the existence of an

independently viable companion right is a necessary prerequisite to a

hybrid claim. For instance, in so concluding, the American Friends court

observed that the challenge before it was not “based on any cognizable

constitutional claim in addition to its free exercise claim; its claim is there-

fore not ‘hybrid.’ ” Jd at 1409 (emphasis added).

*Proponents and critics of the Smith decision alike have questioned the

Court’s attempted distinction of the so-called hybrid cases and the hybrid-

rights doctrine to which the distinction gave rise. See William P. Marshall,

In Defense of Smith and Free Exercise Revisionism, 58 U. Chi. L. Rev.

308, 309 (1991) (“Its use of precedent borders on fiction.”); Michael W.

McConneil, Free Exercise Revisionism and the Smith Decision, 57 U. Chi.

L. Rev. 1109, 1122 (1990) (“{A] legal realist would tell us . . . the Smith

Court’s notion of ‘hybrid’ claims was not intended to be taken

6la

“complete[ ] illogic[ ]” of the hybrid-rights exception, the

Sixth Circuit opted to ignore it altogether and to proceed as

if Smith applied categorically to all neutral, generally applica-

ble laws incidentally burdening free exercise rights. See Kiss-

inger v. Board of Trustees, 5 F.3d 177, 180 (6th Cir. 1993)

(“[A]t least until the Supreme Court holds that legal standards

under the Free Exercise Clause vary depending upon whether

other constitutional rights are implicated, we will not use a

Stricter test than that used in Smith to evaluate generally appli-

cable, exceptionless state regulations under the Free Exercise

Clause.”). Although undoubtedly the path of least resistance,

there is a salient problem with the Sixth Circuit’s decision

. Simply to throw up its hands in despair: Smith did not overrule

Cantwell, Murdock, Follett, and Yoder; it distinguished them.

Those cases — each of which requires an exemption from a

neutral, generally applicable law (and thus contradicts the

central holding of Smith) — remain on the books and are

binding on lower courts. We are not at liberty to ignore them.

We therefore turn, as we believe we must, to consider the

nature of “hybrid” rights.

We begin our analysis, perhaps paradoxically, with Justice

Souter’s separate concurrence in Lukwmi, in which he roundly

criticized Smith’s notion of hybrid-rights:

seriously.”). One commentator speculated regarding Smith's hybrid-rights

analysis thusly: “Justice Scalia bad only five votes. He apparently believed

he couldn’t overrule anything, and so he didn’t. He distinguished every-

thing away instead.” Douglas Laycock, Free Exercise and the Religious

Freedom Restoration Act, 62 Fordham L. Rev. 883, 902 (1994). As an

intermediate court of appeals charged with resolving a specific contro-

versy, we lack the luxury that the ivory tower provides. Our job is not to

critique or to deconstruct; ours is to make sense of a confusing doctrinal

situation — to make the pieces fit.

62a

[T]he distinction Smith draws strikes me as ulti-

mately untenable. If a hybrid claim is simply one in

which another constitutional right is implicated, then

the hybrid exception would probably be so vast as to

swallow the Smith rule, and, indeed, the hybrid

exception would cover the situation exemplified by

Smith, since free speech and associational rights are

certainly implicated in the peyote ritual. But if a

hybrid claim is one in which a litigant would actu-

ally obtain an exemption from a formally neutral,

generally applicable law under another constitutional

provision, then there would have been no reason for

the Court in what Smith calls hybrid cases to have

mentioned the Free Exercise Clause at all.

Lukumi, 508 U.S. at 567 (Souter, J., concurring). In other

words, according to Justice Souter, the application of the

hybrid-rights exception can turn neither upon the fact that a

companion right is “implicated” (else the central holding of

Smith vanishes) nor upon the existence of a fully protected,

independently viable companion right (else the Free Exercise

Clause itself vanishes).

Justice Souter was clearly correct, we think, to reject an

independently-viable-rights theory of hybrid rights. We

acknowledge that, in siding with Justice Souter, we part com-

pany with two of our sister circuits. See Catholic University

of America, 83 F.3d at 467; Hot, Sexy & Safer, 68 F.3d at 539.

rights. See Yoder, 406 U.S. at 214, 215, 218, 219-220 (allud-

ing to the Free Exercise Clause); Follett, 321 U.S. at 576, 577

(same); Murdock, 319 U.S. at 107, 108, 111, 114, 115 (same);

Cantwell, 310 U.S. at 300, 303, 305, 307 (same). We will not

lightly presume that, in specifically and continually invoking

63a

the Free Exercise Clause, the Supreme Court was wasting its

breath. Just as we do when faced with a declaration of the leg-

islative department, see, e.g., Park N’ Fly, Inc. v. Dollar Park

& Fly, Inc., 469 U.S. 189, 194 (1985) (“Statutory construction

must begin with the language employed by Congress and the

assumption that the ordinary meaning of that language accu-

rately expresses the legislative purpose.”), we must take a

judicial pronouncement at face value. We will not speculate

or hypothesize about the Justices’ “true” intentions; rather, we

will assume that those intentions are expressed in the words

the Justices carefully chose to express the opinion of the

Court. When the Court said “Free Exercise Clause,” it meant

it. 7

We also agree with Justice Souter’s observation that ‘the

mere fact that a companion right is “implicated” cannot serve

as the touchstone for heightened scrutiny. Government action

_ will almost always “implicate” a host of constitutional rights,

even though it does not seriously threaten, much less violate,

any of them. Hence, under a permissive “implication” stan-

dard, rarely if ever would a neutral, generally applicable law

be subject to the general rule of Smith (including, as Justice

Souter pointed out, the Oregon law at issue in Smith itself).

The same conclusion follows a fortiori if all that is needed to

trigger strict scrutiny is the mere allegation of a companion

right.

[9] Although we accept Justice Souter’s premises, we can-

not subscribe to his ultimate conclusion — that the hybrid-

rights doctrine is “untenable.” Instead, we believe that the

best understanding of Smith actually suggests an approach to

hybrid-rights claims that falls somewhere between the two

extremes marked out by Justice Souter. That is to say, an indi-

vidual claiming to be within the hybrid-rights exception may

not rest upon a bald assertion that a companion right exists or

the fact that a companion right is somehow “implicated” by

a government policy. Nor, however, is he required to show

that the law he challenges is invalid under a companion provi-

64a

sion alone, without regard to the Free Exercise Clause. Like

our colleagues on the Tenth Circuit, and like the district court

here, we conclude that a plaintiff invoking Smith’s hybrid

exception must make out a “colorable claim” that a compan-

ion right has been infringed. See Swanson, 135 F.3d at 700.

[10] To be sure, a “colorable claim” standard does not pro-

vide the exactitude of an allegation-only standard or an

independently-viable-rights standard; it will require courts

reviewing free exercise claims to make difficult, qualitative,

case-by-case judgments regarding the strength of companion-

claim arguments. The term “colorable” certainly is not mean-

ingless, however. Webster’s provides what we think is a use-

ful explanation, defining colorable to mean “seemingly valid

and genuine.” Webster’s Third New International Dictionary

449 (1986). Nor is the word “colorable” a term without legal

pedigree. For instance, in habeas cases not governed by the

Antiterrorism and Effective Death Penalty Act of 1996, Pub.

L. No. 104-132, 110 Stat. 1214, Supreme Court precedent dic-

tates that courts need only entertain successive petitions in

which the prisoner supplements his constitutional claim with

a “colorable showing of factual innocence.” Kuhlmann v. Wil-

son, 477 U.S. 436, 454 (1986). In Kuhlmann, the Supreme

Court explained its colorable-showing standard as requiring

that the petitioner demonstrate a “fair probability” that “the

trier of facts would have entertained a reasonable doubt of his

guilt.” Id. at 454 n.17 (quoting Henry J. Friendly, Js Inno-

cence Irrelevant? Collateral Attack on Criminal Judgments,

38 U. Chi. L. Rev. 142, 160 (1970)) (internal quotation marks

omitted). Similarly, only recently, the Supreme Court

observed that a defendant seeking to obtain discovery on a

selective prosecution claim must establish a “colorable basis”

for the claim, and acknowledged a consensus among courts of

appeals that the colorable-basis standard “require[s] some evi-

dence tending to show the existence of the essential elements

of the defense.” United States v. Armstrong, 517 U.S. 456,

468 (1996); accord United States v. Bourgeois, 964 F.2d 935,

938-39 (9th Cir. 1992). Courts engage in similarly complex,

65a

fact-sensitive inquiries in other contexts, albeit without specif-

ically employing the term “colorable.” See, e.g., Equal Access

to Justice Act (“EAJA”), 28 U.S.C. § 2412(d)(1)(A) (stating

that the determination whether to award fees to a prevailing

party in a civil case brought by or against the United States

depends upon whether the government’s position, although

incorrect, was “substantially justified”); Pierce v. Underwood,

487 U.S. 552, 565 (1988) (interpreting EAJA’s “substantially

justified” language to mean having a “reasonable basis in both

law and fact”). Indeed, the colorable-claim standard we adopt

today for evaluating hybrid-rights claims is not altogether dif-

ferent from the traditional “likelihood of success on the

merits” test that governs the issuance of preliminary injunc-

tive relief. See Coalition for Economic Equity v. Wilson, 110

F.3d 1431, 1438 (9th Cir. 1997) (“A preliminary injunction

may issue ‘if the movant has shown either a likelihood of suc-

cess on the merits and the possibility of irreparable injury, or

that serious questions are raised and the balance of hardships

tips sharply in the movant’s favor.’ ” (quoting Armstrong v.

Mazurek, 94 F.3d 566, 567 (9th Cir. 1996))). Consequently,

although not perfectly precise, the colorable-claim test is not

standardless. Rather, despite subtle variations, there is, we

think, a certain “center of gravity” to these formulations that

informs our understanding of what it means to state a

“colorable” claim: In order to trigger strict scrutiny, a hybrid-

rights plaintiff must show a “fair probability” — a

“likelihood” — of success on the merits of his companion

claim.

Furthermore, particularly in view of the interpretive diffi-

culties surrounding Smith’s hybrid-rights passage, we believe

that any hybrid rule’s administrability must play second fiddle

to its consistency with Supreme Court precedent. And on that

score, a colorable-claim standard is clearly superior to the

alternatives. It avoids the pitfalls of both the more permissive

“implication” and “allegation-only” tests and the more exact-

ing “independently-viable-rights” test identified by Justice

Souter. Under an implication standard, the claims raised in

66a

Smith would themselves have been within the scope of the

hybrid-rights exception (not the general rule), since free

speech rights “are certainly implicated in the peyote ritual,”

Lukumi, 508 U.S. at 567 (Souter, J., concurring) (emphasis

added). An implication standard thus renders the result in

Smith — that no hybrid claim was demonstrated and that strict

scrutiny was therefore inapplicable — a non sequitur. The

colorable-claim standard we adopt engenders no such prob-

lem. The plaintiffs in Smith could not have made out a

“colorable claim of infringement” with respect to their free

speech rights. Ingesting peyote is certainly not “speech” in the

traditional sense; at best, it is “expressive conduct.” And the

only cases in which the Supreme Court has invalidated laws

regulating expressive conduct are those in which it has con-

cluded that the government has prohibited such conduct

“precisely because of its communicative attributes.” Barnes v.

Glen Theatre, Inc., 501 U.S. 560, 576 (1991) (Scalia, J., con-

curring in the judgment) (citing United States v. Eichman, 496

U.S. 310 (1990), Texas v. Johnson, 491 U.S. 397 (1989),

Spence v. Washington, 418 U.S. 405 (1974), Tinker v. Des

Moines Indep. Comm. Sch. Dist., 393 U.S. 503 (1969), Brown

v. Louisiana, 383 U.S. 131 (1966), and Stromberg v. Califor-

nia, 283 U.S. 359 (1931)). There was no serious argument in

Smith that the Oregon legislature had targeted the respon-

dents’ use of peyote because of the message it conveyed.

Hence, given a colorable-claim standard of hybrid rights,

Smith was decided exactly as it should have been. On the

other hand, whereas an independently-viable-rights interpreta-

tion of hybrid rights cannot reasonably explain the Supreme

Court’s repeated allusions to the Free Exercise Clause in

Cantwell, Murdock, Follett, and Yoder, a colorable-claim

standard jibes perfectly with the Court’s side-by-side refer-

ences to the Free Exercise Clause and free speech and sub-

stantive due process rights in those cases. Consequently,

among the potential approaches to hybrid rights, only a

colorable-claim standard accounts both for Smith (which an

seminal aie la ad

67a

implication standard cannot) and for the original hybrid cases

(which an independently-viable-rights standard cannot).

_ Because, under the rule we announce today, a free exercise

plaintiff must make out a “colorable claim” that a companion

right has been violated — that is, a “fair probability” or a

“likelihood,” but not a certitude, of success on the merits —

neither the central holding of Smith nor the Free Exercise

Clause is rendered without substantive bite. Our colorable-

claim standard is therefore neither too lax nor too strict, but

“just right.”

We now tum to consider whether Thomas and Baker have

demonstrated a “colorable- claim of infringement” with

respect to their so-called companion rights. Recall that they

complain that the laws infringe their Fifth Amendment “Tight

to exclude” and their First Amendment right to free speech.

Because the landlords’ principal complaint is that the Alaska

laws purport to require them actually to rent to unmarried

cohabitants, we consider the Fifth Amendment claim first.

{11] Thomas and Baker contend that the Takings Clause of

the Fifth Amendment,’ “provides a property owner constitu-

tional protection to exclude others from the owners (sic)

property.” It is true that the Supreme Court has “repeatedly

held that . . . the right to exclude [others is] ‘one of the most

essential sticks in the bundle of rights that are commonly

characterized as property.’” Nollan v. California Coastal

*The Takings Clause provides: “[NJor shall private property be taken

for public use, without just compensation.” U.S. Const. amend. V. The

Takings Clause applies to the States through the Fourteenth Amendment.

See Chicago, Baltimore & Quincy R.R. Co. v. Chicago, 166 U.S. 226, 239

(1897).

68a

Comm’n, 483 U.S. 825, 831 (1987) (quoting Loretto v. Tele-

prompter v. Manhattan CATV Corp., 458 US. 419, 433

(1982) (quoting Kaiser Aetna v. United States, 444 US. 164,

176 (1979))); accord 2 William Blackstone, Commentaries on

the Laws of England *8 (“[O}ccupancy gave the right to...

exclude[ ] every one else but the owner from the use of it.”).

Technically speaking, however, the Takings Clause does not

“provide” the right to exclude; it merely protects against that

right being “taken . . without just compensation.” The rele-

vant inquiry, therefore, is not whether Thomas and Baker pos-

sess a right to exclude others from their rental properties.

They do. The question is whether, by forbidding them from

“refus[ing] to sell, lease[,] or rent the real property to a person

because of . . . marital status,” the State (or the municipality,

as the case may be) has “taken” that right.

[12] There has, of course, been a “taking” in the literal

sense. Insofar as they are compelled by the laws at issue to

entertain the rental applications of unmarried cohabitants,

Thomas and Baker are prevented from fully exercising their

rights to exclude. See Pruneyard Shopping Center v. Robins,

447 U.S. 74, 82 (1980). However, “not every destruction or

injury to property by governmental action has been held to be

a ‘taking’ in the constitutional sense.” Armstrong v. United

States, 364 U.S. 40, 48 (1960). The question whether a law

gives rise to an unconstitutional taking depends upon the

nature of the challenged government action. As the

Court explained in Yee v. City of Escondido, 503 U.S. 519

(1992), Takings Clause cases generally fall into one of two

categories:

Where the government authorizes a physical occupa-

tion of property (or actually takes title), the Takings

Clause generally requires compensation. See, ¢.z.,

Loretto v. Teleprompter Manhattan CATV Corp.,

458 U.S. 419, 426 (1982). But where the government

merely regulates the use of property, compensation

is required only if considerations such as the purpose

69a

of the regulation or the extent to which it deprives

the owner of the economic use of the property sug-

gest that the regulation has unfairly singled out the

property owner to bear a burden that should be borne

by the public as a whole. See, ¢.g., Penn Central

Transportation Co. v. New York City, 438 U.S. 104,

123-125 (1978). The first category of cases requires

courts to apply a clear rule; the second necessarily

entails complex factual assessments of the purposes

and economic effects of government actions.

Id. at 522-23 (parallel citations omitted).

In Yee, a group of mobile home owners challenged the con-

stitutionality of a local rent control ordinance. Viewed in con-

junction with California’s Mobilehome Residency Law, Cal.

Civ. Code Ann. § 798, they argued, the ordinance unconstitu-

tionally required the owners to submit to a permanent physi-

cal occupation of their property under the Loretto line of

cases. The Supreme Court, however, rejected their claim. Sig-

nificantly, the Court expressly rejected the notion, urged by

the landowners, that they possessed a per se Takings Clause

right to “choose their incoming tenants.” Jd. at 530-31.

Rather, the Court acknowledged, “[wJhen a landowner

decides to rent his land to tenants, the government may .. .

require the landowner to accept tenants he does not like . . .

without automatically having to pay compensation.” Id. at

529 (citing Heart of Atlanta Motel, Inc. v. United States, 379

U.S. 241, 261 (1964)) (emphasis added).

The Yee Court’s holding, however, was narrow. The Court

simply concluded that because the mobile home owners had

Nee ee ee ne Snr eenmneion by thers,

- [they could not] assert a per se right to compensation based

on their inability to exclude particular individuals.” Jd. at 531.

The Court expressly acknowledged that a landlord’s inability

to choose his tenants “may be relevant to a regulatory taking

argument, as it may be one factor a reviewing court would

70a

wish to consider in determining whether the ordinance

unjustly imposes a burden on [a] petitioner[ ] that should “be

compensated by the government, rather than remain[ing] dis-

proportionately concentrated on a few persons.’ ” Id. at 531

(quoting Penn Central Transp. Co. v. City of New York, 438

U.S. 104, 124 (1978)) (emphasis added).”

[13] In judging whether a government regulation of prop-

erty constitutes a “regulatory taking,” a reviewing court must

undertake an “essentially ad hoc, factual inquir[y].” Kaiser

Aetna v. United States, 444 U.S. 164, 175 (1979). The

Supreme Court has, however, recognized three factors as par-

ticularly important to the regulatory-taking calculus: (1) the

economic impact of the regulation on the claimant, (2) the

extent to which the regulation has interfered with distinct

investment-backed expectations, and (3) the character of the

governmental action: See Eastern Enterprises v. Apfel, 118

S. Ct. 2131, 2135 (1998); Penn Central, 438 US. at 124.

[14] Thomas and Baker have not alleged that the laws at

issue interfere with their investment-backed expectations or

otherwise adversely impact their economic interests. Nor

could they, it would seem, at least absent a showing that, by

renting to unmarried couples in accordance with the chal-

lenged laws, their net number of “units rented” would go

down. Common sense would appear to dictate the opposite

conclusion: A rule requiring a landlord to rent to a certain

class of otherwise disqualified people would enlarge the pool

of prospective renters, and thus perhaps increase — but cer-

tainly not decrease — his bottom line by reducing the likeli-

hood that any given apartment would remain vacant.

[15] The Supreme Court has consistently acknowledged,

however, that the “bottom line” is not the sole measure of a

The Court in Yee did not squarely address the regulatory-takings issue

because it was not “fairly included in the question on which [the Court)

granted certiorari.” Yee, 503 U.S. at 533.

Tla

right to possess, use and dispose of it.” Phillips v. Washington

Legal Found., 118 S. Ct. 1925, 1933 (1998) (quoting United

States v. General Motors Corp., 323 U.S. 373, 380 (1945))

(internal citations omitted). The Alaska laws may not reduce

the monetary value of Thomas and Baker’s property; how-

ever, there can be no doubt that the laws interfere with the

landlords’ “dominion” and “posess{ion]” of that property.

[16] Under the “character-of-the-regulation” prong of the

regulatory takings ysis, “[a] ‘taking’ may more readily be

found when the interference with property can be character-

ized as a physical invasion by government than when interfer-

ence arises from some public program adjusting the benefits

and burdens of economic life to promote the social good.”

Penn Central, 438 U.S. at 124. Although the Alaska housing

laws do not, under Yee, rise to the level of a permanent physi-

cal occupation sufficient to trigger a per se right to compensa-

tion, they authorize a “physical invasion” of the landlords’

Property just the same. We thus conclude that Thomas and

Baker have made out a substantial argument that the Alaska

laws “go[ ] too far,” Pennsylvania Coal Co. v. Mahon, 260

U.S. 393, 415 (1922), and, thus, a colorable claim that their

rights under the Takings Clause of the Fifth Amendment have

been infringed. Hence, the Fifth Amendment serves to

“hybridize” their Free Exercise Clause challenge to

$ 18.80.240(1) of the Alaska statute and § 5.20.020(A) of the

72a

With respect to Thomas and Baker’s free speech challenge,"

Haley contends that the expression at issue in this case is

“constitutionally unprotected” commercial speech. Although

so-called commercial speech is not outside the scope of the

First Amendment, the Supreme Court has made clear that

“(t]he Constitution . . . affords a lesser protection to commer-

cial speech than to other constitutionally guaranteed

expression.” United States v. Edge Broadcasting Co., 509

U.S. 418, 426 (1993). Consequently, “[bJecause the degree of

protection afforded by the First Amendment depends upon

whether the activity sought to be regulated constitutes com-

mercial or non-commercial speech, we must first determine

the proper classification of the [expression] at issue here.”

Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 66 (1983).

There is no litmus test for distinguishing commercial from

noncommercial expression. Indeed, the Supreme Court itself

has acknowledged that the “precise bounds” of commercial

speech are “subject to doubt.” Zauderer v. Supreme Court of

Ohio, 471 U.S. 626, 637 (1985). Until relatively recently, the

Court seemed to treat commercial speech as if it entailed both

a “core” and a “periphery.” Inside the core was expression

that did “no more than propose a commercial transaction.”

Virginia Pharmacy Board v. Virginia Citizens Consumer

Council, Inc., 425 U.S. 748, 762 (1976); see also Bolger, 463

U.S. at 66 (dubbing speech that “does no more than propose

a commercial transaction” the “core notion” of commercial

speech). Core commercial speech included “advertising pure

and simple,” Zauderer, 471 U.S. at 637, as well as other

"The Free Speech Clause provides: “Congress shall make no law . . .

abridging the freedom of speech . . . .” The Free Speech Clause applies

to the States through the Fourteenth Amendment. See Gitlow v. New York,

268 U.S. 652, 666 (1925).

73a

expression reducible to the formula, “I will sell you the X at

the Y price,” Virginia Pharmacy, 425 U.S. at 762. Speech

outside the core, the Court held, “present[ed] a closer [First

Amendment] question.” Reviewing courts therefore had to

“examine[ ] carefully” restrictions that transcended the core of

commercial speech “to ensure that speech deserving of greater

constitutional protection [was] not inadvertently suppressed.”

Bolger, 463 U.S. at 66. As a guide, the Supreme Court in

Bolger set out three indicia of non-core commercial speech:

(1) an advertising format; (2) a reference to a specific prod-

uct; and (3) an underlying economic motive of the speaker.

See Bolger, 463 U.S. at 67.

In recent years, the Court appears quite self-consciously to

have pared down the definition of commercial speech. In City

of Cincinnati v. Discovery Network, Inc., 507 U.S. 410

(1993), the Court renounced as too broad its earlier character-

ization of commercial speech in Central Hudson Gas and

Electric Corp. v. Public Service Commission, 447 U.S. 557,

561 (1980), as any “expression related solely to the economic

interests of the speaker and its audience.” See Discovery Net-

work, 507 U.S. at 422 (“We did not . . . use that definition in

either Bolger v. Youngs Drug Products Corp., 463 U.S. 60

(1983), or in Board of Trustees of State University of N.Y. v.

Fox, 492 U.S. 469 (1989).” (parallel citations omitted)). The

Court in Discovery Network also cast serious doubt upon

Bolger’s bifurcated core-periphery framework. See id. at 423.

The Court strongly suggested that the only type of expression

that is “commercial” in the constitutional sense is that which

does “no more than propose a commercial transaction.” Citing

its decision in Fox, the Court held that “the proposal of a

commercial transaction [is] ‘the test for identifying commer-

cial speech.’ ” Jd. (quoting Fox, 492 U.S. at 473-74) (empha-

sis in Discovery Network).

[17] It seems clear enough that the speech restrictions at

issue in this case are not aimed solely at proscribing expres-

sion that does “no more than propose a commercial

74a

transaction.” Rather, they’ go much farther, and make it

unlawful for a landlord (1) to “make a written or oral inquiry

or record” of the marital status of a prospective lessee, (2) to

“fepresent to a person that real property is not available for

inspection, sale, rental, or lease” on the basis of the lessee’s

marital status, or (3) to “make, print or publish” any commu-

nication or statement indicating any preference or discrimina-

tion based upon marital status. Alaska Stat. § 18.80.240;

Anchorage Mun. Code § 5.20.020. This simply is not a case

of “I will sell you X at the Y price.” Virginia Pharmacy, 425

U.S. at 762. Under Discovery Network, that observation alone

suffices to classify the expression as non-commercial.

[18] Even were we to assume that Bolger’s bifurcated anal-

ysis survived Discovery Network and thus remained a viable

approach to defining commercial speech, we would nonethe-

less be compelled to conclude that the expression contem-

plated by the Alaska laws is not mere commercial speech, but

fully protected religious speech. None of the three factors out-

lined in Bolger is applicable here. The communications pro-

hibited by the Alaska laws need not be presented as part of an

“advertising format” to fall within the laws’ scope. Nor would

covered statements necessarily have to reference a “specific

product.” Finally — and, we think, most importantly —

although a landlord seeking to rent an apartment would,

almost by definition, possess an underlying “economic

motive,” it is religious conviction, not economics, that would

cause Thomas or Baker (or any other similarly situated land-

lord) to make the inquiries, records, representations, or com-

munications contemplated by the Alaska laws. Indeed, far

from emanating from any pecuniary motive, a landlord’s

Statement, “I prefer not to rent to unmarried couples,” runs

directly counter to his economic interests. A Christian land-

lord in Thomas and Baker’s position has a distinct economic

disincentive to speak up about his opposition to non-marital

cohabitation. By expressing his beliefs, he runs the risk of los-

ing a prospective tenant and leaving a vacant apartment

unrented. When he speaks up anyway, he does so, not for eco-

75a

nomic reasons, but out of religious conviction. We recognize,

of course, that the Bolger Court did not envision its decision

as establishing a hard-and-fast formula for identifying non-

_ Core commercial speech; none of the factors is either neces-

sary or sufficient to a determination that any given speech is

“commercial.” See Bolger, 463 U.S. at 67 & 0.14. However,

just as the Court in Bolger deemed the simultaneous presence

of all three factors to be persuasive evidence that the speech

“Even were we to assume that the Alaska laws did primarily target

commercial speech, we would not review them under the deferential

76a

[19] Here, the expression forbidden by the Alaska anti-

discrimination laws is, at its essence, religious speech, which

enjoys plenary First Amendment protection. See, e.g., Lamb’s

Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S.

384, 393-94 (1993). Moreover, there can be no doubt that

both the Alaska statute and the Anchorage ordinance purport

to regulate landlords’ speech based upon its content. Under

the laws, apartment owners and lessors are permitted to make

inquiries, representations, and statements regarding some sub-

jects, such as a prospective lessee’s annual income, but not

others, such as the lessee’s marital status. “It is axiomatic that

the government may not regulate speech based on its substan-

tive content or the message it conveys.” Rosenberger v. Rec-

tors & Visitors of the University of Virginia, 515 U.S. 819

(1995) (citing Police Dep’t of Chicago v. Mosley, 408 U.S.

92, 96 (1972). Indeed, content-based regulations of expression

are presumed invalid under the First Amendment. See R.A.V.

v. City of St. Paul, 505 U.S. 377, 382 (1992).

[20] Based upon the presumption of unconstitutionality that

attaches to content-discriminatory laws of the sort at issue in

this case, we believe that Thomas and Baker have made a col-

orable claim that the Alaska housing laws infringe their rights

to free speech. The First Amendment thus serves to

“hybridize” their Free Exercise challenge to §§ 18.80.240(3)

and 18.80.240(5) of the Alaska statute and §§ 5.20.020(C),

5.20.020(E), and 5.20.020(G) of the Anchorage ordinance.

[21] Because we conclude that Thomas and Baker have

successfully demonstrated hybrid-rights claims under the Tak-

ings and Free Speech Clauses, we must determine “whether

government has placed a substantial burden on the observa-

tion of a central religious belief or practice and, if so, whether

a compelling governmental interest justifies the burden.”

" :

; a.

77a

Hernandez v. Commissioner, 490 U.S. 680, 699 (1989). We

address the issues in turn. If the former question begets an

affirmative response and the latter a negative, we must invali-

date the Alaska laws insofar as they apply to Thomas and

Baker and similarly situated landlords.

[22] With regard to the burden issue, Thomas and Baker

argue that the laws present them with a Hobson’s Choice of

sorts between (1) violating their religious beliefs by renting

to unmarried couples, (2) suffering punishment for refusing

to rent to unmarrieds, and (3) forsaking their livelihoods as

apartment owners altogether. That choice, they argue, renders

the burden on their religious beliefs “substantial.” Director

Haley counters on two fronts. As an initial matter, she points

out that “[tJhe landlords’ religion does not require them to

rent housing”; rather, they do so “as a matter of choice for

personal profit.” She insists that “[tJhe fact that the landlords’ _

religious objection arises from regulation of their voluntary

commercial activity renders any burden insubstantial.” In sup-

port of her proposed prophylactic “commercial activity”

exception to the substantial-burden rule, Haley relies upon

United States v. Lee, 455 U.S. 252 (1982), and Tony and

Susan Alamo Foundation v. Secretary of Labor, 471 U.S. 290

(1985). Most prominently, Haley points to the Lee Court’s

Statement that

(wJhen followers of a particular sect enter into com-

mercial activity as a matter of choice, the limits they

on their own conduct as a matter of con-

science and faith are not to be superimposed on the

statutory schemes which are binding on others in the

Lee, 455 U.S. at 261. Contrary to Haley’s suggestion, how-

ever, the Lee Court never intimated that the fact that a free

exercise dispute arises in a “commercial” context might in

78a

and of itself affect the substantiality of the claimed burden.

On the contrary, it expressly concluded that the government -

regulation there at issue — compulsory participation in the

social security system — did “interfere[ ] with [the petition-

ers’) free exercise rights.” Jd. at 257. Seemingly assuming that

the burden was substantial, the Court then proceeded immedi-

ately to consider whether or not the government could save

the law by demonstrating a compelling state interest in the

maintenance of the challenged program. See id. at 257-58.

Concluding that it could, the Court rejected Lee’s free exer-

cise claim. See id. at 260. The mere fact that the Court in Lee

reached the compelling-interest issue (which is logically sub-

sequent to the burden issue) confirms that it found a substan-

tial burden.

Haley’s reliance upon Alamo is similarly misplaced. She

cites Alamo for the proposition that regulations which “apply

only to commercial activities undertaken with a ‘business

purpose’ ” do not constitute constitutionally substantial bur-

dens on free exercise. Alamo, 471 U.S. at 305. The language

that Haley recites, however, is taken, not from the portion of

the opinion addressing the substantial-burden issue, but rather

from a passage disposing of Establishment Clause challenges.

Consequently, neither Lee nor Alamo supports a per se (or

even presumptive) rule that burdens levied in commercial

contexts are not constitutionally substantial. See Attorney

General v. Desilets, 636 N.E.2d 233, 238 (Mass. 1994) (“The

fact that the defendants’ free exercise of religion claim arises

in a commercial context, although relevant when engaging in

a balancing of interests, does not mean that their constitu-

tional rights are not substantially burdened.”).

Haley’s second argument regarding the burden issue goes

something like this: Thomas and Baker may avoid having

either to compromise their religious beliefs or to face criminal

penalties by simply “cashing out,” that is, by selling their

apartments and redeploying their capital in another invest-

ment; because the landlords retain that option, any burden on

79a

their religious rights is constitutionally insubstantial. To deter-

mine whether or not the Alaska laws at issue substantially

burden Thomas and Baker’s freedom of religion, we must

“Took{ ] to the degree that the government’s requirement will,

directly or indirectly, make the believer’s religious duties

more difficult or more costly.” Laurence H. Tribe, American

Constitutional Law § 14-12, at 1247 (2d ed. 1988). This court

has stated that, at a minimum, the interference with religious

beliefs “must be more than an inconvenience.” Graham vy.

Commissioner, 822 F.2d 844, 851 (9th Cir. 1987), aff'd sub

nom., Hernandez v. Commissioner, 490 U.S. 680 (1989). In

attempting to show that the burden on Thomas and Baker’s

religious exercise is nothing more than a simple inconve-

nience, Haley relies heavily upon Braunfield v. Brown, 366

U.S. 599 (1961). There, the Supreme Court rejected chal-

lenges to a Pennsylvania Sunday-closing law brought by

Orthodox Jewish merchants. The storeowners claimed that, if

they wished to exercise their religious beliefs by remaining

closed to business on the Saturday sabbath, enforcement of

the law would put them at a distinct economic disadvantage

vis a vis their non-Sabbatarian competitors. The Court, how-

ever, refused their argument, stating that a governmental regu-

lation that merely “Operates so as to make the practice of [an

individual's] religious beliefs more expensive” does not

impose a sufficiently “substantial burden” to trigger Free

Exercise Clause scrutiny. Id. at 605."

[23] It is true that, because Thomas and Baker retain the

cash-out option, the Alaska laws might not make their free

exercise significantly “more expensive.”“ Expense, however,

is not the sole consideration involved in determining whether

"The Supreme Court has, however, recognized that some purely finan-

cial burdens might be so severe as to rise to the level of constitutionally

“substantial.” See Jimmy Swaggart Ministries v. Board of Equalization,

493 US. 378, 392 (1990).

“That is not to say that there might not be distinct sunk costs involved

in cashing out.

80a

a burden is constitutionally substantial or is instead merely

“Inconvenien[t].” See id. The burden imposed upon Thomas

and Baker is qualitatively different — though we think no less

severe — than an imposition of increased cost: The Alaska

housing laws de facto banish both Thomas and Baker from

the Alaska rental market altogether and force them to forsake

their livelihoods as apartment owners and lessors. The laws

do not effect a mere marginal reduction in business; they put

Thomas and Baker out of business. |

Moreover, Haley’s “could have just quit” argument would

seem equally applicable to the successful free exercise plain-

tiffs in the so-called “unemployment compensation cases,”

none of whom alleged that his respective religion required

that he work for an employer whose business practices contra-

vened his sincerely held religious beliefs. See Hobbie v.

Unemployment Appeals Comm’n, 480 U.S. 136 (1987);

Thomas v. Review Board, 450 U.S. 707 (1981); Sherbert v.

Verner, 374 U.S. 398 (1963). In none of those cases did the

Court entertain — much less credit — the argument that the

religious adherent could simply have left his job and have

found an occupation that better suited his religious beliefs and

practices. Rather, the Court’s cases centered on a simple prin-

ciple:

Where the state conditions receipt of an important

benefit upon conduct proscribed by a religious faith,

or where it denies such a benefit because of conduct

mandated by religious belief, thereby putting sub-

stantial pressure on an adherent to modify his behav-

ior and to violate his beliefs, a burden on religion

exists. While the compulsion may be indirect, the

infringement upon free exercise is nonetheless sub-

stantial.

Hobbie, 480 U.S. at 141 (quoting Thomas, 450 U.S at

717-18). The same “substantial pressure” to modify behavior

and to violate beliefs that was present in the unemployment

Director Haley insists that the unemployment compensation

cases are “inapplicable, because engaging in the rental busi-

pressure to conform decisively more “unmistakable.” See

Sherbert, 374 U.S. at 404.

[24] We thus conclude that the Alaska laws (and the

trilemma of sorts they present) do “substantially burden”

Thomas and Baker’s religious rights.

[25] Of course, “{njot all burdens on religion are

unconstitutional.” Bowen v. Roy, 476 U.S. 693, 701 (1986).

Even substantial burdens on religious exercise may be justi-

fied by a showing that a regulation’s restrictions are necessary

to the achievement of some compelling state interest. Whether

a compelling governmental interest justifies Alaska’s anti-

marital-status discrimination laws is the question to which we

now turn.

nature of the interests that are sufficiently “compelling” to

82a

survive strict Free Exercise Clause scrutiny. In Sherbert, for

instance, the Court declared that, in order to restrict religious

exercise, the State must advance “paramount interests.”

Sherbert, 374 U.S. at 406 (quoting Thomas v. Collins, 323

U.S. 516, 530 (1945). Likewise, in Yoder, the Court stated

that it would defer only to “interests of the highest order.”

Yoder, 406 U.S. at 215. Most recently, the Court in Lukini

reaffirmed that “[t]he compelling interest standard that we

apply once a law fails to meet the Smith requirements is not

‘water[ed] . . . down’ but ‘really means what it says.’”

Lukumi, 508 U.S. 520, 546 (quoting Smith, 494 U.S. at 888).

Director Haley contends that the laws pass constitutional mus-

ter even under strict scrutiny because “Alaska has compelling

interests in eradicating discrimination in housing on the basis

of marital status.” We disagree. Alaska’s purported interest in

preventing marital-status discrimination is simply not suffi-

ciently “paramount” to satisfy strict scrutiny. See generally

Swanner v. Anchorage Equal Rights Comm’n, 513 U.S. 979

(1994) (Thomas, J., dissenting from denial of certiorari).

Only twice has the Supreme Court recognized the preven-

tion of discrimination as an interest compelling enough to jus-

tify restrictions on constitutional rights. In 1983, in Bob Jones

University v. United States, 461 U.S. 574 (1983), the Court

concluded that there is an “overriding interest” in eradicating

racial discrimination. Jd. at 604. A year later, in Roberts v.

United States Jaycees, 468 U.S. 609 (1984), the Court

acknowledged a compelling government interest in preventing

discrimination based upon gender. See id. at 623. Although

the Roberts Court was less than clear with respect to the pre-

cise considerations that led it to conclude that the elimination

of gender discrimination constituted a compelling government

interest, the Court in Bob Jones was more explicit: It based its

decision upon what it deemed a “firm national policy” against

race discrimination. Bob Jones, 461 U.S. at 593. For support,

the Court adverted to examples of anti-race-discrimination

measures taken from all three branches of the federal govern-

ment: In the judiciary, Brown v. Board of Education, 347 US.

83a

483 (1954), and Cooper v. Aaron, 358 U.S. 1 (1958); in Con-

gress, the Civil Rights Act of 1964, Pub. L. No. 88-352, 78

Stat. 241 (codified as amended at 42 U.S.C. §§ 1971,

_1975a-1975d, 2000a-2000h6), the Civil Rights Act of 1968,

Pub. L. No. 90-284, 82 Stat. 73 (codified as amended in scat-

tered sections 18 U.S.C., 25 U.S.C., 28 U.S.C., and 42

U.S.C.), and the Voting Rights Act of 1965, Pub. L. No.

89-110, 79 Stat. 437 (codified as amended at 42 U.S.C.

$§ 1971, 1973 to 1973gg-10); and in the executive branch,

orders issued by Presidents Truman, Eisenhower, and Ken-

nedy prohibiting racial discrimination in various sectors. Of

course, had it opted to do so, the Bob Jones Court might eas-

ily have further elaborated, and cited as support for its “firm

national policy” the Civil War and the Thirteenth, Fourteenth,

and Fifteenth Amendments that followed on its heels. The

post-Reconstruction history of this country leaves little room

for argument as to the existence of a national commitment to

the elimination of race discrimination.

[26] It is beyond cavil that there is no similar “firm national

policy” against marital-status discrimination. The Supreme

Court has never accorded marital status any heightened scru-

tiny under the Equal Protection Clause, as it has both race,

see, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200

(1995), and gender, see, e.g., United States v. Virginia, 518

U.S. 515 (1996). Nor has any court of appeals, for that matter.

See Smith v. Shalala, 5 F.3d 235, 239 (7th Cir. 1993)

(“Because [a] classification based on marital status does not

involve a suspect class and does not impact a fundamental

interest, we must examine it under the rational basis test.”); cf.

United States v. Omoruyi, 7 F.3d 880, 881 (9th Cir. 1993)

(“Peremptory challenges based on marital status do not vio-

late [Batson v. Kentucky, 476 U.S. 79 1986)}.”). And although

equal protection analysis may not be determinative of the

compelling interest inquiry, it assuredly is not, as Director

Haley claims, “irrelevant.” The Equal Protection Clause is

concerned more specifically than any other constitutional pro-

vision with the issue of discrimination; it is therefore emi-

84a

nently sensible to look to equal protection precedent as a

proxy for the importance that attaches to the eradication of

particular forms of discrimination. The fact that courts have

not given unmarried couples any special consideration under

the Equal Protection Clause is potent circumstantial evidence

that society lacks a compelling governmental interest in the

eradication of discrimination based upon marital status.

[27] The Supreme Court’s decision in Moore v. City of East

Cleveland, 431 U.S. 494 (1977), is also not insignificant in

determining whether a “firm national policy” against marital-

status discrimination exists. There, the Court considered a

substantive due process challenge to a local housing ordi-

nance that limited dwelling occupancy to single families. The

ordinance defined “family” in such a manner as to exclude

from its scope a woman living with her son and two grand-

sons. See id. at 496 & n.2. The City argued to the Court that

its earlier decision in Belle Terre v. Boraas, 416 U.S. 1

(1974), required it to uphold the ordinance. In Belle Terre, the

Court had upheld against constitutional challenge another

city’s single-family-dwelling ordinance. The Moore Court,

however, easily distinguished its earlier holding:

[OJne overriding factor sets this case apart from

Belle Terre. The ordinance there affected only unre-

lated individuals. It expressly allowed all who were

related by “blood, adoption, or marriage” to live

together, and in sustaining the ordinance we were

careful to note that it promoted “family needs” and

“family values.”

Id. at 498. The Supreme Court has, therefore, for all intents

and purposes, recognized a substantive due process right to

live with relatives (such as spouses), but has expressly

declined to extend such a right to “unrelated” individuals

(such as unmarried cohabitants). Hence, far from articulating

any constitutional policy against marital-status discrimination,

the Supreme Court has itself approved regulations containing

85a

distinctions between married and unmarried couples, bestow-

ing upon the former rights it withholds from the latter.

status” among its catalogue of six protected categories. See,

e.g., id. § 3604(a) (“[I]}t shall be unlawful . . . [t]o refuse to.

sell or rent . . . a dwelling to any person because of race,

color, religion, sex, familial status, or national origin.””).

Indeed, the overwhelming majority of federal civil rights laws

are silent on the issue of marital-stams discrimination. See,

e.g., 42 U.S.C. §2000a(a) (prohibiting discrimination in

places of public accommodation “on the ground of race,

color, religion, or national origin”); 42 U.S.C. § 2000d (pro-

hibiting discrimination in any federally funded program “on

the ground of race, color, or national origin”); 42 U.S.C.

bid marital-stams discrimination. See 5 U.S.C. § 2301(b)(2);

15 U.S.C. § 1691(a); 20 U.S.C. § 1071(a\(2). A “handful,”

however, do not a “firm national policy” make.

“Familial stats” is defined under the Act as relating to the domicile

of children with adults.

86a

[29] Alaska law is likewise unavailing. As an initial matter,

we think it strange to reference Alaska law (in isolation) as

evidence of a compelling government interest in eradicating

marital status discrimination. Alaska law certainly cannot

alone suffice to demonstrate a “firm national policy.” Nor,

would it seem, can a single state’s law evince — under any

standard — a compelling government interest for federal

constitutional purposes. The fact that Alaska has granted its

citizens a “civil right” to “obtain . . . housing accommodations

. without discrimination because of . . . marital status,” see

Alaska Stat. § 18.80.210, is irrelevant. Surely there are other

states that are less enthusiastic. Under Director Haley’s rea-

soning, presumably Alaska would possess a compelling inter-

est in eradicating marital-status discrimination but, say,

Alabama, would not. Under such a state-specific approach to

identifying compelling interests, all fields of federal constitu-

tional law in which courts employ strict scrutiny — including

free speech, free exercise, equal protection, and substantive

due process — would be balkanized beyond the point of rec-

ognition. States could unilaterally “opt out” of federal consti-

tutional rules (the Free Exercise Clause among them) simply

by adopting particular legislative policies. Coherent constitu-

tional doctrines would no longer exist; rather, we would be

subjected to fifty individual sub-constitutions, each according

the government a slightly different degree of authority to

infringe constitutional rights.

[30] Even were we to assume that state law could alone

suffice to create a compelling governmental interest in pre-

venting discrimination against unmarried couples, Alaska’s

would not meet this constitutional test. For example, the very

laws under review contain exceptions for “married-only”

housing, see Alaska Stat. § 18.80.240, and for space rented in

the home of the landlord, see Anchorage Mun. Code

§ 5.20.020. Moreover, as Justice Moore observed in his dis-

sent in Swanner, Alaska law expressly discriminates against

unmarried couples in a number of contexts:

87a

[T]he government itself discriminates based on mari-

tal status in numerous Tegards, and there is no sug-

gestion that this practice should be reexamined.

See, e.g., AS 13.11.015 (intestate succession does

not benefit unmarried parmer of decedent); AS

23.30.215(a) (workers’ compensation death benefits

only for surviving spouse, child, parent, grandchild,

or sibling); Alaska R. Evid. 505 (no marital commn-

nication privilege between unmarried couples);

Serradell v. Hartford Accident & Indemn. Co., 843

P.2d, 639, 641 (Alaska 1992) (no insurance coverage

for unmarried partner under family accident insur-

ance policy).

Swanner, 874 P.2d at 288-89. Alaska’s “underenforcement”

of its purported interest in eradicating marital-status discrimi-

nation is critical, because “[i}t is established in . . . strict scru-

iny jurisprudence that ‘a law cannot be regarded as protecting

an interest “of the highest order” . . . when it leaves apprecia-

ble damage to that supposedly Vital interest unprohibited.’ ”

Lukumi, 508 U.S. at 547 (quoting Florida Star v. B.J.F., 491

U.S. 524, 541-42 (1989) (Scalia, J. concurring in part and

concurring in judgment)).

[31] There is simply no support from any quarter for recog-

mine whether there is any independent bar to granting the

landlords an exemption from the laws under the Free Exercise

Clause. AERC insists that there is such a bar: The Establish-

ment Clause.” Specifically, AERC argues that exemptions

granted under the Free Exercise Clause violate the Establish-

ment Clause “where the conduct sought to be protected by the

Free Exercise Clause would result in direct injury to other

identifiable persons.”

[32] Obviously, Free Exercise Clause exemptions do not as

a general matter violate the Establishment Clause. See Hob-

bie, 480 U.S. at 144-45 (“This Court has long recognized that

the government may (and sometimes must) accommodate

religious practices and that it may do so without violating the

Establishment Clause.”). If they did, then Yoder, Sherbert,

Hobbie, Thomas, and Lukagni (to name just a few cases in

Clause) would have been decided differently. Although recent

Establishment Clause doctrine undoubtedly suffers from a

sort of jurisprudential schizophrenia, we are not altogether

without guidance in evaluating Establishment Clause chal-

lenges. Pursuant to the oft-criticized-but-still-extant three-

prong standard of Lemon v. Kurtzman, 403 U.S. 602 (1971),

government action violates the Establishment Clause only if

(1) it does not have a “secular legislative purpose,” or (2) its

“principal or primary effect” is to advance or inhibit religion,

or (3) it fosters an “excessive government entanglement”

with religion. Jd. at 612-13. Similarly, under the so-called

“endorsement” test, courts look to “whether the challenged

governmental practice either has the purpose or effect of

to the individual States, the Supreme Court has long subscribed to the

view that the Establishment Clause applies against the States through the

Fourteenth Amendment. See Everson v. Board of Educ., 330 US. 1, 8

(1947).

89a

‘endorsing’ religion.” County of Allegheny v. ACLU, 492 U.S.

573, 592 (1989). AERC has not so much as alleged that, by

granting Thomas and Baker a constitutionally mandated

exemption from the Alaska housing laws, we run the risk of

“endorsing” Christianity or unnecessarily “entangling” the

government in religious affairs.

[33] The fact that the exemption might, if granted, result in

harm to third parties does not materially affect the Establish-

ment Clause calculus. Establishment Clause jurisprudence

concems itself with only one kind of “harm”: the stigmatiza-

tion of religious minorities. See Lynch v. Donnelly, 465 U.S.

668, 688 (1984) (O’Connor, J. concurring) (“Endorsement

sends a message to nonadherents that they are outsiders, not

full members of the political community.”); see also Sherbert,

374 U.S. at 409 (inquiring whether recognition of employee’s

right to unemployment compensation benefits would “serve to

abridge any other person’s religious liberties”). Here, the only

palpable injury suffered by an unmarried tenant turned away

by a Christian landlord for religious reasons is a marginal

reduction in the number of apartment units available for rent.

The “harm” to the rejected lessee, if any, is economic, not

religious; as such, it is beyond the pale of the Establishment

Clause.

[34] By exempting Thomas and Baker from the scope of

the Alaska anti-marital-discrimination laws, we do not

“establish” or otherwise endorse Christianity as an official

state religion. Rather, our opinion “reflects nothing more than

the governmental obligation of neutrality in the face of reli-

gious differences.” Sherbert, 374 U.S. at 409. The Establish-

ment Clause does not forbid what the Free Exercise Clause

requires.

Vil

Noble as their purpose may be, neither the Alaska statute

nor the Anchorage ordinance may be enforced against land-

90a

lords, like Thomas and Baker, who for religious reasons

refuse to rent to unmarried couples.

The decision of the district court is

AFFIRMED.

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APPENDIX C

VOLUME 2 of 2

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Kevin THomas and Joyce BAKER, -

Plaintiffs-Appellees,

Vv.

ANCHORAGE EQua_ RIGHTS No. 97-35220

ComMISSION and the D.C. No

MUNICIPALITY OF ANCHORAGE, ded

Defendants-Appellanis, > CV-95-0274-HRH

and CV-95-0275-HRH

PauLa Ha ey in her official OPINION

capacity as the Executive Director .

of the Alaska State Commission

for Human Rights,

Defendant.

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Kevin THOMAS and Joyce BAKER,

Plaintiffs-Appellees,

v. |

ANCHORAGE Equal RIGHTS No. 97-35221

CommMIssION and the D.C. No.

MUNICIPALITY OF a | CV-95 021 4-HRH

and CV-95-0275-HRH

Pauta HALey in her official

capacity as the Executive Director

of the Alaska State Commission

for Human Rights,

Defendant-Appellant.

Appeals from the United States District Court

for the District of Alaska

H. Russel Holland, Distnct Judge, presiding

Argued and Submitted

July 13, 1998—Anchorage, Alaska

Filed January 14, 1999

Before: Jerome Farris, Diarmuid F. O’Scannlain and

Michael Daly Hawkins, Circuit Judges.

Dissent by Judge Hawkins

HAWKINS, Circuit Judge, dissenting:

The approach of the majority ought to alarm any serious

student of judicial restraint. It decides a controversy that does

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not exist, in favor of parties who have suffered no harm and

tums on its head the notion that state and local laws of general

and uniform application are entitled to substantial deference.

Tossed aside in the process is a statutory provision that has

been widely upheld — in the face of challenges far more

firmly grounded in fact and law than this — by state supreme

courts throughout our circuit. See Smith v. Fair Employment

and Housing Comm'n, 12 Cal. 4th 1143 (1996), cert. denied,

117 S. Ct. 2531 (1997); Swanner v. Anchorage Equal Rights

Comm’n, 874 P.2d 274 (Alaska), cert. denied, 115 S. Ct. 460

(1994).

Thomas & Baker seek a declaration that an Alaska statute

and a companion Anchorage Ordinance are unconstitutional

because they offend their religious belief that unmarried per-

sons should not cohabitate. Thomas & Baker claim to have

violated these laws in the past by refusing to rent to unmarried

couples; yet they cannot provide the name of a single prospec-

tive tenant turned away for this reason. Until they filed this

lawsuit, the principal agency responsible for enforcement of

these measures had never even heard of them and for good

reason: no one has ever filed a complaint about their rental

practices. Thomas & Baker claim to be in “grave danger” of

having these laws enforced against them, yet they can point

to a grand total of two prosecutions in the more than twenty

years since these measures have been on the books. The

record is devoid of any suggestion that either Thomas or

Baker has ever spoken out publicly about these laws, written

a letter to any editor or even so much as shouted out in the

dark of night about their impact on them.

Not only is there no reasonable threat of prosecution

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.