Gerald J. Russello*
In a decision that could have far-reaching
consequences for religious liberties jurisprudence, a panel of the
Ninth Circuit has ruled, in Thomas v. Anchorage Equal Right Commission,
165 F.3d 692 (9th Cir. 1999), that state and municipal antidiscrimination
laws barring landlords from refusing to rent to unmarried couples
placed a substantial burden on landlords and are not justified by
any compelling governmental interest, when the refusal is based
upon religious belief.
Challenging such laws on the basis of religious belief has been
made more difficult since the decision in Employment Division v.
Smith, 494 U.S. 872 (1990), which generally barred free exercise
challenges to generally applicable, neutral laws. A small loophole
was created three years later in Church of the Lukumi Babalu Aye
v. City of Hialeah, 508 U.S. 520, 542 (1993), which mandated strict
scrutiny for laws that were found to "target" specific
religious groups. The courts of appeals have been groping toward
a more flexible rule, drawing upon language in Smith that seems
to permit strict scrutiny when the challenged laws infringe other
constitutional rights in addition to those of free exercise, the
so-called "hybrid-rights" exception. See Smith, 494 U.S.
Judge O'Scannlain, writing for himself and Judge Farris, affirmed
the District court and found that the state and municipal provisions
infringed upon the landlords' First and Fifth Amendment rights along
with their free exercise rights, thus mandating a strict scrutiny
analysis of the provisions. Subject to that analysis, Alaska and
Anchorage failed to demonstrate a compelling government interest
to justify the substantial burden placed upon the landlords. Judge
Hawkins dissented. Thomas, 165 F.3d at 718.
In Thomas, two landlords sued for prospective declaratory and injunctive
relief, claiming that enforcement of the municipal or state provisions
would violate their constitutional rights. There was no dispute
that the landlords had refused to rent to unmarried couples in the
past, would do so in the future, and that their refusals were based
on religious belief. Thomas, 165 F.3d at 696-97. The District court
granted summary judgment to the landlords, ruling that the landlords
had standing to sue and that their claims were ripe for review,
despite the fact that they had not yet been prosecuted under either
provision. In a separate order, the District court found that the
provisions would violate the landlords' free exercise rights, and
permanently enjoined the defendants from enforcing the provisions.
The Anchorage Equal Rights Commission and the head of the Alaska
State Commission for Human Rights appealed.
The majority first rejected the landlords' contention that their
claims fell within the exception to Smith outlined in Lukumi. The
court determined that the provisions were not motivated by any illicit
intention that targeted religious belief. Any burden on religiously
motivated conduct, the court found, was incidental. Thomas, 165
F.3d at 702. The landlords relied upon the "hybrid rights"
exception in Smith. The landlords alleged violations of their Fifth
Amendment "right to exclude" others from their property,
as well as First Amendment free speech rights.
The "hybrid-rights" doctrine has found a life of its
own in the appellate courts, with several Circuits designing tests
that preserve the general rule of Smith while remaining faithful
to other precedents that Smith left intact. The majority steered
a middle course in enunciating a hybrid-right doctrine between the
"independently-viable" and "implication" theories
rejected by Justice Souter in his dissent in Lukumi. Lukumi, 508
U.S. at 567. The court determined that strict scrutiny would apply
if a "colorable" claim that the companion (non-free exercise)
claim has been violated by an otherwise neutral and generally
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applicable law was made by the plaintiff. Thomas, 165 F.3d at 705.
Such a standard, the court found, would preserve the validity of
Smith's holding that generally applicable, neutral laws will survive
a free exercise challenge. At the same time it would preserve the
free exercise component of hybrid-rights claims, which would be
superfluous if the companion right was independently viable. Id.
Under the "colorable claim" standard, courts will be
required to make "difficult, qualitative, case-by-case judgements"
concerning the strength of the companion claims. Thomas, 165 F.3d
at 705. The majority found that the landlords had made out colorable
claims under the Fifth and First Amendments. The court also found
that the provisions authorized a physical invasion of the landlords'
property and amounted to a regulatory taking. Id. at 709. The court
rejected the appellants' claim that the landlords' refusal to rent
to unmarried couples represented only commercial speech entitled
to little constitutional protection; on the contrary, the court
found that the speech here went beyond a simple commercial transaction
and was in fact fully protected religious speech. Id. at 710-11.
The closing portions of the majority opinion found that the provisions
had placed a substantial burden upon the exercise of the landlords'
religious beliefs because the provisions "de facto banish [the
landlords] from the Alaska rental market altogether and force them
to forsake their livelihoods" as property owners. Thomas, 165
F.3d at 713. The mere fact that the landlords entered into a regulated
industry did not make the burdens placed upon them insubstantial.
The majority further found that the appellants had not shown a compelling
government interest to support enforcement of the provisions. Id.
at 717. The appellants had advanced insufficient evidence to support
the conclusion that ending discrimination against unmarried couples
(unlike, for example, racial discrimination) was a "firm national
policy" sufficient to permit the substantial burden upon the
landlords' rights. Id. at 715-17.
Thomas's careful analysis of precedent and close reasoning establish
important protections for religious believers. It makes clear that,
despite Smith, neutral laws that impact upon religious belief may
still be subject to strict scrutiny if a colorable claim can be
made out under a companion right, which may often happen given the
many points at which government regulations and religious speech
or belief may intersect. The hybrid-rights analysis developed by
the majority allows a more nuanced look at the contours of belief
and law than that allowed by the central holding of Smith. Once
a colorable claim has been made, the strict scrutiny analysis will
compel government agencies to connect the challenged laws with firm
national policies or "paramount."