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Ninth Circuit Finds a
New Constitutional "Right" to
Discriminate Against Unmarried Tenants
Published in Volume 1999-8 (Feb. 19,
1999) of Local Government Law Weekly,
a publication of the ABA Section on State and Local Government
Law.
By Timothy J. Dowling,
Chief Counsel, Community Rights Counsel
In Heart of Atlanta Motel, Inc. v. United States,
379 U.S. 241 (1964), the Supreme Court rejected
constitutional challenges to the Civil Rights Act of 1964
brought by a white motel owner who refused to serve
blacks. The Court made clear that an operator of public
accommodations "has no 'right' to select its guests
as it sees fit, free from government regulation." Id.
at 259.
Until now. In Thomas v. Anchorage Equal Rights
Comm'n, Nos. 97-35220, 97-35221 (9th Cir., Jan. 14,
1999), the U.S. Court of Appeals for the Ninth Circuit
invalidated municipal and state nondiscrimination laws by
applying a new-found constitutional "right" to
choose tenants under the Free Exercise Clause of the
First Amendment.
At issue in Thomas are fair housing laws
enacted by the Municipality of Anchorage and State of
Alaska that prohibit discrimination on the basis of
marital status, including discrimination against
unmarried couples. The plaintiffs are landlords who claim
that renting to unmarried couples violates the landlords'
religious beliefs because it "facilitates
fornication." A divided panel of the Ninth Circuit
agreed and invalidated the laws as applied to the
plaintiffs and all similarly situated landlords.
The implications are startling. Thomas
effectively trumps rulings by the Alaska and California
supreme courts that upheld such laws, and it calls into
question similar laws in other Ninth Circuit states.
Claimants outside the Ninth Circuit reportedly are
already using the ruling to challenge nondiscrimination
laws in other jurisdictions.
A "Hybrid Right"
Greater than the Sum of its Parts
The Thomas court's analysis is as novel as
the result. The U.S. Supreme Court has held that the Free
Exercise Clause does not relieve anyone of the obligation
to comply with neutral laws of general applicability. See
Employment Division v. Smith, 494 U.S. 872,
879-81 (1990). The Thomas court properly
concluded that the Anchorage and Alaska nondiscrimination
laws are neutral and generally applicable. In many
courts, that determination would have concluded the
analysis.
In an express departure from rulings by the First,
Sixth, and D.C. Circuits, however, the Thomas
panel held that the landlords could bolster their free
exercise claim simply by asserting a
"colorable"--but not necessarily viable--claim
under another constitutional provision. This so-called
"hybrid rights" theory essentially allows free
exercise claimants to merge two losing claims into a new
hybrid right. Once the free exercise claim is thus
"hybridized," under the panel's theory, the
government must show that any substantial burden on
religious beliefs caused by the challenged law is
justified by a compelling state interest.
Taking a Step Back
While the Thomas court's hybridization theory
is remarkable, even more disturbing is its use of the
Takings Clause of the Fifth Amendment to hybridize the
landlords' free exercise claim. The panel recognized that
the landlords do not have a per se takings
claim, i.e., a categorical takings claim that
turns on a single factor. Under Yee v. City of
Escondido, 503 U.S. 519, 531 (1992), property owners
who "voluntarily open their property to occupation
by others . . . cannot assert a right to compensation
based on their inability to exclude particular
individuals."
The panel instead applied the three-factor analysis
for noncategorical takings claims under Penn Central
Transp. Co. v. New York City, 438 U.S. 104 (1978).
It correctly determined that the nondiscrimination laws
neither interfere with the landlords' investment-backed
expectations nor cause them economic harm. (Indeed, the
panel stated the laws might well increase their property
value by expanding the pool of potential tenants.)
The panel nevertheless found a colorable takings claim
based solely on the third Penn Central
factor--the character of the government action--stating
that the laws authorize a physical invasion of the
property. Yet Yee squarely rejects the notion
that restrictions on the ability to choose tenants
constitute a government-authorized physical invasion. 503
U.S. at 528. While purporting to follow Yee, the
panel disregarded its central holding. Prior to Thomas,
no reported decision had ever found a noncategorical
taking in the absence of interference with the owner's
expectations and economic harm.
Free Speech and Compelling Interests
The panel held that the landlords also have a
colorable claim under the Free Speech Clause of the First
Amendment. The challenged laws naturally prohibit
landlords from asking about a prospective tenant's
marital status or stating a preference for tenants based
on marital status. Other federal courts have upheld
similar laws because they target commercial speech that
advances illegal discrimination. Thomas,
however, calls into question any law that prohibits
communications designed to undermine our civil rights
laws.
Having hybridized the free exercise claim with
"colorable" takings and free speech claims, the
panel concluded there is no compelling state interest to
support the challenged laws. This conclusion cannot be
squared with other recent Ninth Circuit precedent holding
that a city has a compelling interest in preserving the
integrity of its nondiscrimination laws, including laws
that prohibit discrimination on the basis of sexual
orientation. E.g., Lumpkin v. Brown,
109 F.3d 1498, 1501 (9th Cir.), cert. denied,
118 S. Ct. 558 (1997).
The Implications
As noted by Judge Hawkins in dissent, the panel's
ruling threatens more than just marital status
protections. Landlords, restaurateurs, store owners, and
other operators of public accommodations could try to use
Thomas to justify discrimination against
divorced persons, interracial couples, unwed mothers,
women who do not wear veils, and anyone else who does not
meet the property owner's personal religious criteria.
Because the panel's takings analysis does not depend on
the free exercise issues, its implications are even
broader. The Thomas court's unprecedented
finding of a colorable takings claim under Penn
Central -- even though the challenged laws do not
interfere with the landlords' expectations or cause them
economic harm -- could fuel an already growing wave of
takings claims against environmental laws and other
community protections.
Not surprisingly, the case has attracted significant
amicus participation, including briefs supporting
Anchorage and Alaska filed on behalf of many state and
local governments, the National Fair Housing Alliance,
and other national and regional organizations.
Presidential candidate Gary Bauer's Family Research
Council and similar groups have weighed in on behalf of
the landlords.
Anchorage and Alaska have filed rehearing petitions.
Local government attorneys should keep an eye on this
one. If left undisturbed, the panel's ruling will pose
new challenges for those who defend nondiscrimination
laws and other community protections.
Link to the full text of the court's opinion
in Thomas
v. Anchorage Equal Rights Comm'n. |
