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Court Errs in Creating New Right to Exclude
Long Beach Press-Telegram
February 22, 1999
Doug Kendall
Most Americans think that two losing legal claims do
not make a constitutional right. But the Ninth Circuit
Court of Appeals--the federal appellate court that covers
California, Alaska, and seven other western states--seems
to think otherwise.
In a startlingly activist ruling last month that
threatens fair housing and anti-discrimination laws
across the country, a divided panel of Ninth Circuit
judges struck down Alaska and Anchorage laws that
prohibit commercial landlords from discriminating against
tenants on the basis of marital status. The court in Thomas
v. Anchorage Equal Rights Commission ruled that the
landlords' weak claim of a 1st Amendment right to
exercise their religious conviction against fornication,
coupled with a frivolous 5th Amendment property right to
exclude classes of potential tenants, somehow combined to
create a claim sufficient to invalidate the fair housing
laws.
Here's how this repugnant constitutional sausage was
made. The plaintiffs, Kevin Thomas and Joyce Baker, are
owners of a number of rental properties in Anchorage. Mr.
Thomas and Ms. Baker argued that renting to unmarried
individuals could facilitate fornication and thus would
interfere with their ability to exercise their Christian
religious beliefs.
Unfortunately for Mr. Thomas and Ms. Baker, the United
States Supreme Court plainly declared recently 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' . . ." Because
the Alaska and Anchorage statutes apply equally to all
commercial landlords and do not target any particular
religious belief, the landlords' "free
exercise" claim was a clear loser.
The Ninth Circuit recognized as much, but refused to
stop there. Instead, the court surveyed the other claims
thrown in by the landlords to see if, in combination,
they had an actionable constitutional right.
The court's novel process of "hybridization"
of legal claims is troubling in itself. But truly
mind-boggling is the claim the court seized upon most
prominently in finding a hybrid constitutional right. The
court found "likely to succeed" the landlords'
claim of a right under the so-called "takings"
clause of the 5th Amendment to exclude unmarried couples
from their property.
Likely to succeed? Hardly. The nation's civil rights
laws are all premised on the principle that a business
owner does not have a constitutional right to invite
those customers he chooses onto his property and exclude
those he deems undesirable. That has been the law in this
country since the landmark Heart of Atlanta Motel
case, in which the Supreme Court upheld the Civil Rights
Act of 1964 against a takings challenge filed by a white
hotel operator who refused to serve blacks. The Court
ruled unequivocally that a business owner "has no
'right' to select its guests as it sees fit, free from
government regulation." The landlords' takings claim
would succeed here, in other words, only if the takings
clause is interpreted to undermine this nation's civil
rights and fair housing laws.
The Ninth Circuit's ruling illustrates the remarkable
range of constitutional mischief made possible by
conservative and libertarian judges' aggressive expansion
of the takings clause in recent years. Over the last
decade, we have seen the Supreme Court use the takings
clause to strike down a number of important environmental
protections. Several months ago in Philip Morris v.
Harshbarger, an appellate court in Boston used the
takings clause to prevent Massachusetts from implementing
a law that would require cigarette companies to tell
consumers what is in their deadly products. Now we find
that even our civil rights laws are threatened by this
dangerous, newly fanged constitutional provision.
Presidents Reagan and Bush appointed judges to the
bench with the promise that they would be restrained in
creating new constitutional rights. Fifteen years later,
a far more disturbing picture is emerging. Many of these
judges have aggressively established new rights for
business interests and landlords such as Mr. Thomas and
Ms. Baker. Simultaneously, they have chipped away at the
rights that protect minorities, immigrants and criminal
defendants. Principled conservatives must cringe at
result-driven opinions, like that in Thomas,
authored by judges who were appointed to "say what
the law is, rather than what it should be."
Supreme Court rulings in cases like the Roe v.
Wade abortion case energized a generation of
conservatives to attack alleged "liberal judicial
activism." Rulings in cases like Thomas
should prod us all to pay similar attention to activism
by conservative judges.
Link to the full text of the court's opinion
in Thomas
v. Anchorage Equal Rights Comm'n. |
