Federal appeals court orders dismissal of Alaska landlords’ case

Tuesday, August 8, 2000

The full 9th U.S. Circuit Court of Appeals determined that a lawsuit
filed by two landlords challenging Alaska laws prohibiting housing
discrimination based on marital status was not ripe for judicial review.

Under the Alaska anti-discrimination laws, landlords cannot make
“written or oral inquiry or record” into the marital status of potential
renters; tell people the rental property is not for lease to unmarried couples;
or “make, print or publish” any comment that might reveal prejudice toward
unmarried couples.

Kevin Thomas and Joyce Baker challenged the laws in federal court,
alleging that the restrictions violated their free exercise of religion and
free-speech rights.

In January 1999, a three-judge panel of the 9th Circuit ruled 2-1 that
the state’s interest in quelling discrimination in housing simply was not
important enough to justify burdening the Anchorage landlords’ religious

However, in October 1999, the full 9th Circuit agreed to hear the

“This is a case in search of a controversy,” the majority of the
11-member court wrote in its Aug. 4 opinion in Thomas v. Anchorage Equal Rights Commission.

“Simply put, at this stage the dispute is purely hypothetical and the
injury is speculative,” Judge M. Margaret McKeown wrote for the majority.

McKeown wrote that several events would have to occur before there
would be a live case and controversy, including: the retention of the rental
property by the landlords, the attempt of an unmarried couple to rent from one
of the landlords, the filing of a discrimination complaint by the couple and
the decision of a state enforcement agency to prosecute.

The majority ordered a lower court to dismiss the lawsuit.

Judge Andrew J. Kleinfeld dissented. He wrote that the landlords
“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,” Kleinfeld wrote.

Kevin Clarkson, attorney for the landlords, refused to comment on the
full court’s decision, but did say he would appeal to the U.S. Supreme Court.

Calls to the Alaska State Commission for Human Rights were not

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