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Whitehall Properties v. Anchorage Equal Rights Commision (5/13/94), 874 P 2d 274
<![CDATA[
NOTICE: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers
are requested to bring errors to the attention of the
Clerk of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501.
THE SUPREME COURT OF THE STATE OF ALASKA
TOM SWANNER, d/b/a ) Supreme Court No. S-5362
WHITEHALL PROPERTIES, )
) Superior Court No.
Appellant, ) 3AN-91-1898 CI
)
v. ) O P I N I O N
)
ANCHORAGE EQUAL RIGHTS ) [No. 4081 - May 13, 1994]
COMMISSION, PAUL L. CONNERTY, )
EXECUTIVE DIRECTOR, ex rel. )
JOSEPH BOWLES, WILLIAM F. )
HARPER, and DEE MOOSE, )
)
Appellees. )
______________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Karen L. Hunt, Judge.
Appearances: Stephen S. DeLisio, Staley
DeLisio & Cook, Anchorage, for Appellant.
Constance E. Livsey, Faulkner, Banfield,
Doogan & Holmes, Anchorage, for Appellees.
Before: Moore, Chief Justice,
Rabinowitz, Matthews and Compton, Justices.
PER CURIAM
MOORE, Chief Justice, dissenting.
Swanner, d/b/a Whitehall Properties, appealed the
superior court's decision which affirmed the Anchorage Equal
Rights Commission's (AERC) order that Swanner's policy against
renting to unmarried couples constituted unlawful discrimination
based on marital status. Swanner disputes the decision and
contends that enforcing the applicable statute and municipal
ordinance violates his constitutional right to free exercise of
his religion under the United States and Alaska Constitutions.
Swanner claims the AERC deprived him of due process by adopting
the hearing examiner's recommended decision and proposed order
without itself conducting an independent review of the case on
its merits and by failing to notify him that it would do so.
We hold that Swanner discriminated against the
potential tenants based on their marital status. We further hold
that enforcing the fair housing laws does not deprive him of his
right to free exercise of his religion. The proceedings of the
AERC did not deprive Swanner of his right to due process of law.
We affirm the AERC and superior court decisions.
I. FACTS AND PROCEEDINGS BELOW
Joseph Bowles, William F. Harper, and Dee Moose filed
three separate complaints of marital status discrimination in the
rental of real property in Anchorage. The complainants alleged
that Tom Swanner, doing business as Whitehall Properties,
violated municipal and state anti-discrimination laws, Anchorage
Municipal Code (AMC) 5.20.020 and AS 18.80.240. Swanner refused
to rent or allow inspection of residential properties after
learning that each complainant intended to live with a member of
the opposite sex to whom he or she was not married.
While Swanner did not specifically recall having
conversations with Bowles, Harper, or Moose, he readily admitted
having a policy of refusing to rent to any unmarried couple who
intend to live together on the property. Swanner's refusal to
rent or show property to unmarried couples is based on his
Christian religious beliefs. Under Swanner's religious beliefs,
even a non-sexual living arrangement by roommates of the opposite
sex is immoral and sinful because such an arrangement suggests
the appearance of immorality. It is undisputed that Swanner
rejected each complainant as a tenant because of this policy and
for no other reason.
A. Proceedings Before the Anchorage Equal
Rights Commission
The AERC consolidated the three cases for hearing and
appointed Robert W. Landau as hearing examiner on April 6, 1990.
Landau conducted a hearing on October 9 and 11, 1990 and issued a
twenty-five page Recommended Decision and proposed order in favor
of the complainants on January 7, 1991. He served the
recommended decision to Swanner's counsel and the AERC on January
7, 1991. Pursuant to the AERC's administrative rules of
procedure in effect at the time, each party had ten days after
receipt of the recommended decision to submit written objections.
AMC 5.10.015(A). When the AERC receives objections, the
regulations provide for its review of the record and modification
of the recommended decision where appropriate. AMC 5.10.015(B).
If the parties fail to object, the proposed decision
automatically becomes final. AMC 5.10.015(A). Neither Swanner
nor the AERC submitted written objections. On January 23, 1991,
the AERC issued a memorandum stating that, pursuant to AMC
5.10.015(A), the parties' failure to object to the hearing
examiner's recommended decision resulted in his proposed order
becoming final on January 22, 1991. On January 31, 1991, Cheri
C. Jacobus, AERC Chairperson, issued a Notice of Final Order
which affirmed that the proposed order became final on January
22, 1991.
B. Proceedings Before the Superior Court
Swanner appealed to the superior court on March 8,
1991. Judge Karen L. Hunt heard oral argument on May 15, 1992
and issued a written decision and order on August 31, 1992. She
affirmed the AERC's decision, holding that (a) Swanner's conduct
constituted unlawful discrimination based upon marital status;
(b) enforcement of the state and municipal anti-discrimination
laws does not violate Swanner's constitutional rights, pursuant
to the U.S. Supreme Court's decision in Employment Division,
Department of Human Resources v. Smith, 494 U.S. 872 (1990), and
our decisions in Frank v. State, 604 P.2d 1068 (Alaska 1979) and
Seward Chapel, Inc. v. City of Seward, 655 P.2d 1293 (Alaska
1982); and (c) the automatic finalization of the AERC's decision
did not violate Swanner's due process rights.
C. Proceedings Before This Court
Swanner appealed to this court on September 18, 1992.
He contends that the superior court erred in finding that he
discriminated against the complainants on the basis of marital
status. He claims that he does not discriminate based on marital
status, but even if he does, he is excused from compliance with
the anti-discrimination laws because of his fundamental right to
the free exercise of his religion, guaranteed by the Alaska and
United States Constitutions. He also claims that the automatic
finalization of the AERC's decision violates his due process
rights under the Alaska and United States Constitutions.1
II. DISCUSSION
A. Swanner Violated AMC 5.20.020 and AS
18.80.240 by Discriminating Based on Marital
Status
Swanner argues that he does not discriminate against
individuals based on their marital status because he will rent to
people who are single, married, widowed, divorced, or separated.
However, he will not rent to those whom he expects will engage in
conduct repugnant to his religious beliefs, namely cohabitation
outside of marriage. Swanner considers such cohabitation to be
fornication and immoral.
The AERC responds that the laws at issue do not
recognize a distinction between "marital status" and
"cohabitation." The AERC claims the statutes' plain language
demonstrates that "marital status"includes cohabitating couples.
In Foreman v. Anchorage Equal Rights Comm'n, 779 P.2d
1199, 1201-03 (Alaska 1989), we looked at the plain language of
AS 18.80.2402 and AMC 5.20.0203 and reviewed the intent behind
the anti-discrimination laws. In Foreman, a landlord who refused
to rent to an unmarried couple argued that the laws did not
protect the interests of unmarried couples. Id. at 1201. We
held that the landlord's policy against renting to unmarried
couples unlawfully discriminated on the basis of marital status.
Id. at 1203. We reasoned that because the landlord would have
rented to the prospective tenants had they been married, and he
refused to rent the property only after learning the couple was
not married, "[t]his constitutes unlawful discrimination based on
marital status." Id. The same reasoning applies here. Because
Swanner would have rented the properties to the couples had they
been married, and he refused to rent the property only after he
learned they were not, Swanner unlawfully discriminated on the
basis of marital status.4
B. Enforcement of AMC 5.20.020 and AS
18.80.240 Does Not Violate Swanner's
Constitutional Right to the Free Exercise of
His Religion Under the United States
Constitution
Swanner contends that enforcement of AMC 5.20.020 and
AS 18.80.240 against him has a coercive effect on the free
exercise of his religious beliefs. He believes that compliance
with these laws forces him to choose between his religious
beliefs and his livelihood. He requests that we accommodate his
religious beliefs by creating an exemption to the statute and
ordinance. The AERC responds that "it is not Swanner's religious
beliefs per se which run afoul of our anti-discrimination laws,
but rather his actions and conduct in a commercial setting."
The First Amendment to the United States Constitution
provides that "Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise
thereof; . . ."U.S. Const. amend. I. The Free Exercise Clause
applies to the states by its incorporation into the Fourteenth
Amendment. See Cantwell v. Connecticut, 310 U.S. 296, 303
(1940). It grants absolute protection to freedom of belief and
profession of faith, but only limited protection to conduct
dictated by religious belief. See Employment Div., Dep't of
Human Resources v. Smith, 494 U.S. 872 (1990) (narrowing the
scope of religious exemptions under the Free Exercise Clause by
upholding a statute that criminalized peyote use, as applied to
Native American religious ceremonies).
Swanner claims that we should apply the "compelling
state interest"test set forth in Sherbert v. Verner, 374 U.S.
398 (1963), to determine whether the laws at issue violate his
right to free exercise of religion under the United States
Constitution.5 However, in Smith, the United States Supreme
Court expressly rejected applying the Sherbert test where the law
being challenged is generally applicable, or, in other words,
where the law is not directed at any particular religious
practice or observance.6 Smith, 494 U.S. at 885. "[A] law that
is neutral and of general applicability need not be justified by
a compelling governmental interest even if the law has the
incidental effect of burdening a particular religious practice."
Church of Lukumi Babalu Aye v. City of Hialeah, 113 S. Ct. 2217,
2226 (1993) (citing Smith, 494 U.S. 872 (1990)).7 "Neutrality
and general applicability are interrelated. . . . [F]ailure to
satisfy one requirement is a likely indication that the other has
not been satisfied. A law failing to satisfy these requirements
must be justified by a compelling governmental interest and must
be narrowly tailored to advance that interest."Id. at 2226.
The first step in determining whether a law is neutral
is whether it discriminates on its face. "A law lacks facial
neutrality if it refers to a religious practice without a secular
meaning discernable from the language or context." Id. at 2227.
Neither the ordinance nor the statute contain any language
singling out any religious group or practice.
Even when a law is facially neutral, however, it may
not be neutral if it is crafted to impede particular religious
conduct. Id. These laws clear that hurdle as well. The purpose
of AMC 5.20.020 and AS 18.80.240 is to prohibit discrimination in
the rental housing market.8 Swanner does not claim that the
purpose of the laws is to discriminate against people based on
religion; in fact, he contends that the laws do not even cover
this kind of discrimination. Therefore, the laws satisfy the
requirement of neutrality.
Additionally, these laws are generally applicable.
They apply to all people involved in renting or selling property,
and do not specify or imply applicability to a particular
religious group. Therefore, at least under the general rule, no
compelling state interest is necessary.
Smith provides one ground for judicial exemptions from
compliance with neutral laws of general applicability. A court
may exempt an individual from a law where the facts present a
hybrid situation where an additional constitutionally protected
right is implicated. Smith, 494 U.S. at 881-82. Like the
appellant in Smith, Swanner does not contend that the laws in
question here infringe on any constitutional right other than his
right to free exercise of religion. Consequently, this case does
not present such a "hybrid"situation.
We conclude that enforcing AMC 5.20.020 and AS
18.80.240 against Swanner does not violate his right to free
exercise of religion under the United States Constitution.9
C. Enforcement of AMC 5.20.020 and AS
18.80.240 Does Not Violate Swanner's
Constitutional Right to the Free Exercise of
His Religion Under the Alaska Constitution
Swanner does not dispute that the ordinance and statute
are generally applicable and neutral under Smith, but asserts
that "this decision does not mandate use of a less restrictive
standard by state courts in interpreting state constitutional
protection." Swanner is correct in asserting that a state
court may provide greater protection to the free exercise of
religion under the state constitution than is now provided under
the United States Constitution. See, e.g., Roberts v. State, 458
P.2d 340, 342 (Alaska 1969) ("We are not bound in expounding the
Alaska Constitution's Declaration of Rights by the decisions of
the United States Supreme Court, past or future, which expound
identical or closely similar provisions of the United States
Constitution."). Thus, even though the Free Exercise Clause of
the Alaska Constitution is identical to the Free Exercise Clause
of the United States Constitution, we are not required to adopt
and apply the Smith test to religious exemption cases involving
the Alaska Constitution merely because the United States Supreme
Court adopted that test to determine the applicability of
religious exemptions under the United States Constitution. We
will apply Frank v. State, 604 P.2d 1068 (Alaska 1979), to
determine whether the anti-discrimination laws violate Swanner's
right to free exercise under the Alaska Constitution.10
In Frank v. State, we adopted the Sherbert test to
determine whether the Free Exercise Clause of the Alaska
Constitution requires an exemption to a facially neutral law.11
604 P.2d at 1070. We held that to invoke a religious exemption,
three requirements must be met: (1) a religion is involved, (2)
the conduct in question is religiously based, and (3) the
claimant is sincere in his/her religious belief. Id. at 1071
(citing Wisconsin v. Yoder, 406 U.S. 205, 215-16 (1972)). Once
these three requirements are met, "[r]eligiously impelled actions
can be forbidden only 'where they pose some substantial threat to
public safety, peace or order, or where there are competing
governmental interests 'of the highest order and . . . [are] not
otherwise served. . . .'" Seward Chapel, Inc. v. City of Seward,
655 P.2d 1293, 1301 n.33 (Alaska 1982) (quoting Frank, 604 P.2d
at 1070).
Swanner clearly satisfies the first and third
requirements to invoke an exception to the laws under the Free
Exercise Clause. No one disputes that a religion is involved
here (Christianity), or that Swanner is sincere in his religious
belief that cohabitation is a sin and by renting to cohabitators,
he is facilitating the sin. However, the superior court held
that he did not meet the second requirement that his conduct was
religiously based because "[n]othing in the record permits a
finding that refusing to rent to cohabiting unmarried couples is
a religious ritual, ceremony or practice deeply rooted in
religious belief." Swanner's claim that the superior court
misinterpreted Frank v. State as limiting free exercise rights
only to ritual or ceremony has merit. In Frank, we determined
that the action at issue was a practice deeply rooted in
religion. 604 P.2d at 1072-73. However, we did not intend to
limit free exercise rights only to actions rooted in religious
rituals, ceremonies, or practices. To meet the second
requirement, a party must demonstrate that the conduct in
question is religiously based; this determination is not limited
to actions resulting from religious rituals. Swanner's refusal
to rent to unmarried couples is not without an arguable basis in
some tenets of the diverse Christian faith, and therefore, his
conduct is sufficiently religiously based to meet our
constitutional test. Although Swanner meets the three
preliminary requirements to invoke an exception to the anti-
discrimination laws, the analysis does not end here.
As discussed previously, a religious exemption will not
be granted if the religiously impelled action poses "some
substantial threat to public safety, peace or order or where
there are competing state interests of the highest order."
Frank, 604 P.2d at 1070. The question is whether Swanner's
conduct poses a threat to public safety, peace or order, or
whether the governmental interest in abolishing improper
discrimination in housing outweighs Swanner's interest in acting
based on his religious beliefs.
In our view, the second part of the test adopted in
Frank is applicable here. Under this part of the Frank test, we
must determine whether "a competing state interest of the highest
order exists." "The question is whether that interest, or any
other, will suffer if an exemption is granted to accommodate the
religious practice at issue." Frank, 604 P.2d at 1073. The
government possesses two interests here: a "derivative"interest
in ensuring access to housing for everyone, and a "transactional"
interest in preventing individual acts of discrimination based on
irrelevant characteristics. Most free exercise cases, including
Frank, involve "derivative"state interests. In other words, the
State does not object to the particular activity in which the
individual would like to engage, but is concerned about some
other variable that the activity will affect. This can be
contrasted with a "transactional"interest in which the State
objects to the specific desired activity itself.
For example, in Frank, this court exempted a Central
Alaska Athabascan Indian needing moose meat for a funeral
potlatch from state hunting regulations. The State did not
object to killing moose per se (indeed, it expressly allows moose
hunting in season); the State's derivative interest was in
maintaining healthy moose populations. In the instant case, the
government's derivative interest is in providing access to
housing for all. One could argue that if a prospective tenant
finds alternative housing after being initially denied because of
a landlord's religious beliefs, the government's derivative
interest is satisfied. However, the government also possesses a
transactional interest in preventing acts of discrimination based
on irrelevant characteristics regardless of whether the
prospective tenants ultimately find alternative housing.
We look to Prince v. Commonwealth of Massachusetts, 321
U.S. 158 (1943), as an analogy. In Prince, the United States
Supreme Court refused to grant an exemption to child labor laws
for children distributing religious literature. As in this case,
the state had a transactional interest: preventing exploitation
of children in employment. Thus, the state objected to child
labor, the particular activity at issue, per se, not to an effect
of that activity. The state legislature had prohibited children
from working under certain conditions. Therefore, permitting any
child to work under such conditions resulted in harming the
government's transactional interest. This transactional
government interest does not involve a numerical cutoff below
which the harm is insignificant unlike in Frank.
Similarly, in the instant case, the legislature and
municipal assembly determined that housing discrimination based
on irrelevant characteristics should be eliminated. See Hotel,
Motel, Restaurant, Etc. Union Local 879 v. Thomas, 551 P.2d 942,
945 (Alaska 1976) ("[T]he statutory scheme constitutes a mandate
to the agency to seek out and eradicate discrimination in . . .
the rental of real property."); Loomis Electronic Protection,
Inc. v. Schaefer, 549 P.2d 1341, 1343 (Alaska 1976) (recognizing
the Alaska Legislature's "strong statement of purpose in enacting
AS 18.80, and its avowed determination to protect the civil
rights of all Alaska citizens"); see also AS 18.80.200; AMC
5.10.010. The existence of this transactional interest
distinguishes this case from Frank and most other free exercise
cases where courts have granted exemptions. The government's
transactional interest in preventing discrimination based on
irrelevant characteristics directly conflicts with Swanner's
refusal to rent to unmarried couples. The government views acts
of discrimination as independent social evils even if the
prospective tenants ultimately find housing. Allowing housing
discrimination that degrades individuals, affronts human dignity,
and limits one's opportunities results in harming the
government's transactional interest in preventing such
discrimination. Under Frank, this interest will clearly "suffer
if an exemption is granted to accommodate the religious practice
at issue."
The dissent attempts to prove that the state does not
view marital status discrimination in housing as a pressing
problem by pointing to other areas in which the state itself
discriminates based on marital status. However, those areas are
easily distinguished. The government's interest here is in
specifically eliminating marital status discrimination in
housing, rather than eliminating marital status discrimination in
general. Therefore, the other policies which allow marital
status discrimination are irrelevant in determining whether the
government's interest in eliminating marital status
discrimination in housing is compelling. In the examples
the dissent cites, treating married couples differently from
unmarried couples is arguably necessary to avoid fraudulent
availment of benefits available only to spouses. The difficulty
of discerning whose bonds are genuine and whose are not may
justify requiring official certification of the bonds via a
marriage document. That problem is not present in housing cases:
as this case demonstrates, if anything, an unmarried couple who
wish to live together are at a disadvantage if they claim to be
romantically involved.
It is important to note that any burden placed on
Swanner's religion by the state and municipal interest in
eliminating discrimination in housing falls on his conduct and
not his beliefs. Here, the burden on his conduct affects his
commercial activities. In United States v. Lee, 455 U.S. 252
(1982), the United States Supreme Court stated the distinction
between commercial activity and religious observance:
When followers of a particular sect
enter into commercial activity as a matter of
choice, the limits they accept on their own
conduct as a matter of conscience and faith,
are not to be superimposed on the statutory
schemes which are binding on others in that
activity.
Id. at 261.
Swanner complains that applying the anti-discrimination
laws to his business activities presents him with a "Hobson's
choice"--to give up his economic livelihood or act in
contradiction to his religious beliefs. A similar argument was
advanced in Seward Chapel, where Seward Chapel argued that
applying the city zoning ordinances to prohibit construction of a
parochial school impermissibly burdened the chapel's free
exercise rights. 655 P.2d at 1299. We concluded that "there has
been no showing of a religious belief which requires members of
Seward Chapel to locate in [a specific place]. . . . [T]he
inconvenience and economic burden of which Seward Chapel now
complains is caused largely by the choice to build in [a specific
place]. . ." Id. at 1302 (footnote omitted).
Swanner has made no showing of a religious belief which
requires that he engage in the property-rental business.
Additionally, the economic burden, or "Hobson's choice,"of which
he complains, is caused by his choice to enter into a commercial
activity that is regulated by anti-discrimination laws. Swanner
is voluntarily engaging in property management. The law and
ordinance regulate unlawful practices in the rental of real
property and provide that those who engage in those activities
shall not discriminate on the basis of marital status. See
AS 18.80.240; AMC 5.20.020. Voluntary commercial activity does
not receive the same status accorded to directly religious
activity. Cf. Frank v. State, 604 P.2d at 1075 (exempting an
Athabascan Indian from state hunting regulations "to permit the
observance of the ancient traditions of the Athabascans").
"As [James] Madison summarized the point, free exercise
should prevail in every case where it does not trespass on
private rights or the public peace." Michael W. McConnell, Free
Exercise Revisionism and the Smith Decision, 57 Chi. L. Rev.
1109, 1145 (1990) (citation omitted). Because Swanner's
religiously impelled actions trespass on the private right of
unmarried couples to not be unfairly discriminated against in
housing, he cannot be granted an exemption from the housing anti-
discrimination laws. Therefore, we conclude that enforcement of
AMC 5.20.020 and AS 18.80.240 against Swanner does not violate
his right to free exercise of religion under the Alaska
Constitution.
D. The AERC Did Not Deprive Swanner of Due
Process of Law
1. AMCR 5.10.015(A) is Not
an Unconstitutional Delegation by
the AERC
Anchorage Municipal Code 5.10.040 authorizes the AERC:
(a) to hold public hearings; (b) to administer oaths and issue
subpoenas; (h) to delegate to its executive director all powers
and duties except the power to hold hearings and issue orders;
and (i) to adopt procedural and evidentiary rules necessary to
fulfill the intent of Title 5. AMC 5.10.040. The AERC's power
to "adopt procedural and evidentiary rules"is effectuated by
promulgating municipal regulations.
Anchorage Municipal Code of Regulations (AMCR) provides
the scope of the hearing examiner's recommendation.
The hearing examiner . . . shall rule on
the admissibility of evidence and other
procedural matters. On any question which
would be determinative of the jurisdiction of
the commission or of the culpability of any
party, the hearing examiner . . . may only
make recommendations to the full commission.
AMCR 5.10.013(C)(2).12 Additionally, "[a]ll recommendations of
the hearing examiner . . . shall be consistent with commission
decisions and regulations." AMCR 5.10.013(C)(4).
AMCR 5.10.015(A) states:
After a party . . . receives the hearing
examiner's . . . proposed findings of fact,
conclusions of law and proposed order, that
person or his/her representative may, within
10 days or such other time fixed by the
chair, present written objections to the
commission. If no party files an objection
within ten days, the proposal shall become
final.
Swanner claims that AMCR 5.10.015(A) directly conflicts
with AMCR 5.10.013(C)(2) because "[Section] 5.10.015 appears to
permit the commission to adopt the hearing examiner's recommen
dations without ever considering its content, rationale or
rectitude." He interprets AMCR 5.10.013(C)(2) as authorizing
only "the full commission"to determine a question which is
determinative of jurisdiction or of the culpability of a party;
Swanner asserts that his culpability in housing discrimination
was at issue. He contends that the AERC abdicated its
responsibility by adopting the hearing examiner's recommendation,
and, therefore, the AERC violated AMCR 5.10.013.
Swanner is correct that the hearing examiner did not
have the authority to determine Swanner's culpability. Instead
he had the authority to make a recommendation, which is exactly
what he did. Hearing Examiner Landau made a recommendation to
the AERC and the AERC decided to adopt it. Therefore, no
conflict exists between AMCR 5.10.013(C)(2) and AMCR 5.10.015(A),
and the AERC followed its own regulations in adopting the hearing
examiner's recommendation.13
2. The Regulations Do Not
Require an Independent Review by
the AERC
Swanner finds fault with this process and complains
that the AERC's regulations do not grant it authority to approve
a hearing examiner's decision without conducting an independent
review. No rule of procedure provides that the AERC must
independently review the hearing examiner's recommendations.
AMCR 15.10.015(B) expressly provides for the AERC's review of the
hearing examiner's recommendations after a party timely files an
objection. Swanner did not file an objection; therefore, the
regulations required no independent review by the AERC.
3. Due Process Did Not Require
That the AERC Personally Notify Swanner
That It Would Adopt the Hearing
Examiner's Recommendation Absent an
Objection Within Ten Days
Swanner claims the AERC's adoption of the hearing
examiner's recommendation violated his constitutional right to
due process of law. Both the Alaska and United States
Constitutions provide that a person shall not be deprived of
"life, liberty, or property, without due process of law." Alaska
Const., Art. 1, 7; U.S. Const. amend. XIV, 1. "Due process
requires 'that deprivation of life, liberty or property by
adjudication be proceeded by notice . . . appropriate to the
nature of the case.'"Wickersham v. State Com. Fisheries Entry
Comm'n, 680 P.2d 1135, 1144 (Alaska 1984) (quoting Mullane v.
Central Hanover Bank and Trust Co., 229 U.S. 306, 313 (1950)).
This court held "[a]n elementary and fundamental requirement of
due process in any proceeding which is to be accorded finality is
notice reasonably calculated, under all the circumstances, to
apprise interested parties of the pendency of the action."
Aguchak v. Montgomery Ward Co., Inc., 520 P.2d 1352, 1356 (Alaska
1974) (adopting Mullane language for analysis under the Alaska
Constitution).
Swanner states that he did not receive notice that his
failure to object to the hearing examiner's recommended decision
would result in the AERC making the decision final. He claims
that he became aware of the AERC's intent to approve the hearing
examiner's recommended decision the day after objections to the
proposed order were due, when the AERC issued a memorandum
stating the proposed order became final. Therefore, he claims he
was not given "notice reasonably calculated, under all the
circumstances, to apprise [him] of the pendency of the action, as
required by Alaska law."
Swanner cannot claim that he was unaware of the
pendency of this action. The actual hearing in this matter
occurred on October 9 and 11, 1990, and Swanner participated in
seven months of formal pre-hearing procedures and discovery.
Swanner was clearly aware of the "pendency of this action."
Moreover, AMCR 5.10.015 was readily available to Swanner and the
public from both the AERC and the State Law Library.
Accordingly, the AERC did not deny Swanner due process.
III. CONCLUSION
We hold that Swanner impermissibly discriminated
against Bowles, Harper, and Moose because he would not rent to
them based on their marital status. The Free Exercise Clause of
the United States and Alaska Constitutions do not permit Swanner
to disobey the state and municipal anti-discrimination laws by
entitling him to an exemption. The AERC did not deny Swanner his
right to due process by following its procedural regulations.
The AERC's final order and the superior court's opinion
are AFFIRMED.
MOORE, Chief Justice, dissenting.
Article I, section 4 of the Alaska Constitution
declares that "[n]o law shall be made respecting an establishment
of religion, or prohibiting the free exercise thereof." As the
majority correctly recognizes, this provision may provide greater
protection of free exercise rights than is now provided under the
United States Constitution. Opinion at 12-13. Accordingly,
while the United States Supreme Court has adopted a new test to
analyze free exercise claims such as the one at issue here,14 the
majority agrees that we will continue to apply the compelling
interest test in interpreting the free exercise clause of the
Alaska Constitution. Opinion at 13.
Our decision in Frank v. State, 604 P.2d 1068 (Alaska
1979), sets forth the framework from which we must determine
whether AMC 5.20.020 and AS 18.80.240 violate Swanner's right to
the free exercise of his religion. As we stated in Frank, "[n]o
value has a higher place in our constitutional system of
government than that of religious freedom." 604 P.2d at 1070.
For this reason, a facially neutral statute or ordinance which
interferes with religious-based conduct must be justified by a
compelling state interest. Id. Absent such an interest, our
constitution requires an exemption from the laws at issue to
accommodate religious practices. Id. at 1070-71.
The majority acknowledges that Swanner's actions fall
within the ambit of the free exercise clause. Swanner has shown
that his refusal to rent apartments to unmarried individuals who
plan to live with a member of the opposite sex is based on his
Christian faith, which strictly proscribes such cohabitation. No
one questions the sincerity of his religious belief that he
facilitates a sin by renting to unmarried individuals such as the
complainants in this case. See Opinion at 15-16. For this
reason, Swanner's religiously impelled conduct must be protected
under Alaska law unless the AERC can show that the conduct poses
"some substantial threat to public safety, peace or order," or
that there exist competing governmental interests "of the highest
order" which are not otherwise served without limiting Swanner's
conduct. Frank, 604 P.2d at 1070 (citing Wisconsin v. Yoder, 406
U.S. 205, 215 (1972) and Sherbert v. Verner, 374 U.S. 398, 403
(1963)); Seward Chapel, Inc. v. City of Seward, 655 P.2d 1293,
1301 n.33 (Alaska 1982). I do not believe the AERC has met its
burden in this case. I would therefore grant Swanner an
exemption to accommodate his religious beliefs.
First, I note that in determining that the governmental
interest in this case is "of the highest order," the majority
announces an entirely new and unnecessary test examining the
state's "transactional"and "derivative"interests. Opinion at
16-17. Under this analysis, the majority concludes that the
state has a transactional, or per se, interest in preventing
"individual acts of discrimination based on irrelevant
characteristics"which overrides Swanner's free exercise rights
in this case. Because the interest is "transactional," the
majority concludes that no evidentiary basis is required to show
that rental housing for unmarried couples has become scarce.
However, before the court would enforce the state's "derivative"
interest in "ensuring access to housing for everyone,"the AERC
apparently would have to make an evidentiary showing that
cohabitating couples have experienced hardship in finding
available housing, i.e., that Swanner's conduct poses a
"substantial threat to public safety, peace or order." Frank,
604 P.2d at 1070.
In my opinion, this amorphous analysis of the state's
interests ultimately will prove to be useless in resolving future
free exercise cases. Even in this case, I do not believe it
provides a useful distinction of the interests at issue. For
example, the majority determines that the state has a per se
objection to marital status discrimination in housing which
overcomes Swanner's free exercise rights. The majority defines
this interest as that in "preventing acts of discrimination based
on irrelevant characteristics." Opinion at 17. Such an
articulation of the state's interest poses myriad questions. Who
is to determine what is an "irrelevant" characteristic?
Obviously, marital status is not "irrelevant"to Swanner. It is
central to the question whether he will be committing a sin under
the dictates of his religion. Is the legislative branch the
final arbiter of relevancy or irrelevancy? Further, the
discrimination at issue here is not based on innate
"characteristics"but rather on the conduct of potential tenants.
While this conduct is worthy of some protection, it does not
warrant the same constitutional protection given to religiously
compelled conduct. I am not willing to place the right to
cohabitate on the same constitutional level as the right to
freedom from discrimination based on either innate
characteristics -- such as race or gender -- or constitutionally
protected belief, such as freedom of religion.
In addition, it remains unclear to me how the state's
"derivative"interests are to be identified. Here, that interest
is defined with little explanation as being the state's interest
in "providing access to housing for all." Opinion at 17. Does
this mean the state has no per se objection to the fact that some
individuals may have limited access to housing? In Frank, could
it not be said that the state had a per se interest in enforcing
its hunting regulations?
In Frank, this court set forth a workable and
sufficient guide to determine whether a governmental interest is
sufficiently compelling to overcome an individual's free exercise
rights. 604 P.2d at 1070. It seems to me that the majority's
effort to expand this analysis adds little to the actual analysis
of interests at stake. To the contrary, I see the majority's
expansion of Frank as little more than a strained effort to
distinguish Frank from the present situation when such a
distinction is not logically justified. In this effort, the
majority totally ignores the record in this case, and it engages
in a game where the "transactional" or "derivative" label
attached to any given state interest predetermines the outcome of
the case.
There is no governmental interest "of the highest
order" to justify the burden on Swanner's fundamental
rights.
Even applying the framework announced by the court in
analyzing whether the state's interest is "of the highest order,"
I cannot agree with the court's reasoning and resulting decision.
In essence, the majority's conclusion is that marital status
discrimination constitutes such an affront to human dignity that
the state has a per se obligation "of the highest order" to
prevent it. Based on my analysis of free exercise jurisprudence
and the issues surrounding marital status discrimination, I
cannot conclude that eradication of marital status discrimination
in the rental housing industry constitutes a governmental
interest of such high order as to justify burdening Swanner's
fundamental constitutional rights.15
There can be no question that the state has a
compelling interest in eradicating discrimination against certain
historically disadvantaged groups. See, e.g., Bob Jones
University v. United States, 461 U.S. 574, 593-95 (1983) (racial
discrimination); Roberts v. United States Jaycees, 468 U.S. 609,
625 (1984) (gender discrimination). This compelling interest has
been found to exist based on a determination that the
discrimination at issue is so invidious to personal dignity and
to our concept of fair treatment as to warrant strict protection.
There is no question that Swanner's right to freely exercise his
religion could and should be burdened if he engaged in such
discrimination as a result of his religious beliefs.
This fact does not mean, however, that every form of
discrimination is equally invidious or that the state's interest
in preventing it necessarily outweighs fundamental constitutional
rights. Rather, the cases which have upheld an imposition on
free exercise have articulated certain specific reasons that some
forms of discrimination are of particular governmental interest
and deserving of heightened judicial scrutiny. In Bob Jones
University v. United States, 461 U.S. 574 (1983), for example,
the Supreme Court refused to grant tax-exempt status to schools
that maintained racially discriminatory policies under their
interpretation of the Bible. In doing so, the Court discussed
this nation's long history of officially sanctioned racial
segregation and discrimination in education. It further noted
that, since the late 1950s, every pronouncement of the Supreme
Court and myriad Acts of Congress and Executive Orders attested
to a national policy prohibiting such discrimination. Id. at 594-
95, 604. It therefore concluded that "[t]here can no longer be
any doubt that racial discrimination in education violates deeply
and widely accepted views of elementary justice." Id. at 592.
Accordingly, the government's interest in eradicating racial
discrimination in education was found to be compelling.
Similarly, in Roberts v. United States Jaycees, 468
U.S. 609 (1984), the Supreme Court declared that the state's
compelling interest in eradicating discrimination against its
female citizens justified any minimal interference with an all-
male organization's freedom of expressional association. In
analyzing the weight of the state's interest, the Court discussed
the invidious nature of gender bias, stating:
[D]iscrimination based on archaic and
overbroad assumptions about the relative
needs and capacities of the sexes forces
individuals to labor under stereotypical
notions that often bear no relationship to
their actual abilities. It thereby both
deprives persons of their individual dignity
and denies society the benefits of wide
participation in political, economic, and
cultural life.
Id. at 625 (citations omitted). The Court also observed that
society generally had recognized the importance of removing "the
barriers to economic advancement and political and social
integration that have historically plagued certain disadvantaged
groups, including women." Id. at 626. Based on these
conclusions, it was no stretch to find that the state possessed a
compelling interest in eradicating gender discrimination, and
that this interest was sufficient to overcome the Jaycees' First
Amendment claim. Id. at 626-29.
The majority today avoids engaging in any similar
analysis of marital status discrimination to explain why or how
it is so damaging to human dignity to become of such governmental
import as to overcome a fundamental constitutional right.16 This
analysis is critical. The majority cites no evidence that
marital status classifications have been associated with a
history of unfair treatment that would warrant heightened
governmental protection.17 To the contrary, I believe the law is
clear that marital status classifications have been accorded
relatively low import on the scale of interests deserving
governmental protection. For instance, the government itself
discriminates based on marital status in numerous regards, and
there is no suggestion that this practice should be reexamined.
Alaska law explicitly sanctions such discrimination. See, e.g.,
AS 13.11.015 (intestate succession does not benefit unmarried
partner 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
communication 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 insurance policy).
In addition, marital status classifications have never
been accorded any heightened scrutiny under the Equal Protection
Clause of either the federal or the Alaska Constitutions.
Disparate treatment of individuals based on classifications such
as race, on the other hand, are reviewed under the highest
scrutiny. See, e.g., Korematsu v. United States, 323 U.S. 214
(1944) (restrictions curtailing the civil rights of a single
racial group are immediately suspect and deserve strict scrutiny
analysis). Gender-based classifications are similarly analyzed
under a heightened level of scrutiny at the federal level. See,
e.g., Wengler v. Druggists Mut. Ins. Co., 446 U.S. 142, 150
(1980) (gender-based discrimination must serve important
governmental objectives and the discriminatory means employed
must be substantially related to the achievement of those
objectives). The sliding scale approach to equal protection
analysis under the Alaska Constitution similarly applies a
heightened level of scrutiny to laws burdening racial minorities
or other suspect classifications. See State v. Ostrosky, 667
P.2d 1184, 1193 (Alaska 1983) ("[L]aws which embody
classification schemes that are more constitutionally suspect,
such as laws discriminating against racial or ethnic minorities,
are more strictly scrutinized."); State v. Erickson, 574 P.2d 1,
11-12 (Alaska 1978) (where fundamental rights or suspect
categories are involved, equal protection analysis under the
Alaska Constitution requires a compelling state interest).
At the federal level, the eradication of marital status
discrimination in the housing context clearly has not been
treated as a compelling interest.18 Neither the Federal Fair
Housing Act, 42 U.S.C. 3604 (1988), nor the Federal Civil
Rights Act, 42 U.S.C. 1981 and 1982 (1988), would prohibit the
precise form of marital status discrimination at issue here,
unless it was being used as a pretext for a more egregious form
of discrimination, such as that based on race. See Marable v. H.
Walker & Assocs., 644 F.2d 390, 397 (5th Cir. 1981) (finding a
violation of the fair housing and civil rights statutes only
after concluding that, although the landlord asserted that he
refused to rent housing based on the applicant's marital status,
this excuse was a mere pretext for racial discrimination); see
also James A. Kushner, The Fair Housing Amendments Act of 1988:
The Second Generation of Fair Housing, 42 Vand. L. Rev. 1049,
1106 (1989) (the Fair Housing Act does not protect unmarried
couples from a landlord's refusal to rent unless a case can be
made that the marital status discrimination is merely a pretext
for racial, ethnic, religious or gender-based discrimination).
My research has not revealed a single instance in which
the government's interest in eliminating marital status
discrimination has been accorded substantial weight when balanced
against other state interests, let alone fundamental
constitutional rights. I find nothing to suggest that marital
status discrimination is so invidious as to outweigh the
fundamental right to free exercise of religion.
The majority comments that its result today is
justified because Swanner's right to the free exercise of his
religious beliefs must be accorded less weight since he has
entered the commercial arena. Opinion at 19-21. As discussed
above, it is well-accepted that an individual's right to
religious freedom will not and cannot always override other
interests. See, e.g., United States v. Lee, 455 U.S. 252, 261
(1982) (rejecting Amish employer's claim that imposition of
social security taxes violated his free exercise rights).
However, neither Lee nor any other case of which I am aware
stands for the proposition that individuals like Swanner
altogether waive their constitutional right to the free exercise
of religion simply because a conflict between their religious
faith and some legislation occurs in a commercial context. To
the contrary, the Lee Court recognized that, even in a commercial
setting, the state must justify its limitation on religious
liberty by showing the limitation is "essential to accomplish an
overriding governmental interest." Id. at 257-58. The AERC has
simply failed to meet that burden here.
The majority suggests that Swanner's constitutional
rights must be accorded lesser weight because he voluntarily
engages in the property management industry, and his right to
engage in that business is not entitled to judicial protection.
Opinion at 20-21. However, this court has stated that "the right
to engage in an economic endeavor within a particular industry is
an 'important' right for state equal protection purposes." State
v. Enserch Alaska Constr., Inc., 787 P.2d 624, 632 (Alaska 1989)
(citing Commercial Fisheries Entry Comm'n v. Apokedak, 606 P.2d
1255, 1266 (Alaska 1980)). The ability to participate in a
particular industry, such as rental property management, is
therefore entitled to more protection under our state
constitution than the majority acknowledges.
The majority incorrectly relies on Seward Chapel to
arrive at its contrary conclusion. Unlike the present case,
Seward Chapel did not involve a forced decision between giving up
one's livelihood or violating one's religious beliefs. In Seward
Chapel, we merely found that no religious belief required an
exception to city zoning laws prohibiting the location of a
parochial school on a specific site. 655 P.2d at 1302. No
activity was totally prohibited; only the place in which it could
be conducted was being regulated. I believe that there is a
significant difference between the inconvenience placed upon
Seward Chapel and the total abrogation of Mr. Swanner's right to
earn a living in his chosen profession while abiding by his
sincerely held religious beliefs.
There is no basis in the record to conclude that
an exemption in this case would create a substantial
threat of harm.
In Frank, this court required that the state establish
precisely how its interest would suffer if an exemption was
granted to accommodate the religious conduct at issue. 604 P.2d
at 1073. Thus, even accepting that the government has a strong
interest in assuring available housing, the AERC must show how
this interest will suffer in real terms if an exemption is
granted to Swanner. I see no evidence whatsoever in the
record to suggest that Swanner's conduct poses a substantial
threat to public safety, peace or order such that the burden on
Swanner's rights is justified. For this reason, I fail to see
why an exemption to accommodate Swanner's religious beliefs is
not warranted. Mere speculation that housing for unmarried
couples may become scarce if an exemption is granted is
insufficient to establish a compelling governmental interest. In
Frank, we specifically criticized the state for speculating,
without any supporting data, that an exemption to moose hunting
regulations for an Athabascan funeral potlatch would open the
flood gates to widespread poaching. Id. at 1074. We stated:
"'Justifications founded only on fear and apprehension are
insufficient to overcome rights asserted under the First
Amendment.'" Id. (quoting Teterud v. Burns, 522 F.2d 357, 361-62
(8th Cir. 1975)). We further found that, since the state had not
presented any evidence that so many moose would be taken for
funeral potlatch ceremonies as to jeopardize appropriate
population levels, it had not met its burden to justify
curtailing the religious practice at issue. Id.19
As in Frank, the record here is completely devoid of
any evidence to suggest that there are so many landlords or
property managers in Anchorage whose religious beliefs are
identical to Swanner's as to constitute a substantial threat to
available housing. In a city the size of Anchorage, it is
difficult to conclude based on intuition alone that housing
availability for unmarried couples will become so scarce as to
constitute a substantial threat to community welfare. If there
were some persuasive evidence to support such a conclusion, I may
well have arrived at a different conclusion today.
Conclusion
I believe Swanner has been presented with a Hobson's
choice of either complying with the law or abandoning the
precepts of his religion. Since the government's interest in
this particular law does not outweigh Swanner's fundamental
religious rights, Swanner should be granted an exemption to
accommodate his beliefs. The AERC relies on nothing more than a
pure conclusion that the state has a compelling interest in
preventing marital status discrimination in housing. It has not
presented any evidence that an exemption in this case would
result in a substantial threat to housing availability. Nor does
it explain exactly what is so invidious about marital status
discrimination as to make its proscription a governmental
interest of the highest order, comparable with the state's
interest in eradicating racial or gender discrimination. For
these reasons, I fail to see how a limited exemption for Swanner
and others similarly situated is not justified. In my opinion,
the analysis and result set forth in this case will return to
haunt this court in future decisions.
_______________________________
1 Each issue involves the interpretation and construction
of laws and regulations. On questions of law arising on appeal
which do not involve particularized agency expertise, this court
applies its independent judgment. Kodiak Island Borough v. State
of Alaska, Dep't of Labor, 853 P.2d 1111, 1113 (Alaska 1993);
Alaska Transp. Comm'n v. Airpac, Inc., 685 P.2d 1248, 1252
(Alaska 1984). Thus, as the superior court found and both
parties agree, the substitution of judgment standard is the
appropriate standard of review on the issues Swanner has raised.
2 Alaska Statute 18.80.240 states:
Unlawful practices in the sale or rental
of real property. It is unlawful . . .
(1) to refuse to sell, lease,
or rent the real property to a person
because of sex, marital status, changes
in marital status,
. . . .
(3) to make a written or oral
inquiry or record of the sex, marital
status, changes in marital status . . .
of a person seeking to buy, lease or
rent real property;
. . . .
(5) to represent to a person
that real property is not available for
inspection, sale, rental, or lease when
in fact it is so available, or to refuse
to allow a person to inspect real
property because of the . . . marital
status, change in marital status . . .
of that person . . . .
3 AMC 5.20.020 provides:
Except in the individual home wherein
the renter or lessee would share common
living areas with the owner, lessor, manager,
agent or other person, it is unlawful. . .
A. To refuse to . . . rent the real
property to a person because of . . . marital
status . . .;
. . .
C. To make a written or oral inquiry or
record of the . . . marital status . . . of a
person seeking to . . . rent real property;
. . .
E. To represent to a person that real
property is not available for inspection
. . . [or] rental . . . when in fact it is
available, or to refuse a person the right to
inspect real property, because of the . . .
marital status . . . of that person . . . ;
4 Swanner agrees that the laws at issue forbid
discrimination on the basis of marital status. However, he
contends that he did not discriminate against anyone on the basis
of his or her marital status. Instead, he asserts that he
discriminates on the basis of conduct, which is not prohibited by
the statutes.
The definition of "cohabit"demonstrates that marital
status and conduct are inextricably combined. "Cohabit" means
"to live together in a sexual relationship when not legally
married." The American Heritage Dictionary 259 (1980). Swanner
cannot reasonably claim that he does not rent or show property to
cohabitating couples based on their conduct (living together
outside of marriage) and not their marital status when their
marital status (unmarried) is what makes their conduct immoral in
his opinion. The undisputed facts demonstrate that Swanner would
have rented to the prospective tenants if they were married.
Swanner's argument that he discriminated against the prospective
tenants based on their conduct and not their marital status is
without merit.
5 Under this balancing test, a law that incidentally
burdens a religious practice must be justified by a compelling
governmental interest. See Sherbert, 374 U.S. at 403, 406.
6 The Court stated:
We conclude today that the sounder
approach, and the approach in accord with the
vast majority of our precedents, is to hold
the test inapplicable to such challenges.
The government's ability to enforce generally
applicable prohibitions of socially harmful
conduct, like its ability to carry out other
aspects of public policy, "cannot depend on
measuring the effects of a governmental
action on a religious objector's spiritual
development." To make an individual's
obligation to obey such a law contingent upon
the law's coincidence with his religious
beliefs, except where the State's interest is
"compelling"-- permitting him, by virtue of
his beliefs, "to become a law unto himself,"
-- contradicts both constitutional tradition
and common sense.
494 U.S. at 885 (citations and footnote omitted).
7 In Church of Lukumi Babalu Aye v. City of Hialeah, 113
S. Ct. 2217 (1993), the Court used the Free Exercise Clause to
strike down city ordinances that regulated animal sacrifice, but
effectively prohibited only sacrifice practices of the Santeria
religion. The Court held the ordinances failed to satisfy the
Smith requirements because they were not neutral, generally
applicable, nor narrowly tailored, and did not advance compelling
governmental interests.
8 Alaska Statute 18.80.200 states the purpose of the anti-
discrimination laws:
(a) It is determined and declared as a
matter of legislative finding that
discrimination against an inhabitant of the
state because of race, religion, color,
national origin, age, sex, physical or mental
disability, marital status, changes in
marital status, pregnancy or parenthood is a
matter of public concern and that this
discrimination not only threatens the rights
and privileges of the inhabitants of the
state but also menaces the institutions of
the state and threatens peace, order, health,
safety and general welfare of the state and
its inhabitants.
(b) Therefore, it is the policy of the
state and the purpose of this chapter to
eliminate and prevent discrimination in
employment, in credit and financing
practices, in places of public accommodation,
in housing accommodations and in the sale,
lease, or rental of real property because of
race, religion, color, national origin, sex,
age, physical or mental disability, marital
status, changes in marital status, pregnancy
or parenthood.
9 Shortly before the publication of this opinion, the
United States Congress passed the Religious Freedom Restoration
Act of 1993, 107 Stat. 1488 (1993). That act replaced the Smith
test with the compelling interest test. Assuming that the Act is
constitutional and applies to this case, it does not affect the
outcome, because we hold in the next section that compelling
state interests support the prohibitions on marital status
discrimination. The most effective tool the state has for
combatting discrimination is to prohibit discrimination; these
laws do exactly that. Consequently, the means are narrowly
tailored and there is no less restrictive alternative.
10 Swanner notes that two jurisdictions have held that a
landlord may refuse to rent to unmarried couples because of
his/her religious beliefs. He cites to decisions from Minnesota
and California for the proposition that enforcement of the anti-
discrimination laws against him violates his right to free
exercise. In Minnesota v. French, 460 N.W.2d 2 (Minn. 1990), the
Minnesota Supreme Court held that a landlord's refusal to rent to
an unmarried couple did not violate Minnesota's anti-
discrimination laws and enforcing such laws would violate the
landlord's free exercise right. However, in French, the anti-
discrimination laws at issue did not define or otherwise explain
the term "marital status." The court concluded that the
Minnesota Legislature did not intend to include unmarried couples
in the definition. Cf. Foreman, 779 P.2d at 1203 (holding
unmarried couples are included within the state and municipal
prohibitions against discrimination based on marital status).
Moreover, the Minnesota court relied on the criminal anti-
fornication statute then in effect. In contrast, Alaska's
fornication provision was repealed well before the discriminatory
conduct giving rise to this case occurred. Compare French, 460
N.W.2d at 10, with Foreman, 779 P.2d at 1202. Further, the
French court relied on the Minnesota Constitution, article I,
section 16, which contains very different language from the
Alaska Constitution. See French, 460 N.W.2d at 9.
In Donahue v. Fair Employment Housing Comm'm, 2 Cal.
Rptr. 32 (Cal. App. 1991), review granted and opinion superseded,
825 P.2d 766 (Cal. 1992), review dismissed as improvidently
granted and remanded, 859 P.2d 671 (Cal. 1993), the California
Court of Appeal held that although the landlords' conduct did
constitute prohibited marital status discrimination, the
landlords were entitled to an exemption from the anti-
discrimination laws because of their religious beliefs. The
court based its decision "on independent state constitutional
grounds." 2 Cal. Rptr. 2d at 40. However, the California
Supreme Court depublished the court of appeal's opinion, thereby
rendering the decision uncitable.
Neither case provides this court with meaningful
guidance in interpreting the Free Exercise Clause of the Alaska
Constitution.
11 In Seward Chapel, Inc. v. City of Seward, this court
held, "Our ruling in Frank establishes that there are situations
in which the Alaska Constitution requires the state or a
municipality to except from a facially neutral law persons whose
religious beliefs dictate that they not comply with the law."655
P.2d 1293, 1301 (Alaska 1982) (footnote omitted).
12 On February 16, 1993, the AERC repealed AMCR 5.10.013
and 5.10.015. See AMCR 5.60.003(F), 5.60.012(C), (D) for the new
regulations replacing these sections.
We apply the regulations as they existed when Swanner's
case began at the agency level.
13 Where an agency interprets its own regulations, a
deferential standard of review properly recognizes that the
agency is best able to discern its intent in promulgating the
regulation at issue. Rose v. Commercial Fisheries Entry Comm'n,
647 P.2d 154, 161 (Alaska 1982) (citing Kenneth C. Davis,
Administrative Law Treatise 7.22, at 105-08 (2d ed. 1979)).
14 See Employment Div., Dep't of Human Resources v.
Smith, 494 U.S. 872, 884-90 (1990).
15 Significantly, the majority cites no cases to
support the proposition that the state has a compelling interest
in eradicating marital status discrimination, particularly when
the discrimination at issue must be balanced against interests of
constitutional magnitude. Both Loomis Elec. Protection, Inc. v.
Schaefer, 549 P.2d 1341 (Alaska 1976), and Hotel, Motel,
Restaurant, Constr. Camp Employees and Bartenders Union Local 879
v. Thomas, 551 P.2d 942 (Alaska 1976), cite the general purpose
statement of AS 18.80.200; however, neither case does so to
establish the existence of a compelling state interest. Both
cases involved gender discrimination, the eradication of which
has been held to be a compelling interest, as I discuss infra.
Neither case is applicable to the instant case, where marital
status discrimination is involved and where the discriminating
party is asserting a core constitutional freedom.
16 While the majority contends that its decision
today affects only Swanner's conduct, not his religious beliefs,
Opinion at 19-20, I do not believe that the Alaska Constitution
distinguishes so clearly between religious belief and religious
conduct. See Frank, 604 P.2d at 1070 (because of the close
relationship between conduct and belief, and because of the high
value we assign to religious beliefs, religiously impelled
actions can be forbidden only where they are outweighed by a
compelling governmental interest). See also Wisconsin v. Yoder,
406 U.S. 205, 220 (1972) ("[B]elief and action cannot be neatly
confined in logic-tight compartments."); Smith, 494 U.S. at 893
(O'Connor, J., concurring) ("Because the First Amendment does not
distinguish between religious belief and religious conduct,
conduct motivated by sincere religious belief, like the belief
itself, must therefore be at least presumptively protected by the
Free Exercise Clause."). I would hold that conduct that is
motivated by sincere religious belief is presumptively protected
by Article I, section 4.
17 The majority pronounces that "the government views
acts of discrimination as independent social evils. . . ."
Opinion at 18. This analysis ignores the specific issue here:
discrimination in housing based on marital status. Had Swanner's
religious beliefs compelled him to discriminate based on
characteristics such as race or gender, I clearly would vote to
deny an exemption. However, I am not convinced that marital
status discrimination is or should be treated as comparable in
any way to race or gender discrimination.
18 While I recognize that Alaska's antidiscrimination
legislation is not substantially similar to comparable federal
laws -- see, e.g., Hotel, Motel, Restaurant, Constr. Camp
Employees and Bartenders Union Local 879 v. Thomas, 551 P.2d 942,
945 (Alaska 1976) -- the majority's failure to cite any authority
for a compelling interest at the state level in this case leads
me to make this comparison for further guidance.
19 Our requirement of evidentiary support for the
state's refusal to grant an exemption is well-supported by United
States Supreme Court precedent. See Thomas v. Review Bd. of
Indiana Employment Sec. Div., 450 U.S. 707, 719 (1981) (rejecting
state's asserted reasons for refusing a religious exemption due
to lack of evidence in the record); Wisconsin v. Yoder, 406 U.S.
205, 224-29 (1972) (rejecting state's argument concerning the
dangers of a religious exemption as speculative and unsupported
by the record); Sherbert v. Verner, 374 U.S. 398, 407 (1963)
("[T]here is no proof whatever to warrant such fears . . . as
those which the [state] now advance[s]."); see also Smith, 494
U.S. at 911 (Blackmun, J., dissenting) (state's assertion that
religious exemption for peyote use would harm health and safety
of state citizens is unsupported and speculative).
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