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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Thomas v. Anchorage Equal Rights Commission (12/10/2004) sp-5850

Thomas v. Anchorage Equal Rights Commission (12/10/2004) sp-5850

     Notice:   This opinion is subject to 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, phone (907) 264-0608, fax (907) 264-0878,


and JEFFREY BUBNA,                      )    Supreme Court Nos. S-
     Appellants/Cross-Appellees,   )    Superior Court No.   3AN-
01-7003 CI
     v.                                           )
HALEY in her Official Capacity  as  )    [No. 5850 - December 10,
the Executive Director of the      )
FOR HUMAN RIGHTS,             )
     Appellees/Cross-Appellants.   )

          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Sharon L. Gleason, Judge.

          Appearances:  Kevin G. Clarkson, Brena,  Bell
          &     Clarkson,    P.C.,    Anchorage,    for
          Appellants/Cross-Appellees.    Constance   E.
          Livsey and Krista Schwarting, Holmes Weddle &
          Barcott,  Anchorage, for Appellees  Anchorage
          Equal  Rights Commission and the Municipality
          of  Anchorage.   Robert A.  Royce,  Assistant
          Attorney  General, Anchorage,  and  Gregg  D.
          Renkes,   Attorney   General,   Juneau,   for
          Appellee/Cross-Appellant Haley.

          Before:   Bryner,  Chief  Justice,  Matthews,
          Eastaugh, Fabe, and Carpeneti, Justices.

          BRYNER, Chief Justice.

          The  Alaska  Statutes and the Anchorage Municipal  Code

both prohibit landlords from refusing to rent property to persons

because  of  marital  status.1  Ten  years  ago,  in  Swanner  v.

Anchorage  Equal Rights Commission, we held that enforcing  these

provisions against an Anchorage landlord who refused to  rent  to

unmarried  couples  on  religious grounds  did  not  violate  the

landlords  right  to  free exercise of  his  religion.2   In  the

present  case, similarly situated landlords urge us  to  overrule

Swanner, insisting that the state and municipal fair housing laws

violate  their  freedoms  of  religion  and  speech,  and   other

protected  rights.   But  since the landlords  have  not  clearly

convinced  us that Swanner was wrongly decided, or is  no  longer

sound,  or  that more good than harm would be done  by  departing

from precedent, we apply the rule of stare decisis and decline to

reexamine  our  holding.  Because Swanner controls the  landlords

claims, we affirm the superior courts order dismissing the case.


          Alaska  Statute 18.80.240 makes it unlawful .  .  .  to

refuse  to sell, lease, or rent . . . real property to  a  person

because  of sex, marital status, [or] changes in marital  status;

this statute further prohibits landlords from inquiring about the

marital   status  of  prospective  tenants  or  representing   to

prospective tenants that property is not available because of the

tenants marital status.3  Anchorage Municipal Code  5.20.020 sets

out   parallel  prohibitions.4  The municipal  code  additionally

precludes  landlords  from  publishing  any  communication   with

respect  to  their rental property indicative of  marital  status


          In 1994 we rejected a constitutional challenge to these

provisions  brought by Anchorage landlord Tom Swanner.6   Swanner

had  a  policy of refusing to rent or show property to  unmarried

couples  based  on  his  Christian  religious  beliefs.7    After

receiving complaints against Swanner, the Anchorage Equal  Rights

Commission  filed  proceedings against him and  ultimately  found

that  he  had  engaged in discriminatory conduct.8  The  superior

court  upheld  this ruling, and Swanner appealed, asserting  that

          the state and municipal anti-discrimination laws violated his

rights  to  the  free exercise of his religion under  the  United

States and Alaska Constitutions.9

          Our  opinion  in Swanner determined that there  was  no

merit  to  these claims under either constitution.  Applying  the

test  set  out  by the United States Supreme Court in  Employment

Division,  Department of Human Resources v. Smith10  which  holds

that  the  United States Constitution usually does  not  prohibit

religious  restraints arising incidentally  from  a  neutral  and

generally  applicable  law  we concluded  that  Swanners  federal

constitutional rights had not been violated, since the challenged

anti-discrimination  laws  are neutral and  generally  applicable

provisions.11   Though  we acknowledged  that  Smith  creates  an

exception that would require proof of a compelling state interest

in  a  hybrid  situation  where the facts  indicated  a  possible

violation   of   the  Free  Exercise  Clause   and   some   other

constitutionally protected right, we found that Swanners case did

not  present  this  kind of hybrid situation, pointing  out  that

Swanner  did not contend that any other constitutional right  had

been  violated.12  Our opinion in Swanner nevertheless applied  a

more  stringent  test in addressing Swanners free exercise  claim

under   the  Alaska  Constitution.   Using  the  more  protective

requirements  of  Sherbert v. Verner,  which  we  had  previously

adopted as a state constitutional measure in Frank v. State,13 we

concluded  that the challenged laws passed constitutional  muster

because  they furthered a compelling state interest by preventing

marital status discrimination and were narrowly tailored.14   And

relying  on  the  same conclusion, we separately  held  that  the

disputed  laws  would withstand federal review under  the  strict

scrutiny  test then recently enacted by Congress in the Religious

Freedom Restoration Act of 1993.15

          Soon  after  Swanner was published,  Kevin  Thomas  and

Joyce  Baker  filed suit in the United States District  Court  in

Anchorage,  asserting that the Alaska and Anchorage  anti-marital

          discrimination laws violated their free exercise rights under the

United  States  Constitution, and seeking a declaratory  judgment

enjoining  the  state and the municipality from  enforcing  those

provisions.   Thomas and Baker are Anchorage  landlords  who  are

similarly situated to Swanner; their positions and claims in  the

federal court have been described as follows:

               Kevin   Thomas  and  Joyce  Baker   (the
          landlords)   individually   own   residential
          rental   properties  in  Anchorage,   Alaska.
          Both  are devout Christians who are committed
          to  carrying out their religious faith in all
          aspects  of  their  lives,  including   their
          commercial  activities as landlords.  Central
          to  their faith is a belief that cohabitation
          between  an  unmarried man and  an  unmarried
          woman  is a sin.   The landlords also believe
          that  facilitating  the  cohabitation  of  an
          unmarried  couple is tantamount to committing
          a  sin  themselves.   Based on this religious
          belief,  the landlords claim that  they  have
          refused to rent to unmarried couples  in  the
          past  and that they intend to continue to  do
          so in the future.
               . . . .
               The   landlords  brought   this   action
          against  Paula Haley, the Executive  Director
          of  the  Alaska  State Commission  for  Human
          Rights,    the    Anchorage   Equal    Rights
          Commission,    and   the   Municipality    of
          Anchorage, seeking declaratory and injunctive
          relief  under 42 U.S.C.  1983 and  28  U.S.C.
          2201.    They  claimed  that  the  threat  of
          enforcement of the marital status  provisions
          of  the  anti-discrimination  laws  infringed
          their First Amendment rights to free exercise
          of  religion and free speech.   Specifically,
          they  argued  that  their  religious  beliefs
          precluded  them  from  renting  to  unmarried
          couples  and  that the laws restricted  their
          ability  to communicate those beliefs through
          advertising or by inquiring about the marital
          status of prospective tenants.[16]
          The federal district court granted summary judgment  to

the   landlords,   declaring  that  the   state   and   municipal

prohibitions  of  marital  discrimination  violated  their   free

exercise  rights.  A divided panel of the Ninth Circuit  affirmed

          this ruling.17  But the court subsequently granted rehearing en

banc and withdrew the panels opinion.18  After rehearing the case,

the  en banc court vacated the judgment and ordered the landlords

action dismissed; describing the action as a case in search of  a

controversy,19  the court ruled that the landlords constitutional

claims  should not have been decided on their merits,  since  the

action was not ripe for judicial review.20

          Joined   by   another   similarly  situated   Anchorage

landlord, Jeffrey Bubna, Thomas and Baker then refiled their case

in  the  Alaska  Superior  Court.  Their  superior  court  action

asserted  essentially the same hybrid violation of free  exercise

rights  that Thomas and Baker had raised in the preceding federal

action.   The  landlords also alleged independent  violations  of

their  constitutional rights to free speech and equal protection.

In  addition, the landlords asked that our decision in Swanner be


          Ruling  on cross-motions for summary judgment, Superior

Court  Judge Sharon Gleason rejected these claims.  Specifically,

the court declined to overrule Swanner, finding that the decision

remained  controlling  law  in Alaska  and  was  binding  on  the

superior   court.    The  superior  court  also   found   Swanner

controlling  on  the  landlords free exercise claims,  concluding

that  our opinion in Swanner expressly and unequivocally rejected

their  arguments.  Last, the court rejected the landlords  claims

that  the anti-discrimination laws violated their rights to  free

speech  and  equal protection. Addressing the free speech  claim,

the court ruled that, when interpreted narrowly in light of their

statutory  purpose  the challenged provisions  extended  only  to

narrow  limitations on commercial speech occurring in the context

of specific activities undertaken as preliminaries to real estate

transactions.  The court thus declined to find them impermissibly

vague  or  overbroad.   And as for the landlords equal protection

claim,  the superior court simply found no merit to their  theory

that the laws have a disparate impact by creating exceptions that

          permit discrimination for secular reasons while forbidding

landlords  from  excluding  unmarried cohabitants  for  religious


          The landlords appeal, renewing their arguments on their

free  speech  and free exercise claims and urging us to  overrule



     A.   Ripeness

          We  must  initially consider the issue of ripeness  for

judicial review.  Relying primarily on the Ninth Circuits en banc

decision and on our own ruling in Brause v. State, Department  of

Health & Social Services,21 the Alaska Commission for Human Rights

insists  that the superior court should have declined to rule  on

the  merits  of the Landlords case and should have  dismissed  it

outright.  But the commissions arguments are unconvincing.

          The  federal  courts  ruling  on  ripeness  has  little

bearing  on our own determination of the issue.  Ripeness  is  an

aspect  of  standing,22  and we have  often  noted  that  Alaskas

standing  requirements  are  more  lenient  than  their   federal

counterpart, since they favor ready access to a judicial forum.23

We  have  consistently  found this difference  to  be  important,

emphasizing the need to follow our own unique . . . jurisprudence

if  Alaska standing doctrine is to retain its quality of relative


          As  for the commissions reliance on Brause, the case is

inapposite.   There, a homosexual couple challenged a  state  law

claiming  that it denied them the same benefits it  gave  married

couples.25   Even  though the statute nominally  applied  to  the

appellants,  we  found their declaratory judgment  action  unripe

because  their  constitutional challenge appeared  to  be  purely

hypothetical: they failed to identify any actual harm they  might

suffer,  even  assuming that the state continued to  enforce  the

disputed provision.26  Here, in sharp contrast to the situation we

addressed in Brause, it seems obvious that the landlords stand to

          suffer actual prejudice if the state or municipality enforces the

challenged  laws against them.  Indeed, the commission  does  not

seriously  dispute this proposition; it argues instead  that  the

landlords  cannot  sue  unless and  until  these  provisions  are

actually  enforced against them.  But the record shows  a  recent

history  of  active  enforcement; and  the  commission  does  not

disavow the possibility of future enforcement.  In effect,  then,

the  commission is asking us to hold that the landlords must rely

on its good graces and hope for the best until it files charges.

          We have never imposed such a stringent requirement as a
condition  of   ripeness  or  standing.   In  State  v.   Planned
Parenthood,  a  case decided after Brause, the state  advanced  a
similar  argument  in  an attempt to defeat  the  claims  of  two
physicians  who  sought  to challenge a  law  requiring  parental
consent to abortion.27  The state contended that both doctors lack
standing  because neither faces a specific threat of  prosecution
or  alleges past prosecutions.28  In rejecting this argument,  we
held  that the doctors need not allege such drastic harm to  meet
Alaskas lenient test of standing.29  We went on to hold that  the
risk  of  enforcement  alone sufficed  for  standing,  since  the
challenged law would require both doctors to change their current
practices  and would expose them to civil and criminal  liability
if they failed to comply.30
          We  see  no  sound  basis  for  distinguishing  Planned
Parenthood  from the present case.  If we denied  standing  here,
the  landlords would similarly be forced to change  their  rental
practices  or expose themselves to civil and criminal  liability.
These  circumstances are sufficient to meet Alaskas lenient  test
of  standing.  We conclude that the superior court did not  abuse
its  discretion in refusing to dismiss the claims as  unripe  for
judicial review.31
     B.   Stare Decisis

          The  commission advances a more convincing  alternative

argument  against  reaching the merits of the  landlords  claims:

even  if  we determine that the landlords have standing to  raise

          their constitutional claims, the commission argues, Swanner

should be applied to deny . . . their requested relief under  the

common law principle of stare decisis.

          The stare decisis doctrine rests on a solid bedrock  of

practicality:  no judicial system could do societys  work  if  it

eyed  each  issue  afresh in every case that raised  it.  32   In

recognizing the importance of this doctrine, we have consistently

held  that  a  party raising a claim controlled  by  an  existing

decision  bears  a  heavy threshold burden of showing  compelling

reasons  for reconsidering the prior ruling: We will  overrule  a

prior  decision  only when clearly convinced that  the  rule  was

originally  erroneous or is no longer sound  because  of  changed

conditions,  and  that more good than harm would  result  from  a

departure from precedent.33

          Here,  the landlords free exercise claims fall squarely

within  the  ambit  of  our opinion in  Swanner.34   Indeed,  the

landlords  specifically seek to overrule Swanner, insisting  that

Mr.  Swanner was a landlord virtually identical to Thomas,  Baker

and   Bubna.   But  while  they  strenuously  criticize  Swanners

reasoning  and  holding in many respects, the  landlords  do  not

convincingly show good cause to revisit this precedent.

          1.   First element of stare decisis: original error  or
               current unsoundness
          To  meet  the  first  essential element  of  the  stare

decisis  test,  the  landlords bear the  burden  of  convincingly

demonstrating  either  that Swanner was originally  erroneous  or

that intervening changes have made it unsound.35

               a.   The originally erroneous requirement

          A  decision is originally erroneous if it proves to  be

unworkable in practice.36  But the landlords here do not show that

Swanner has proved unworkable in practice.  They do suggest  that

Swanner left them with an unfair and unworkable moral dilemma  by

failing  to  meaningfully consider the right to free exercise  of

religion under Smiths hybrid rights theory, by mistakenly finding

that  the  challenged anti-discrimination laws  especially  their

          built-in exceptions  are facially neutral and generally

applicable,  and by leaving intact the laws vague  and  overbroad

provisions restraining free speech.  Yet to override the rule  of

stare  decisis, the landlords need to show not just that  Swanner

failed to meaningfully address these points, but that they  would

clearly have prevailed if the points had been fully considered.

          Here,  no  showing of clear and obvious error has  been

made.   Despite the landlords assertions to the contrary, Swanner

did  not ignore or overlook the hybrid rights exception to Smiths

general  rule.   Although Swanner found no need  to  discuss  the

theory,  our observation in Swanner that no hybrid violation  had

been  alleged demonstrates our recognition of the theory and  our

implicit view that it had no clear and obvious application to the

matter at issue.37  The landlords current arguments on this theory

fall  well short of convincing us that Swanner clearly would have

been  decided  differently had the theory been  raised.   To  the

contrary,   the   landlords  current  hybrid   rights   arguments

convincingly  illustrate that this constitutional theory  remains

controversial  and  largely undefined:  considerable  uncertainty

continues  to surround the doctrines meaning, scope, and  correct

application  and, indeed, its very existence.38  Hence,  although

the  landlords hybrid rights arguments certainly raise  difficult

and debatable constitutional questions, they fail to convincingly

show that our holding in Swanner was clearly in error.39

          The  landlords  fare no better in criticizing  Swanners

view that the challenged laws were facially neutral and generally

applicable40  a view that potentially affects the analysis of free

exercise rights under both the Smith test and the test set out in

Sherbert.41   As  already mentioned above,  the  superior  courts

decision  in  the  present  case expressly  found  the  landlords

contentions  on  this point to be lacking  in  merit.   But  even

assuming  that the landlords raised a fairly debatable  issue  on

the  neutrality and general applicability of the challenged laws,

their  arguments  would still fail to make a  clearly  convincing

          showing that Swanner wrongly decided the issue.

          The  landlords  arguments rely  largely  on  the  state

statutes  exception  for singles only and  married  couples  only

classes  of  housing.  The superior court found no evidence  that

this  exception had any discriminatory intent or impact.  Despite

their strenuous protests to the contrary, the landlords offer  no

persuasive  reason  to  challenge the superior  courts  findings.

Notably, both the legislative history of this exception  and  the

state commissions interpretation of it in past litigation suggest

that  the  legislature  intended that the exception  would  allow

landlords considerable latitude to designate particular units  or

blocks  of  apartments as singles only or married  couples  only,

provided  that  the  landlords established these  classifications

before  offering the properties for rental  thus eliminating  the

risk  of discriminating against prospective tenants on a case-by-

case  basis.42  The landlords do not assert that their  religious

beliefs  compel  them to rent to classes of  tenants  other  than

singles  only  or  married couples; nor  do  they  satisfactorily

explain  why  they could not take advantage of this exception  to

mitigate  any financial hardship they might otherwise  experience

by complying with the anti-discrimination provision.

          The  landlords further suggest that Swanner  should  be

deemed  to have been wrongly decided because the statutory scheme

it approved inevitably exposes them, and other similarly situated

religious   landlords,  to  intolerable   restraints   on   their

constitutional  rights to free speech.  But  the  superior  court

persuasively answered this contention by strictly construing  the

challenged   laws  to  extend  only  to  narrow  limitations   on

commercial  speech  of  the kind that is integral  to  activities

undertaken  as  preliminaries to real estate  transactions.   The

superior courts narrow construction of the statutes comports with

their underlying purpose and defeats the landlords vagueness  and

overbreadth claims.43

               b.   The intervening changes requirement

          As  an  alternative to demonstrating that  Swanner  was

wrong  when  it was originally decided, the landlords could  meet

their burden of establishing the first element needed to overcome

the  rule  of  stare  decisis by making a  clear  and  convincing

showing  that the decision is no longer sound because  conditions

have  changed.44   But the landlords claims  reveal  few  salient

factual    changes:   the   landlords   situation    is    nearly

indistinguishable from the one we considered in Swanner.

          The  landlords  nonetheless allege that  their  current

situation differs markedly from Swanner because the law  has  now

changed.  As we have previously recognized,

          a  prior decision may be abandoned because of
          changed  conditions if related principles  of
          law have so far developed as to have left the
          old  rule no more than a remnant of abandoned
          doctrine, [or] facts have so changed or  come
          to  be seen so differently, as to have robbed
          the      old      rule     of     significant
          application. . . .[45]
The landlords claim here that Swanner has recently been overruled

by the Supreme Courts decision in Boy Scouts of America v. Dale.46

Though  they  acknowledge  that  Dale  dealt  with  associational

freedom,  not free exercise of religion, and so does not directly

overrule  Swanner,  the landlords insist that  Swanner  has  been

overruled  sub  silentio by Dale.  In the  landlords  view,  Dale

stands for the general proposition that anti-discrimination  laws

like those challenged here must fail when placed in opposition to

a serious fundamental First Amendment right.

          But  it seems reasonable to wonder whether sub silentio

rulings  in other words, rulings that inform existing law by mere

force  of  analogy  can ever trump stare decisis by  establishing

changed conditions that have so far developed as to have left the

old rule no more than a remnant of abandoned doctrine.47  And more

to  the  point,  the  landlords reading of  Dale  overstates  the

opinions holding.  For the Supreme Court in Dale did not  broadly

rule,  as  the  landlords  suggest, that First  Amendment  rights

should  generally  be deemed more compelling  than  laws  barring

          marital discrimination; instead, the Court expressly found New

Jerseys claim of compelling interest attenuated in the particular

situation at issue there because New Jersey law extended its anti-

discrimination  requirements to private groups  whose  activities

fell  well  beyond  those usually involved  in  providing  public

accommodations.48 This same observation obviously would not  hold

true  in  the  circumstances at issue here, since the  challenged

Alaska and Anchorage laws deal exclusively with the core activity

of  providing public accommodations.  It follows that  Dale  does

not   clearly  and  convincingly  undermine  Swanners  continuing


          2.   Second  element of stare decisis: more  good  than

               harm requirement

          The   landlords  failure  to  convincingly  demonstrate

Swanners  original  or  current  unsoundness  makes  the   second

requirement for overriding the stare decisis rule academic.   But

it seems worthwhile to emphasize that even if the landlords could

establish  good  reasons  to suppose  that  Swanner  was  wrongly

decided  or  is  currently unsound, we  would  not  override  the

doctrine  of  stare decisis unless they also clearly  established

that  more  good  than  harm would result  from  overruling  that

decision.49   In our view, the potential benefits  of  overruling

Swanner  have  not  been  clearly established  here.   The  Ninth

Circuits en banc decision in this case sheds useful light on this

point.   That decision aptly summarized the serious disadvantages

of  attempting  to  resolve the difficult  constitutional  issues

raised   by   the   landlords  without  having  a  particularized

controversy and a solid framework of facts:

               The manner in which the intersection  of
          marital  status discrimination and the  First
          Amendment  is presented here, devoid  of  any
          specific  factual context, renders this  case
          unfit  for judicial resolution.   The  record
          before  us  is  remarkably thin and  sketchy,
          consisting   only   of   a   few   conclusory
          affidavits.  A concrete factual situation  is
          necessary to delineate the boundaries of what
          conduct   the  government  may  or  may   not
               regulate.  And yet, the landlords ask us to
          declare Alaska laws unconstitutional, in  the
          absence of any identifiable tenants and  with
          no    concrete    factual    scenario    that
          demonstrates  how  the  laws,   as   applied,
          infringe their constitutional rights.    This
          case  is a classic one for invoking the maxim
          that   we   do   not  decide   constitutional
          questions in a vacuum.
               . . . .
          Moreover,  by  being  forced  to  defend  the
          housing  laws in a vacuum and in the  absence
          of  any particular victims of discrimination,
          the  State and the City would suffer hardship
          were we to adjudicate this case now.[50]
          Of course we recognize that the federal court discussed

these  prudential concerns in connection with the threshold issue

of  ripeness  for  judicial review  a separate procedural  matter

that  we  have resolved in the landlords favor.  Yet the  federal

courts  concerns  seem  equally relevant  to  our  stare  decisis

analysis,  since they weigh heavily against any hasty  assumption

that  we would do more good than harm by attempting to reconsider

Swanner in this case as it currently stands.  To the extent  that

they  are  relevant  to  our stare decisis  analysis,  then,  the

federal  courts well-founded concerns deserve to be heeded,  even

though  Alaskas lenient rule of standing has led us  to  disagree

with the federal courts decision on ripeness.  After all, we  can

see no good reason to hold that the landlords undeniable right to

pursue  their claims in Alaskas courts should lighten  the  usual

burden  that  any  litigant must bear to overcome  the  force  of

precedent under stare decisis.


          Although  the  landlords have standing to pursue  their

claims  in  Alaskas courts, they have failed to  show  conditions

warranting departure from the doctrine of stare decisis.  Because

we  conclude that Swanner completely controls the landlords  free

exercise  claims  and  that  their  free  speech  arguments  lack

independent merit, we AFFIRM the superior courts summary judgment

order dismissing the landlords complaint.

     1    AS 18.80.240; AMC 5.20.020.

     2    874 P.2d 274, 276 (Alaska 1994).

     3    AS 18.80.240(1), (2), (3) and (5) provide:

               It  is  unlawful for the owner,  lessee,
          manager, or other person having the right  to
          sell, lease, or rent real property
               (1)   to refuse to sell, lease, or  rent
          the real property to a person because of sex,
          marital  status,  changes in marital  status,
          pregnancy, race, religion, physical or mental
          disability,   color,  or   national   origin;
          however,  nothing in this paragraph prohibits
          the sale, lease, or rental of classes of real
          property   commonly  known  as  housing   for
          singles or married couples only;
               (2)   to  discriminate against a  person
          because  of  sex, marital status, changes  in
          marital  status,  pregnancy, race,  religion,
          physical  or  mental  disability,  color,  or
          national  origin  in  a term,  condition,  or
          privilege  relating to the use, sale,  lease,
          or  rental of real property; however, nothing
          in  this paragraph prohibits the sale, lease,
          or   rental  of  classes  of  real   property
          commonly  known  as housing  for  singles  or
          married couples only;
               (3)   to  make a written or oral inquiry
          or record of the sex, marital status, changes
          in  marital status, race, religion,  physical
          or  mental  disability,  color,  or  national
          origin 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  race,
          religion,   physical  or  mental  disability,
          color,  national  origin, age,  sex,  marital
          status, change in marital status or pregnancy
          of  that  person or of any person  associated
          with that person[.]
          In  addition, AS 18.80.270 specifies that a person  who
wilfully   violates  these  provisions  commits   a   misdemeanor
punishable by a $500 fine, thirty days in jail, or both.

     4     See AMC  5.20.020(A), (B), (C), (E).  Unlike the state
statute,  however, this provision of the Anchorage  code  exempts
rental space in a landlords individual home when the landlord and
renter  would  share  common  areas.  Specifically,  the  opening
clause of 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 for the
          owner, lessor, manager, agent or other person
          having  the  right to sell,  lease,  rent  or
          advertise real property to . . . .
     5    Specifically, AMC  5.20.020 (G) makes it unlawful for a
lessor to:

               Circulate, issue or display, make, print
          or publish, or cause to be made or displayed,
          printed   or  published,  any  communication,
          sign, notice, statement or advertisement with
          respect to the use, sale, lease or rental  or
          real  property that indicates any preference,
          limitation,  specification or  discrimination
          based  on  race, religion, age,  sex,  color,
          national  origin, marital status or  physical
          or mental disability.
     6    Swanner, 874 P.2d at 276.

     7    Id. at 277.

     8    Id.

     9    Id.

     10    494 U.S. 872 (1990).

     11    Swanner, 874 P.2d at 279-80.

     12    Id.

     13    604 P.2d 1068, 1070 (Alaska 1979) (applying compelling
state  interest test adopted in Sherbert v. Verner, 374 U.S.  398

     14    Swanner, 874 P.2d at 280-84.

     15    Id. at 280 n.9.

     16    Thomas v. Anchorage Equal Rights Commn, 220 F.3d 1134,
1137-38   (9th Cir. 2000) (en banc), cert. denied, 531 U.S.  1143

     17     Thomas v. Anchorage Equal Rights Commn, 165 F.3d  692
(9th  Cir.  1999), withdrawn and rehg en banc granted,  192  F.3d
1208 (9th Cir. 1999).

     18     Thomas v. Anchorage Equal Rights Commn, 192 F.3d 1208
(9th Cir. 1999).

     19    Thomas, 220 F.3d at 1137.

     20    Thomas, 220 F.3d at 1142.

     21    21 P.3d 357 (Alaska 2001).

     22     See,  e.g., Brause, 21 P.3d at 359 n.6, (quoting  13A
Charles  Alan  Wright,  et al., Federal  Practice  and  Procedure
3532.1, at 101 (Supp. 2000)).

     23    See, e.g., Trustees for Alaska v. State, 736 P.2d 324,
327   (Alaska   1987)  (We  have  departed  from  a   restrictive
interpretation of the standing requirement, adopting  instead  an
approach  favoring increased accessibility to judicial forums.  )
(internal citations omitted).

     24    Bowers Office Prods., Inc. v. Univ. of Alaska, 755 P.2d
1095, 1097 n.5 (Alaska 1988).

     25    Brause, 21 P.3d at 357-58.

     26    Id.

     27    35 P.3d 30, 34 (Alaska 2001).

     28    Id.

     29    Id.

     30    Id.

     31     Since Alaska law gives the trial court discretion  to
declare the rights and legal relations of an interested party  in
the  case  of  an  actual  controversy with  the  state,  see  AS
22.10.020(g),   we  review  the  superior  courts   decision   on
justiciability for abuse of discretion.  See Brause, 21  P.3d  at

     32     Pratt  & Whitney Canada, Inc. v. United Technologies,
852 P.2d 1173, 1175 (Alaska 1993) (quoting Planned Parenthood  v.
Casey, 505 U.S. 833, 854 (1992)).

     33    State, Commercial Fisheries Entry Commn v. Carlson, 65
P.3d 851, 859 (Alaska 2003) (internal quotations omitted).

     34     We reject the landlords contention that Swanner  does
not  squarely control their free exercise claim because it failed
to address or incorrectly decided various free exercise arguments
that the landlords now emphasize.

     35    Carlson, 65 P.3d at 859.

     36     Pratt & Whitney, 852 P.2d at 1176 (citing Casey,  505
U.S. at 854).

     37    874 P.2d at 280.

     38    See, e.g., Civil Liberties for Urban Believers v. City
of  Chicago,  342  F.3d 752 (7th Cir. 2003)  (finding  that  both
claims  must  individually have merit for heightened scrutiny  to
occur);  Leebaert  v. Harrington, 332 F.3d  134  (2d  Cir.  2003)
(finding hybrid right may not exist, and if it does, it does  not
warrant strict scrutiny); Miller v. Reed, 176 F.3d 1202 (9th Cir.
1999)  (finding  hybrid  right  can  exist  but  claims  must  be
violation  of  fundamental rights); Reich v.  Shiloh  True  Light
Church of Christ, No. 95-2765, 1996 WL 228802, **3 (4th Cir.  May
7,  1996)  (per  curiam) (finding hybrid right  exists  but  free
exercise  claim fails compelling interest test); EEOC v. Catholic
Univ. of America, 83 F.3d 455 (D.C. Cir. 1996) (finding existence
of hybrid right claim, but deciding case on other grounds); Thiry
v.  Carlson, 78 F.3d 1491 (10th Cir. 1996) (finding hybrid  right
claim  to  exist but that claim at issue was not such  a  claim);
Brown v. Hot, Sexy and Safer Prods., Inc., 68 F.3d 525 (1st  Cir.
1995)  (finding a hybrid claim warrants strict scrutiny  but  did
not apply);  Kissinger v. Board of Trustees, 5 F.3d 177 (6th Cir.
1993)   (refusing   to   decide  hybrid  right   claims   without
clarification  from Supreme Court); Cornerstone Bible  Church  v.
City  of  Hastings, 948 F.2d 464 (8th Cir. 1991) (finding  hybrid
right  can exist); Salvation Army v. N.J. Dept of Cmty.  Affairs,
919  F.2d  183 (3d Cir. 1990) (finding freedom of association  is
derivative  of  free exercise right and rejecting hybrid  claim);
Chalifoux v. New Caney Indep. Sch. Dist., 976 F. Supp. 659  (S.D.
Tex. 1997) (finding hybrid right exists); City Chapel Evangelical
Free  Inc.  v.  City of South Bend, 744 N.E.2d  443  (Ind.  2001)
(acknowledging  hybrid  right claim  but  remanding  for  further
findings); Hill-Murray Fed. of Teachers v. Hill-Murray High Sch.,
487  N.W.2d  857 (Minn. 1992) (finding hybrid right claim  exists
and  compelling interest analysis would apply); Health Serv. Div.
v. Temple Baptist Church, 814 P.2d 130 (N.M. 1991) (acknowledging
hybrid  rights language but did not apply to facts of the  case);
N.Y.  State Emp. Rel. Bd. v. Christ the King Regl High Sch.,  682
N.E.2d 960 (N.Y. 1997) (acknowledging hybrid rights language, but
finding  it  inapplicable);  First  United  Methodist  Church  of
Seattle v. Hearing Examiner for Seattle Landmarks Pres. Bd.,  916
P.2d  374  (Wash.  1996) (finding hybrid  right  claim  for  free
exercise and free speech).

     39     Cf. Thomas v. Anchorage Equal Rights Commn, 220  F.3d
1134,   1150-51  (9th  Cir.  2000)  (en  banc)  (Kleinfeld,   J.,
dissenting) (describing the landlords federal hybrid rights claim
as  raising  a serious question falling somewhere in between  two
hypothetical cases in which the results of the Smith  test  would
seem clear).

     40     Swanner determined that these laws applied equally to
all  people involved in renting and selling property, and did not
expressly or implicitly disfavor religious groups.  Swanner,  874
P.2d at 280.

     41     See generally City of Boerne v. P.F. Flores, 521 U.S.
507, 514 (1997).

     42    See Brief of Amicus Curiae Alaska State Commission For
Human Rights,  Foreman v. Anchorage Equal Rights Commn, S-2677/S-
2716  at  7-19  (July 28, 1988);  cf. Foreman v. Anchorage  Equal
Rights  Commn, 779 P.2d 1199, 1203 (Alaska 1989) (noting that  AS
18.80.240(2)  permits  an owner to rent housing  for  singles  or
married couples only but does not apply to landlord who rented to
all classes of persons and did not purport to rent only to single
people, or only to married people).

     43    Indeed, in reply to the state commissions argument that
restrictions like these are permissible under the Supreme  Courts
decision  in  Pittsburgh Press Co. v. Pittsburgh Commn  on  Human
Relations, 413 U.S. 376, 389 (1973) (any First Amendment interest
otherwise  arguably served by advertising commercial proposal  is
altogether  absent when restriction on advertising is  incidental
to valid limitation of commercial activity itself), the landlords
concede  that their free speech claim completely depends  on  the
validity  of their free exercise claim: The Landlords agree  that
if  the  government  may constitutionally  prohibit  and  legally
sanction  their  religiously based refusal to rent  to  unmarried
cohabitators,   then  their  desired  speech  is   illegal,   and
Pittsburgh Press controls.

     44    Pratt & Whitney, 852 P.2d at 1176.

     45    Id. at 1176 (quoting Casey, 505 U.S. at 833).

     46     530  U.S. 640 (2000).  The landlords also assert  the
Courts  decision in Dale was foreshadowed by its ruling in Hurley
v.  Irish-American Gay, Lesbian and Bisexual Group of Boston, 515
U.S. 557 (1995).

     47     Pratt & Whitney, 852 P.2d at 1176 (quoting Casey, 505
U.S. at 833).

     48    530 U.S. at 646-50.

     49    Carlson, 65 P.3d at 859 (internal quotations omitted).

     50    Thomas, 220 F.3d at 1141-42 (citations omitted).