Thomas v. Anchorage Equal Rights Commission
220 F.3d 1134 (2000)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
A pre-enforcement challenge to a statute is not ripe for judicial review, and thus is not justiciable, if the plaintiff's alleged injury is speculative and contingent on future events that may never occur. To be ripe, there must be a genuine and imminent threat of prosecution, not merely a hypothetical intent to violate a law at some unspecified future time.
Facts:
- Kevin Thomas and Joyce Baker are landlords who own residential rental properties in Anchorage, Alaska.
- As devout Christians, they believe that cohabitation between an unmarried man and woman is a sin.
- They also believe that renting property to an unmarried couple would be facilitating a sin, making them complicit.
- Based on these religious beliefs, the landlords have refused to rent to unmarried couples in the past and intend to continue this practice.
- Both the State of Alaska and the Municipality of Anchorage have laws that prohibit discrimination in rental housing based on marital status.
- These laws also prohibit landlords from inquiring about the marital status of prospective tenants or advertising a preference based on it.
- No prospective tenant has ever filed a discrimination complaint against Thomas or Baker.
- Neither state nor municipal enforcement agencies had ever investigated, prosecuted, or threatened any action against the landlords prior to this lawsuit.
Procedural Posture:
- Kevin Thomas and Joyce Baker (the landlords) filed a lawsuit in the U.S. District Court against state and municipal authorities.
- The landlords sought declaratory and injunctive relief, claiming that housing anti-discrimination laws violated their First Amendment rights.
- On cross-motions for summary judgment, the district court found the claims to be justiciable.
- The district court subsequently ruled that the laws were unconstitutional as applied to the landlords and permanently enjoined their enforcement against them.
- The state and municipal authorities appealed the district court's decision to the U.S. Court of Appeals for the Ninth Circuit.
- A divided three-judge panel of the Ninth Circuit affirmed the district court's judgment.
- The Ninth Circuit then voted to grant a rehearing en banc, withdrawing the three-judge panel's opinion.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Is a pre-enforcement First Amendment challenge to state and local housing anti-discrimination laws justiciable when the plaintiffs have not been charged, threatened with prosecution, or been the subject of any complaint, and their intent to violate the law is based on future, hypothetical events?
Opinions:
Majority - Judge McKeown
No. The pre-enforcement challenge is not justiciable because it is not ripe for judicial review. The court found that the landlords' alleged injury was too speculative and hypothetical to constitute a constitutional 'case or controversy' under Article III. The court applied a three-factor test and concluded there was no genuine threat of imminent prosecution because: (1) the landlords lacked a 'concrete plan' to violate the law, as their intent was contingent on a future, unspecified couple seeking to rent from them; (2) the authorities had never communicated any specific warning or threat of enforcement; and (3) the history of enforcement showed that actions were only initiated after an actual tenant filed a complaint, which had not happened here. Prudentially, the court also found the issue unfit for judicial decision due to the lack of a developed factual record, stating that it would be improper to decide 'constitutional questions in a vacuum.'
Concurring - Judge O'Scannlain
No. While agreeing with the majority's conclusion that the case is not justiciable, this opinion argues that the court is significantly, though silently, tightening the circuit's jurisprudence on ripeness and standing. The concurrence asserts that under prior Ninth Circuit precedents, such as Adult Video Ass'n v. Barr, this case would have been considered ripe. It frames the majority's decision as a laudable retreat to judicial restraint that effectively overrules prior, more permissive case law and makes it 'virtually unable' for litigants to bring pre-enforcement challenges unless a violation is entirely within their control. The opinion suggests the court is using the justiciability doctrine to avoid deciding a difficult and complex First Amendment issue.
Dissenting - Judge Kleinfeld
Yes. The landlords' challenge is justiciable because their case is ripe and they have standing. The dissent argues that the landlords face a 'realistic danger' of enforcement, which is sufficient under Supreme Court precedent like Babbitt v. United Farm Workers. The landlords are not expressing a vague 'some day' intention; they are currently operating their business with a discriminatory policy that violates a law known to be actively enforced. The fact that they have not yet been caught does not negate the existence of a live controversy. The dissent contends that the government has not disavowed its intention to enforce the law and that the majority's refusal to hear the case is an abdication of the court's duty to resolve a serious constitutional claim.
Analysis:
This decision significantly raises the bar for bringing pre-enforcement challenges to statutes in the Ninth Circuit, particularly in First Amendment cases. It signals a move away from a more permissive approach to justiciability, requiring a more concrete and imminent threat of harm before a federal court will intervene. The ruling emphasizes the need for a well-developed factual record, making it harder for plaintiffs to challenge laws 'on their face' or 'as applied' before an actual enforcement action occurs. This may force potential litigants to either violate the law and risk prosecution or conform their conduct to a law they believe is unconstitutional.
Unlock the full brief for Thomas v. Anchorage Equal Rights Commission