Swanner v. Anchorage Equal Rights Commission

fraudulently, by coercion. mistakenly, into SWANNER, no concern to the ‘trust’ are of Whitehall

The terms of Tom d/b/a Appellant, Properties, inter- relinquished has Mr. Adkins he Although opposed the in it.”9 Adkins est recommendations, there was Master’s EQUAL RIGHTS COM- ANCHORAGE Ad- probate court. subsequent action Connerty, MISSION, Executive Paul L. order. appeal does not kins Bowles, Director, Joseph ex rel. William Moose, Appellees. Harper, F. and Dee regard fraud-related de to the With fenses, filed a “Petition to Rescind Adkins No. S-5362. Agreement’ ‘Relinquishment and Void Supreme Court Alaska. Fraud and Constructive the Causes of Fraud,” the motion. but later withdrew May pleadings, he party has withdrawn Where grounds. on such appeal cannot later based State, Ogden v.

See

1964) (holding appeal improper where trial

judge upon question). Adkins’ did rule relating claims to the Relin

fraud-related therefore, Agreement, are not be

quishment court for review.10

fore this

III. CONCLUSION to show that he

Because Adkins failed injury prejudice as a result of

suffered Estate,

Goerig’s representation of the

probate did not abuse its discretion court disqualify

dismissing petition Adkins’ Furthermore,

Goerig. because Adkins with- challenges Relinquishment

drew his appeal.

Agreement, he cannot renew them probate closing court’s order the Estate

is AFFIRMED. (1) against Goerig malpractice re- "a tool to fleece 10. Adkins' action

9. Adkins attacked the trust as gain the co- of his assets for the adjudicated. [Adkins] mains to be representatives legal personal and their council [sic],” applicable violative of the statutes trusts.

276 of the

ticipate in the court’s consideration rehearing. petition for An- of the Court at Entered direction Alaska, May chorage, RABINOWITZ, MOORE, C.J., and Before COMPTON, and JJ. MATTHEWS OPINION PER CURIAM.

Swanner, ap- Properties, Whitehall d/b/a superior court’s decision which pealed Anchorage Equal Rights Com- affirmed the (AERC) poli- order that Swanner’s mission’s couples con- cy against renting to unmarried based on unlawful discrimination stituted disputes the deci- marital status. Swanner enforcing applica- contends that sion and municipal and ordinance violates ble statute right of his his constitutional to free exercise and Alaska religion under the United States AERC Swanner claims the Constitutions. process by adopting the deprived him of due hearing recommended decision examiner’s DeLisio, Staley & Stephen S. DeLisio conducting proposed order without itself and Cook, appellant. Anchorage, for independent on its review of the case Faulkner, Banfield, Livsey, by notify E. him failing Constance that it merits Holmes, Anchorage, appellees. Doogan for & do so. would ' discriminated We hold that Swanner C.J., RABINOWITZ, MOORE, Before potential tenants based on their COMPTON, JJ. MATTHEWS further hold that enforc- marital status. We petition of the for rehear- On consideration deprive ing the fair laws does not 25, 1994, February ing, on and the filed him of to free exercise of his reli- 14, 1994, response, filed on March gion. proceedings of the AERC did not process IT ORDERED: deprive IS of his to due superior law. affirm the AERC and We petition rehearing for 1. The GRANT- court decisions. ED. majority opinion, Opinion No. 2. The I. AND PROCEEDINGS BELOW FACTS 4049, February published on WITHDRAWN. Bowles, Joseph Harper, F. William separate complaints filed Dee Moose three on Opinion 3. No. 4081 is issued this date marital status discrimination the rental place. in its property Anchorage. complain- real major opinion 4. The modifications Swanner, doing alleged that Tom busi- ants follow: Properties, munic- ness as violated Whitehall incorporated Editor’s Note: Modifications laws, ipal An- and state anti-discrimination purposes publication. (AMC) Municipal chorage Code 5.20.020 and (e) to rent or majority opinion on re- 18.80.240. Swanner refused The modified AS inspection properties af- opin- allow of residential hearing will be issued as a Per Curiam learning complainant that each intended par- Burke did not ter ion since former Justice becoming opposite January sex to order final on to live with a member of 1991. Jacobus, January he or she was not married. whom On Cheri C. Chairperson, AERC issued a Notice of Final specifically recall While Swanner did not proposed Order which affirmed that the or- Bowles, Harper, having conversations with January 22, der became final on Moose, readily having policy admitted he refusing couple to rent to unmarried who together property. on the

intend live Proceedings B. Superior Before property refusal to rent or show to unmarried is based on his Chris- appealed superior court on tian beliefs. Under Swanner’s reli- Judge March Karen L. Hunt heard beliefs, gious living ar- even a non-sexual argument May oral 1992 and issued a rangement opposite roommates of the sex August written decision and order on is immoral and sinful because such an ar- decision, 1992. She affirmed the AERC’s suggests appearance rangement the of immo- (a) holding that Swanner’s conduct constitut- rality. undisputed reject- It Swanner upon ed unlawful complainant ed each as a tenant because of discrimination based mari- (b) status; policy and for no other tal reason. enforcement of the state and municipal anti-discrimination laws does not A.Proceedings Anchorage rights, pur- Before violate Equal Rights Commission suant to the U.S. Court’s decision Division, Employment Department Hu- The AERC consolidated the three cases of Smith, 872, man Resources v. 110 hearing appointed and Robert W. Landau 1595, 108 L.Ed.2d 876 our hearing April on Lan- and examiner State, in Frank v. hearing dau conducted a on October 9 and decisions 604 P.2d 1068 (Alaska 1979) twenty-five page Chapel, issued Rec- and Seward Inc. v. Seward, proposed 1982); ommended Decision and order in City 655 P.2d 1293 7,1991. complainants January (c) favor of the on the automatic finalization of the He served the recommended decision AERC’s decision did not violate Swanner’s Swanner’s counsel and the AERC on Janu- process rights. due ary Pursuant to the AERC’s administrative Proceedings C. This Court Before time, procedure rules of in effect at the each appealed to this court on Swanner party days receipt had ten after of the rec- September 1992. He contends that the objec- ommended decision to submit written superior finding court erred that he dis 5.10.015(A). tions. AMC When the AERC against complainants criminated on the objections, regulations provide receives basis of marital status. He claims that he for its review of the record and modification does not discriminate based on marital sta appro- of the recommended decision where 5.10.015(B). tus, does, he is from priate. parties If but even excused AMC fail he. object, proposed automatically compliance the anti-discrimination decision with laws 5.10.015(A). becomes final. AMC Neither because of his fundamental to the' free religion, guaranteed by Swanner nor the AERC submitted written exercise of his objections. January On He the AERC Alaska United States Constitutions. that, stating pursuant issued memorandum also claims that the automatic finalization 5.10.015(A), parties’ process failure to his due AMC the AERC’s decision violates object hearing examiner’s recom- under the Alaska and United States proposed mended decision resulted in his Constitutions.1 (Alaska 1993); inteipretation Transp. 1. Each issue involves the and con- Alaska Inc., regulations. questions Airpac, struction of laws and On Comm’n v. (Alaska 1984). Thus, arising appeal superior of law as the court found which do not involve judg- particularized agency expertise, ap- parties agree, this court and both the substitution of plies independent judgment. appropriate standard of Kodiak Island ment standard is the Alaska, Labor, Borough Dep't v. State review on the issues Swanner has raised. 1989), language plain of AS we looked II. DISCUSSION and reviewed and AMC 5.20.0203 18.80.240 AMC 5.20.020 and Violated A. Swanner the anti-discrimination the intent behind Discriminating AS 18.80.2^0 Foreman, a landlord who refused laws. Based on Marital Status argued couple to rent to an unmarried he not dis argues that does protect not the interests the laws did individuals based on their criminate couples. at 1201. held unmarried Id. We people he will rent to marital status because renting policy against the landlord’s divorced, married, widowed, single, who are unlawfully discriminated unmarried separated. he will not rent of marital status. Id. at 1203. on the basis engage in con expects will those whom he the landlord would reasoned that because We beliefs, name repugnant duct prospective tenants had have rented to the marriage. Swan- ly cohabitation outside married, they to be fornica and he refused rent ner considers such cohabitation been and immoral. tion learning couple property after married, unlawful “[t]his not constitutes was responds that the laws at issue The AERC status.” Id. based on marital discrimination “mari- recognize a distinction between do reasoning applies here. Because AERC The same tal status” and “cohabitation.” The plain language demon- properties claims the statutes’ would have rented the that “marital status” includes cohabi- strates married, couples had been he tating couples. property to rent after he refused not, they unlawfully were Swanner learned Anchorage Equal Rights

In Foreman v. Comm’n, on the basis of marital status.4 1201-03 discriminated person inspect property, real be- 18.80.240 states: 2. Alaska Statute the ... marital status ... of that cause of practices of real Unlawful property. in the sale or rental ; person ... ... It is unlawful sell, lease, (1) the real to refuse to or rent sex, person property because of marital to a agrees 4.Swanner that the laws at issue forbid status, status, changes in marital status. discrimination on the basis of marital However, he contends that he did not discrimi- (3) inquiry or to make a written or oral against anyone on the basis of his or her nate sex, status, changes in record of the marital Instead, that he dis- marital status. he asserts person seeking buy, marital status ... of a conduct, which is not criminates on the basis of property; lease or rent real by prohibited the statutes. represent person proper- to a that real definition of "cohabit” demonstrates that The rental, sale, inspection, ty is not available for inextricably com- marital status and conduct are available, or lease in fact it is so or to when together bined. "Cohabit” means "to live in a person inspect proper- real refuse to allow ty relationship legally sexual when not married.” status, change ... because of the marital (1980). Heritage Dictionary The American person.... ... of that marital status reasonably Swanner cannot claim that he does property cohabitating or show cou- not rent provides: 3. AMC 5.20.020 ples (living together on their conduct out- based Except the individual home wherein the marriage) and not their marital status side of living would share common renter or lessee (unmarried) is when their marital status what lessor, owner, manager, agent areas with the opinion. in his makes their conduct immoral person, ... or other it is unlawful undisputed The facts demonstrate that Swanner property to a A. To refuse to ... rent the real ...; prospective would have rented to the tenants if person because of ... marital status argument Swanner's that he were married. against prospective tenants discriminated inquiry C. To make a written or oral or rec- person their conduct and not their marital the ... marital status ... of a based on ord of property; seeking to ... rent real status is without merit. property represent person E. To to a that real inspection ... rental [or] is not available for available, fact it is or to refuse a ... when in use, applied peyote

B. AMC 5.20.020 AS nalized to Native Enforcement ceremonies). religious Does Not Swanner’s American Violate 18.80.2W Right to the Free Exer- Constitutional ap claims that we should Religion His United cise Under the ply “compelling set interest” test Constitution States Verner, forth in v. Sherbert U.S. contends that enforcement of 10 L.Ed.2d 965 S.Ct. to deter him and AS 18.80.240 AMC 5.20.020 mine the laws at whether issue violate his effect on has a coercive the free exercise religion to free exercise of religious beliefs. that com- his He believes United States Constitution.5 pliance these laws him to choose with forces Smith, United States religious his liveli- between beliefs and rejected expressly applying the test Sherbert requests that hood. He we accommodate his being challenged generally law where the is religious by creating exemption to beliefs or, words, applicable, in other the law where and ordinance. AERC re- the statute any particular religious not directed “it sponds that is not Swanner’s Smith, practice or observance.6 494 U.S. at per se which run afoul our anti- beliefs at 1603. “[A] 110 S.Ct. law laws, discrimination but rather his actions general applicability neutral and need not setting.” and conduct a commercial justified by governmental be the law has even the incidental The First Amendment to the United burdening particular effect of “Congress provides that States Constitution practice.” Aye Church Babalu v. of Lukumi respecting shall no law establish make — Hialeah, -, -, City U.S. religion, prohibiting ment of free exer (1993) (cit 2217, 2226, 124 L.Ed.2d 472 Const, thereof; cise ...” I. U.S. amend. Smith, applies Exercise Free Clause (1990)).7 “Neutrality general applicabili incorporation Four states into the [Fjailure ty satisfy are interrelated.... teenth Amendment. See Cantwell Con likely is a requirement one indication that necticut, 296, 308, 900, 903, 810 U.S. 60 S.Ct. the has not A law other been satisfied. (1940). grants 84 L.Ed. 1213 It absolute satisfy failing requirements these must be protection to profession freedom of belief and justified by compelling governmental a inter faith, only protection to of but limited con narrowly est and be to advance must tailored by religious duct dictated belief. See Em at-, that interest.” Id. 113 S.Ct. at 2226. Div., ployment Dep’t Human Resources v. of Smith, step in determining 110 S.Ct. 108 The first whether scope on (narrowing L.Ed.2d 876 the of a law is neutral is whether it discriminates religious exemptions neutrality under the Free Exer its face. “A law lacks facial it by upholding religious practice crimi- a cise Clause a statute that refers to a without secu- test, him, balancing "compelling” permitting by a incidental- virtue Under law that est is — ly religious practice justified beliefs, a be burdens must of self,” "to become a law unto him- his compelling by Sherbert, governmental a See interest. both tradition constitutional —contradicts 374 U.S. at at 1793- 83 S.Ct. and common sense. 94, 1795. (citations 110 S.Ct. at 494 U.S. at 1603 omitted). footnote stated: The Court today approach, We conclude that the sounder City Aye Lukumi Babalu 7.In Church of of approach in vast ma- the accord with the Hialeah, -, U.S. jority precedents, of our the test is to hold Free L.Ed.2d 472 the Court used the govern- inapplicable challenges. to such city to strike Exercise Clause down ordinances ability applicable generally ment's prohibitions enforce sacrifice, effectively regulated that animal but conduct, socially of like harmful practices prohibited sacrifice of the Santería ability carry aspects out of other religion. held the failed policy, depend measuring ordinances “cannot the ef- on satisfy requirements because were Smith governmental fects of action on neutral, generally applicable, narrowly not nor objector’s spiritual development.” make an To tailored, govern- did not advance obligation obey a law individual’s tingent con- upon mental interests. the law’s coincidence with his beliefs, except where inter- the State’s pres- gion. Consequently, this not language case does meaning from discernable lar “hybrid” at-, ent sueh a situation. at 2227. S.Ct. or context.” Id. nor the statute contain the ordinance

Neither enforcing that AMC conclude We any religious group any language singling out against 5.20.020 and AS 18.80.240 Swanner practice. or right to of does not free exercise violate neutral, facially howev- when law is Even religion Constitut under the United States er, may if it is crafted to not neutral be ion.9 Id. particular religious conduct.

impede AMC and AS C. 5.20.020 hurdle well. The These laws clear that Enforcement of Does Not Violate Swanner’s and AS 18.80.240is purpose of 5.20.020 18.80.24.0 AMC Right the Free Exer- Constitutional in the hous- prohibit rental discrimination Religion, the Alaska cise His Under not does claim that ing market.8 Swanner Constitution purpose discriminate the laws fact, religion; people he based dispute ordi- does not not even cover this contends that the laws do generally applicable nance and statute are Therefore, the laws kind of discrimination. Smith, and neutral under but asserts neutrality. satisfy requirement “this of a less decision does mandate use courts in inter- restrictive standard state generally Additionally, ap- are these laws preting protection.” state They people apply to all involved plicable. renting selling property, speci- or and do not asserting is correct in particular fy imply applicability to a reli- greater may provide protection a state court Therefore, gious group. at least under the religion to the free exercise of under rule, general compelling state interest is provided than is constitution now necessary. See, e.g., States Constitution. United State, judicial provides ground for ex- Roberts v.

Smith one 1969) (“We expounding emptions compliance from with neutral laws are not bound Rights Alaska general applicability. may exempt A court Constitution’s Declaration by the of the United States Su an individual from a law where the facts decisions Court, future, hybrid preme past expound present a where an addition- which situation closely constitutionally protected implicat- provisions identical or similar al Constitution.”). Thus, Smith, 881-82, even at United States ed. Smith, though Like Free Exercise Clause of the Alas appellant 1601-02. Swan- ques- not the in ka is identical to the Free Exer ner does contend that laws Constitution Constitution, right cise of the United States infringe tion here Clause required apply the right adopt than his to free of we are not to and other exercise reli- race, color, religion, purpose the national ori- 8. Alaska Statute 18.80.200 states of because of sex, gin, age, physical disability, the anti-discrimination laws: or mental status, status, (a) changes preg- in It is and declared as a matter marital marital determined legislative finding of that discrimination nancy parenthood. or against an the state of inhabitant of because race, color, sex, religion, origin, age, national publication opinion, Shortly 9. before the of this status, disability, physical or mental marital Congress passed Religious the United States the status, changes par- pregnancy in marital or 1488 Freedom Restoration Act 107 Stat. public is a enthood matter of concern and that (1993). replaced the test with the That act Smith only this discrimination not threatens the Assuming compelling test. the Act that rights privileges and the the inhabitants of case, applies does is constitutional and to this it but the of the state also menaces institutions outcome, not the because we hold in the affect order, health, safety peace, and state threatens sup- next interests section that state general and the state and inhabit- welfare of port prohibitions on the marital status discrimi- ants. has for nation. The most effective tool the state (b) Therefore, policy of and it is the the state combatting prohibit discrimination is to discrim- purpose chapter the and of this eliminate ination; exactly Consequent- laws do that. these employment, prevent discrimination in in cred- ly, narrowly is the means are tailored and there places financing practices, and in alternative. less restrictive accommodation, in accommodations sale, lease, property and in the or rental of real

281 ” Chapel, Seward Inc. religious exemption test cases in- Smith otherwise served-’ Seward, City v. volving merely be- Alaska Constitution 655 P.2d n. 33 1301 (Alaska 1982) Frank, (quoting cause United States 604 P.2d applicabil- 1070). that test to adopted determine the

ity religious exemptions the United under Frank v. apply States Constitution. We will clearly satisfies the first State, (Alaska 1979), to deter- 1068 requirements excep and third to invoke an whether laws mine the anti-discrimination tion to the laws under the Free Exercise violate Swanner’s to free exercise disputes religion Clause. one is No the Alaska Constitution.10 (Christianity), involved here or that Swanner religious is in his sincere belief that cohabita State, In Frank v. the Sherbert adopted we cohabitators, by renting tion is a sin test to determine whether the Free Exercise facilitating However, supe he is the sin. requires of the Alaska Clause Constitution rior held that court he did not meet exemption facially to a law.11 604 neutral requirement second that his conduct reli was P.2d at 1070. We held that to invoke a giously “[n]othing because in rec based exemption, requirements religious three (1) (2) permits finding involved, refusing ord rent religion be met: must is cohabiting couples based, religious in unmarried is a question religiously conduct ritual, ceremony practice or deeply the claimant rooted sincere his/her religious Id. at 1071 Wiscon- religious (citing belief. belief.” Swanner’s claim that Yoder, 215-16, Frank superior misinterpreted sin v. v. State 92 court 1533-34, (1972)). limiting rights only free exercise ritual L.Ed.2d 15 Once met, requirements ceremony three or “[r]eli- these are has merit. we deter giously impelled practice actions can be forbidden mined that action at issue was a only they pose religion. ‘where substantial deeply some rooted P.2d at 1072- order,’ However, public safety, peace threat or 73. we did not intend free to limit competing governmental there in- where are exercise to actions in reli rooted rituals, ceremonies, highest gious ‘of the ... practices. [are] terests order and To jurisdictions language laws at issue did not or otherwise tion define grounds.” Cal.Rptr.2d 2 constitutional However, at explain the term “marital The court status.” Supreme depub- the California Legislature concluded that the Minnesota did not appeal's opinion, thereby lished the ren- court couples intend to include unmarried in the defi dering the decision uncitable. Foreman, (holding P.2d nition. 779 at 1203 Cf. provides meaning- this court Neither case with couples unmarried are included the state within guidance interpreting ful in the Free Exercise municipal prohibitions against discrimina Clause the Alaska Constitution. Moreover, status). based on tion marital the court Minnesota relied on the criminal anti-fomi- Seward, Chapel, City this In Seward Inc. v. contrast, statute cation then in effect. In Alas held, ruling "Our that court in Frank establishes provision repealed well ka's fornication was be there are situations in which the Alaska Constitu- discriminatory giving fore the conduct rise to this requires municipality except tion the state or a to French, Compare occurred. N.W.2d at case 460 facially persons neutral law reli- from a whose 10, Foreman, Further, with 779 P.2d at 1202. gious comply dictate with beliefs that not 1982) (Alaska court relied Consti the French tution, on the Minnesota the law." I, (footnote omitted). very article section which contains (indeed, object killing per requirement, party a must moose se meet the second season); hunting in question expressly in is allows that the conduct moose demonstrate based; in main- is derivative interest was religiously this determination the State’s religious healthy populations. from In resulting taining actions moose the limited to case, government’s unmar- to rent to the derivative in- rituals. refusal instant Swanner’s arguable housing basis providing is not without an in for ried is access terest faith, argue the Christian prospective in some tenets of diverse could that if a all. One therefore, sufficiently reli- housing being his conduct is finds alternative after tenant test. meet giously based to our initially reli- denied because of a landlord’s prelimi- three Although beliefs, Swanner meets the government’s gious the derivative in- exception an nary requirements to invoke government is satisfied. the terest laws, analysis the the anti-discrimination pre- in interest possesses also transactional here. does not end venting of discrimination based on irrel- acts regardless characteristics of whether evant exemp- previously, As discussed prospective ultimately find alter- the tenants religiously granted if tion will not be housing. native poses substantial impelled action “some safety, peace or order or threat look to Prince v. Commonwealth We competing are state interests where there Massachusetts, Frank, at 1070. highest order.” 604 P.2d Prince, analogy. In L.Ed. 645 question conduct The is whether Swanner’s States Court refused to the United public safety, peace or poses a threat exemption grant to child labor laws for order, governmental whether the interest distributing religious children literature. As in abolishing improper in discrimination case, had a transactional this state in act- housing outweighs preventing exploitation interest: of children on his beliefs. based Thus, objected employment. the state labor, issue, particular activity child view, part In of the test our second se, activity. not to an that per effect of adopted applicable in Frank is here. Under had legislature prohibited children from state test, part must deter- of the Frank we working under certain conditions. There- “a interest of competing mine whether state fore, any permitting child to work question highest order “The is exists.” harming govern- resulted in conditions interest, other, will suf- whether transactional interest. This transac- ment’s to accommo- granted fer if an government interest does not involve a tional Frank, religious practice date the at issue.” cutoff harm numerical below which the possesses government at 1073. 604 P.2d insignificant unlike in Frank. interest in two interests here: “derivative” everyone, ensuring access case, legisla- Similarly, in the instant indi- preventing a “transactional” interest municipal assembly determined ture on irrele- vidual acts of discrimination based housing discrimination based on irrelevant exercise vant characteristics. Most free characteristics should be eliminated. See cases, including “derivative” involve Motel, Hotel, Restaurant, Etc. Union Local words, interests. other the State Thomas, (Alaska v. 551 P.2d activity object particular does not 1976) (“[T]he statutory scheme constitutes a engage, the individual like to which would agency out and eradi- mandate to to seek concerned other variable but is about some in ... the rental of cate discrimination real activity can will This be affect. Protection, property.”); Loomis Electronic interest in contrasted with a “transactional” Schaefer, Inc. objects specific de- which the State 1976) (recognizing Legislature’s the Alaska activity sired itself. “strong purpose enacting in statement AS 18.80, Frank, exempt- pro- example, in court and its For avowed determination citizens”); Alaska Indian need- the civil of all Alaska ed a Central Athabascan tect 18.80.200; ing potlatch meat for from also AS AMC 5.10.010. The moose a funeral see distin- hunting regulations. The did not existence of this transactional interest state State guishes this Frank and most other L.Ed.2d 127 United ease from States Su- grant- courts preme free exercise cases where have Court stated distinction between government’s exemptions. ed transac- The activity religious commercial observance: preventing tional interest in discrimination When particular followers of a sect enter directly based on irrelevant characteristics activity into commercial as a matter of refusal to conflicts with Swanner’s rent choice, accept they the limits on their own government couples. unmarried The views conduct as a matter of conscience and independent acts of discrimination social faith, superimposed are not to be on the prospective evils even if the tenants ultimate- statutory binding schemes which are on ly Allowing housing. housing find discrimi- others in activity. that individuals, degrades nation that affronts hu- dignity, opportunities man and limits one’s Id. at 102 S.Ct. at 1057. government’s in harming results transac- complains applying that the anti- preventing tional interest in such discrimina- discrimination laws to business activities tion. clearly Under this interest will presents him with “Hobson’s choice”—to granted “suffer if an is to accom- give up his livelihood economic or act in religious practice modate the at issue.” religious contradiction to his A beliefs. simi- prove The dissent attempts argument lar in was Chap- advanced Seward state does not view marital status discrimina- el, argued Chapel apply- where Seward housing pressing problem by tion in as a ing city zoning prohibit ordinances to pointing to in other areas which the state parochial impermissi- construction of a school itself on marital discriminates based status. bly chapel’s burdened the free exercise easily those areas are distin- rights. 655 P.2d at 1299. We concluded that guished. government’s The interest here is showing “there has been no of a specifically eliminating in marital status dis- requires belief which members of Seward crimination in rather housing, than eliminat- Chapel specific place].... to locate in [a general. marital status discrimination in [T]he inconvenience and economic burden of Therefore, policies the other which allow Chapel complains which Seward now is marital status are in discrimination irrelevant largely by caused choice to in [a build determining government’s whether inter- (footnote specific place] ...” at 1302 Id. in eliminating est marital status discrimina- omitted). housing compelling. tion in is cites, In examples treating dissent showing Swanner has made no of a reli- couples differently married from unmarried gious requires engage belief which that he in arguably necessary to avoid fraud- property-rental Additionally, business. ulent availment of benefits available burden, choice,” the economic or “Hobson’s spouses. difficulty discerning whose complains, of which he is caused his choice genuine may bonds are and whose are not activity to enter-into a commercial justify requiring official certification of the regulated by anti-discrimination laws. Swan- marriage prob- bonds via a document. That voluntarily engaging property ner is in man- present housing lem is not cases: as this agement. regulate ordinance law and demonstrates, anything, case if an unmarried practices prop- unlawful in the rental of real couple together who wish to live are at a erty provide engage that those who disadvantage romantically to be claim those activities shall not discriminate on the involved. 18.80.240; basis of marital status. See AS Voluntary AMC 5.20.020. commercial activi- important It is note that burden ty does not receive status accorded placed religion by the same the state directly activity. Frank v. municipal eliminating discrimina Cf. State, (exempting 604 P.2d at an Atha- tion his conduct and falls on Here, hunting regulations bascan Indian from his beliefs. on his conduct the burden permit affects “to of the ancient his commercial activities. United the observance Lee, Athabascans”). 252, 102 States 71 traditions of the 5.10.013(C)(2).12 Additionally, “[a]ll the summarized AMCR “As Madison [James] every hearing examiner prevail the should recommendations point, free exercise deci- private ... shall be consistent with commission trespass it does case where regulations.” 5.10.- W. sions and AMCR public peace.” the Michael Revisionism, 013(C)(4). and McConnell, Free Exercise Decision, 1109, 1145 the Smith Chi.L.Rev. 5.10.015(A) AMCR states: omitted). (1990) (citation Because Swanner’s hearing party After a ... receives the trespass on the religiously impelled actions fact, findings proposed ... examiner’s couples to not be private right of unmarried order, proposed law conclusions of housing, he unfairly against discriminated may, person representative or his/her granted exemption from the cannot be days other time fixed within Therefore, laws. anti-discrimination chair, objections present to the the written of AMC 5.20.- that enforcement we conclude objection If no party commission. files does and AS 18.80.240 Swanner days, proposal within ten the shall become of reli- not violate his to free exercise final. gion under the Alaska Constitution. 5.10.- Swanner claims that AMCR Deprive

D. The AERC Did Not 015(A) directly with AMCR 5.10.- conflicts Due Process Law 013(C)(2) appears because 5.10.015 “[Section] 5.10.015(A) is Not an AMCR adopt hear permit the commission to Delegation Unconstitutional without examiner’s recommendations by the AERC content, considering its or rec ever rationale 5.10.013(C)(2) interprets He titude.” AMCR Anchorage Municipal autho- Code 5.10.040 authorizing only as “the full commission” (a) hearings; the AERC: hold rizes question is determinative determine which (b) subpoenas; to administer oaths and issue jurisdiction party; culpability or of of a (h) all delegate to its director executive culpability in hous Swanner asserts hold powers except power and duties ing discrimination was at issue. He contends (i) orders; hearings adopt and issue responsibility the AERC abdicated necessary evidentiary procedural rules by adopting hearing examiner’s recom fulfill the intent of 5. AMC 5.10.040. Title mendation, and, therefore, violat the AERC power procedural “adopt The AERC’s 5.10.013. ed AMCR evidentiary by promul- rules” effectuated municipal regulations. gating hearing correct that the Anchorage Municipal Regulations Code of authority did not to deter examiner have the (AMCR) hearing provides scope of the culpability. he mine Swanner’s Instead had examiner’s recommendation. recommendation, authority to make a exactly hearing Hearing ... rule on the Ex examiner shall which is what he did. admissibility proce- and other Landau recommendation to evidence aminer made a any adopt question dural matters. On which the AERC and AERC decided to Therefore, jurisdiction it. between would be determinative of the conflict exists 5.10.013(C)(2) 5.10.015(A), culpability of of the commission or of the AMCR and AMCR may regulations ... party, hearing examiner and the AERC its own followed adopting hearing full recomm make recommendations examiner’s commission. endation.13 agency regula- Februaiy repealed interprets On the AERC 13. Where an its own tions, properly a deferential standard of review 5.10.013 and AMCR 5.60.- AMCR 5.10.015. See recognizes agency that the able to 5.60.012(C), is best discern 003(F), (D) regulations for the new promulgating regulation its intent in at issue. replacing these sections. Comm’n, Entry Rose v. Commercial Fisheries apply regulations We existed when (Alaska 1982) (citing Kenneth C. began agency Swanner’s case at the level. Davis, 7.22, § Administrative Law Treatise (2d 1979)). ed. 105-08 Regulations Require Do Not an He claims that he became aware of the Independent by approve Review the AERC intent to hearing AERC’s exam- day iner’s recommended decision the after process fault with Swanner finds this objections due, proposed to the order were complains regulations and that the AERC’s when the AERC issued a memorandum stat- grant authority approve do not a hear ing proposed order became final. There- ing conducting examiner’s decision without fore, given he claims he was not “notice independent proce an review. No rule of calculated, reasonably under all the circum- provides indepen dure that the AERC must stances, apprise pendency of the [him] dently hearing review the examiner’s recom action, required by Alaska law.” 15.10.015(B) expressly mendations. AMCR provides for the AERC’s review of the hear Swanner cannot claim that he was unaware par examiner’s recommendations after a pendency of the of this action. The actual ty timely objection. files Swanner did not hearing in this matter occurred on October 9 therefore, objection; regulations file an 11, 1990, participated Swanner required independent review pre-hearing proce- seven months of formal AERC. discovery. clearly dures and Swanner was “pendency aware of the of this action.” Require 3. Due Process Did Not That the Moreover, readily AMCR 5.10.015was avail- Personally Notify AERC Swanner That able to and the Swanner from both the Adopt Hearing It Would Examiner’s Library. AERC the State Law Accord- Objection Recommendation Absent an ingly, deny did not AERC Swanner due Days Within Ten process. adop Swanner claims the AERC’s III. CONCLUSION hearing

tion of the examiner’s recommenda tion violated his constitutional to due impermissibly We hold that Swanner dis- process of law. Both the Alaska and United Bowles, Harper, criminated provide States person Constitutions that a Moose because he would not rent to them “life, deprived liberty, shall not be or based on their marital status. The Free property, process without due of law.” Alas Exercise Clause of the United States and Const, Const., 7;§ ka Art. amend. permit Alaska Constitutions do not Swanner XIV, § process requires 1. “Due depri ‘that disobey municipal the state and anti-dis- life, liberty adjudica vation of property by by entitling crimination laws him to an ex- proceeded by tion be appropriate notice ... emption. deny The AERC did not Swanner ” to the nature of the case.’ Wickersham v. process by following to due Comm’n, Entry State Com. Fisheries 680 procedural regulations. (Alaska 1984) (quoting Mul superior The AERC’s final order and the lome v. Central Hanover Bank and Trust opinion court’s are AFFIRMED. Co., 652, 656-57, (1950)). 94 L.Ed. 865 This court held “[a]n MOORE, C.J., dissents.

elementary requirement and fundamental MOORE, Justice, process dissenting. Chief proceeding

due which tois be finality reasonably accorded is notice calcu I, Article section of the Alaska Constitu- lated, circumstances, under all apprise tion that “[n]o declares law shall be made parties pendency interested of the of the respecting religion, an establishment of Co., Aguchak Montgomery action.” Ward prohibiting the free exercise thereof.” As Inc., 1974) majority correctly recognizes, provi- (adopting language analysis Mullane un may provide greater protection sion of free Constitution). der the Alaska provided than exercise is now Opinion states he did not receive the United States Constitution. object notice that hearing Accordingly, his failure to 280-281. while the United examiner’s adopted recommended decision would re- States Court has a new making sult in analyze the AERC the decision final. test to free exercise claims such as majority grant here,1 agrees therefore one at issue accommodate beliefs. apply continue to the that we will interpreting in the free exercise test interest First, determining I note that that the in Opinion at Alaska clause of the Constitution. in case is “of the governmental interest this 281. order,” majority the announces an highest State, examining entirely unnecessary test in new Frank v. Our decision (Alaska 1979), “transactional” and “derivative” the framework the state’s sets forth 1068 analy- Opinion at this interests. 282. Under we determine whether from which must sis, majority has the concludes that the state and AS violate Swan- 5.20.020 18.80.240 AMC transactional, se, religion. per prevent- or in of his a interest right to the free exercise ner’s Frank, acts based ing has a. “individual of discrimination in value “[n]o As we stated overrides system of irrelevant characteristics” which higher place in our rights in this case. religious freedom.” free exercise government than that of Swanner’s “transactional,” reason, facially interest a Because the P.2d at 1070. For this 604 evidentiary majority interferes concludes that no basis statute or ordinance which neutral justi- housing for required must be to show that rental religious-based conduct with couples Ab- How- by compelling a interest. Id. unmarried has become scarce. fied interest, ever, re- before the court would enforce such an our constitution sent “ensuring ac- at issue to “derivative” quires an from the laws state’s interest housing everyone,” at the AERC practices. Id. cess to accommodate apparently would an evidentia- have to make 1070-71. ry showing cohabitating that have majority acknowledges that Swanner’s finding experienced hardship in available exer fall within the ambit of the free actions ie., housing, poses conduct Swanner’s that his clause. Swanner has shown cise safety, public peace threat to or “substantial apartments indi to rent to unmarried refusal Frank, 604 order.” P.2d at plan of the who to live with member viduals faith, my analysis of opinion, amorphous based opposite sex is on his Christian ultimately prove to strictly proscribes such cohabitation. the state’s interests will which questions sincerity resolving of his reli future free exercise No one be useless case, in this I gious that he facilitates a sin rent cases. Even do believe belief a useful the interests ing provides to unmarried such as the com distinction of individuals example, majority Opinion in this at 281- For deter- plainants case. See issue. objection reason, religiously per the state For this mines that has a se Swanner’s protected impelled conduct be marital status discrimination must exercise law unless AERC can show which overcomes Swanner’s free Alaska majority poses rights. threat to defines this interest the conduct “some substantial order,” safety, peace “preventing there or that acts of discrimination Opinion competing governmental “of on irrelevant exist interests based characteristics.” highest order” not otherwise an articulation of the state’s which are at 282. Such myriad is to limiting poses questions. conduct. interest Who served without (citing v. is an character- 604 P.2d at 1070 Wisconsin determine what “irrelevant” 1526, 1533, Yoder, 205, 215, Obviously, is not “irrel- 92 S.Ct. istic? marital status Verner, ques- 15 It is 32 L.Ed.2d and Sherbert evant” Swanner. central committing 10 he will a sin tion whether be U.S. (1963)); religion. Chapel, Inc. v. under the dictates of his Is L.Ed.2d Seward Seward, of relevan- City legislative 1301 n. 33 branch final arbiter 1982). Further, cy irrelevancy? discrimina- I do the AERC not believe I here on innate has met its burden in this case. would tion at issue is not based 1595, 1603-06, (1990). Div., Employment Dep’t Human Re- L.Ed.2d 876 1. See Smith, 872, 884-90, sources v. highest order,” “characteristics” but rather on the conduct of is “of the I cannot potential tenants. this conduct is While wor- agree reasoning with the court’s and result- thy protection, it of some does not warrant ing essence, decision. In majority’s con- protection given the same constitutional clusion is that marital status discrimination religiously compelled I am conduct. not will- constitutes such an affront to dignity human place to cohabitate on the per that the state obligation has se “of the same constitutional level as the to free- highest prevent my order” to it. Based on dom from discrimination based on either in- analysis of free jurisprudence exercise gen- nate characteristics —such as race or surrounding the issues marital status dis- constitutionally belief, protected der —or crimination, I cannot conclude that eradi- religion. freedom of as cation of marital status discrimination in the addition, In it remains unclear to me how housing industry rental govern- constitutes a the state’s “derivative” interests are to be high mental interest of such order as to Here, identified. interest is defined justify burdening Swanner’s fundamental explanation being with little the state’s rights.2 constitutional “providing interest access to for Opinion all.” at 282. Does this mean the question There can be no that the state per objection state has no se to the fact that compelling has a eradicating interest in dis may some individuals have limited access to against crimination historically certain disad Frank, housing? In it could not be said that See, vantaged groups. e.g., Bob Jones Uni per enforcing state had a se interest in States, versity v. United 461 U.S. 593- hunting regulations? 2017, 2029-30, 76 L.Ed.2d 157 In this court set forth a workable (1983) (racial discrimination); Roberts v. guide and sufficient to determine whether a 609, 625, 104 Jaycees, United States governmental sufficiently compel- interest is 3244, 3253-54, S.Ct. 82 L.Ed.2d 462 ling to overcome an individual’s free exercise discrimination). (gender compelling This in rights. 604 P.2d at 1070. It seems to me terest has been found to exist based on a majority’s expand that the effort to this anal- determination that the discrimination at issue ysis adds little to analysis the actual of inter- personal dignity is so invidious to and to our contrary, ests at stake. To the I see the concept fair of treatment as to warrant strict majority’s expansion of Frank as little more protection. question There is no that Swan- than a distinguish strained effort to Frank freely ner’s religion exercise his present from the situation when such a dis- justified. could and logically engaged tinction is not should be burdened if he In this effort, majority totally ignores record such discrimination as a result of his reli case, engages game and it in a where gious beliefs. the “transactional” or “derivative” label at- mean, however, This fact does not any given tached to predeter- interest every equally form of discrimination is invidi- mines the outcome of the case.

ous or that preventing the state’s interest in governmental There is no necessarily outweighs fundamental consti- “of highest justify order” to the burden on Rather, rights. tutional the cases which rights. Swanner’s fundamental upheld imposition have on free exercise specific applying Even have articulated certain reasons that the framework announced analyzing the court in whether the state’s particu- some forms of discrimination are of Significantly, 18.80.200; majority general puipose cites no cases to statement of AS however, support proposition that the state has a com- neither case does so to establish pelling eradicating compelling interest'in marital status dis- existence of a state interest. Both crimination, discrimination, particularly gender when the discrimina- cases involved the eradi- tion at issue must be balanced interests cation of which has been held to be a interest, magnitude. appli- Both Loomis Elec. as I discuss Neither case is infra. Protection, (Alas- case, Schaefer, Inc. v. 549 P.2d 1341 cable to the instant where marital status Hotel, Motel, 1976), Restaurant, ka Constr. discrimination is involved and where the dis- criminating party Camp Employees asserting and Bartenders Union Local 879 a core constitution- Thomas, (Alaska 1976), 551 P.2d 942 cite the al freedom. deserving stereotypical no- individuals labor under governmental lar interest and relationship to judicial scrutiny. In Bob Jones that often heightened tions bear States, thereby de- University v. United their actual abilities. It both dignity prives persons 76 L.Ed.2d 157 individual their Supreme refused to example, society Court of wide and denies the benefits economic, tax-exempt that main- grant political, status to schools and cul- participation racially discriminatory policies tained tural life. doing interpretation of Bible. their (citations at 104 S.Ct. at 3253. omit- Id. so, long the Court this nation’s discussed ted). society also The Court observed officially segrega- history sanctioned racial recognized generally importance had It fur- discrimination in tion and education. removing “the to economic advance- barriers that, 1950s, every noted the late ther since political integration that ment and and social pronouncement historically plagued disadvan- have certain Congress myriad Acts of and Executive Or- groups, including taged women.” Id. policy prohibiting to a ders attested national at 3254. these conclu- 104 S.Ct. Based on 604, 594-95, 103 discrimination. Id. at such sions, no that the state it was stretch to find 2029-30, conclud- at 2035. It therefore S.Ct. possessed compelling in eradicat- interest “[tjhere longer any can that be doubt ed discrimination, ing gender that this in- and racial in vio-

that discrimination education Jay- was sufficient terest to overcome deeply widely accepted and views of lates 626-29, First Id. at cees’ Amendment claim. justice.” 592, elementary 103 at Id. at S.Ct. at 3254-56. S.Ct. Accordingly, government’s inter- eradicating in racial discrimination ed- est majority today engaging avoids compelling. was found ucation be analysis of similar marital status discrimina- Similarly, Jay in Roberts v. States United explain why damaging or tion to how it is so cees, 609, 104 468 U.S. 82 L.Ed.2d dignity govern- to human become of such (1984), that Court declared import as to a fundamental mental overcome compelling eradicating the state’s right.3 This'analysis is critical. jus citizens discrimination its female majority cites no that marital evidence any minimal an all- tified interference with status classifications have been associated organization’s expressional male freedom history of with a unfair treatment that would weight In analyzing association. of the heightened protec- governmental warrant interest, the in state’s Court discussed contrary, To the I the law is tion.4 believe bias, gender stating: vidious nature of clear that marital status classifications have relatively import archaic and on the [Discrimination based on been accorded low assumptions deserving governmental relative interests overbroad about the scale of instance, capacities protection. government forces For needs of the sexes lief, itself, majority decision belief at 3. While the contends that its like the must therefore be conduct, only today affects not his presumptively protected by the Free Exer- least beliefs, Opinion religious Clause.”). I do not believe I cise would hold that conduct that is distinguishes the Alaska so Constitution by religious presump- motivated sincere belief is religious religious clearly between belief I, by tively protected Article section 4. (because conduct. See 604 P.2d at 1070 relationship close conduct and of the between majority pronounces government 4. The that "the belief, assign high we and because value independent acts of as so- views discrimination beliefs, religious religiously impelled actions can evils_” Opinion analysis cial at 283. This only outweighed by be forbidden are where specific ignores the issue here: discrimination in interest). governmental compelling See also housing based on marital status-. Had Swanner’s Yoder, Wisconsin v. compelled religious beliefs him to discriminate 1535-36, (1972) ("[Bjelief 32 L.Ed.2d 15 gender, based on characteristics such as race or logic- neatly and action cannot be confined in clearly deny exemption. would vote I However, Smith, tight compartments.”); 494 U.S. at J., I am not that marital status (O’Connor, convinced concurring) 110 S.Ct. at 1608 compa- (“Because is or as discrimination should be treated the First does not distin- Amendment any way religious gender guish duct, rable in race or discrimina- between con- belief conduct be- motivated sincere tion. rights suspect itself discriminates based on marital status in mental categories in- are volved, regards, sugges- equal protection analysis numerous there is no under the practice that this should requires tion be reexamined. Alaska Constitution compelling interest). explicitly Alaska law sanctions discrimi- (intestate See, e.g., nation. AS 13.11.015 suc- level, At the federal the eradication of partner cession does not benefit unmarried marital status housing discrimination 23.30.215(a) (workers’ decedent); AS com- clearly context has not been treated as a only pensation surviving death benefits Neither interest.5 the Federal child, spouse, parent, grandchild, sibling); Act, Housing § Fair (1988), U.S.C. (no Alaska R.Evid. 505 marital communica- Act, Rights nor the Federal Civil 42 U.S.C. privilege couples); tion between unmarried §§ prohibit 1981 and 1982 would Serradell v. Accident & Indemn. Hartford precise form of marital status discrimination Co., (Alaska 1992) (no here, at issue being unless was used as a coverage partner insurance for unmarried pretext egregious for a more form of discrim- family policy). accident insurance ination, such based on race. See addition, marital status classifications Assocs., Marable v. H. Walker & 644 F.2d any heightened have never been accorded (5th Cir.1981) (finding a violation of scrutiny Equal under the Protection Clause housing the fair and civil statutes of either the federal or the Alaska Constitu that, concluding after although the landlord Disparate tions. treatment of individuals asserted he refused to rent race, based on classifications such as on the status, applicant’s based on the marital hand, highest other are reviewed under the pretext excuse was a mere for racial discrim- See, scrutiny. e.g., Korematsu v. United ination); Kushner, see also James A. The States, 214, 193, 323 U.S. 65 S.Ct. 89 L.Ed. Housing Fair Amendments Act 1988: The (1944) (restrictions curtailing the civil Housing, Second Generation Fair rights single of a group racial are immediate (1989) (the Vand.L.Rev. Fair ly suspect scrutiny analy and deserve strict Housing protect Act does not unmarried cou- sis). Gender-based classifications are simi ples from a landlord’s refusal to a rent unless larly analyzed heightened under a level case can be made that the marital status See, scrutiny at e.g., the federal level. Wen racial, merely pretext discrimination is for Co., gler Druggists v. Mut. Ins. 446 U.S. ethnic, religious gender-based or discrimina- 1540, 1545, 64 L.Ed.2d 107 tion). (1980) (gender-based discrimination must My single research has not revealed a important governmental objectives serve government’s instance which the interest discriminatory employed means must be eliminating marital status discrimination substantially related to the achievement of weight has been accorded substantial when objectives). sliding approach those The scale interests, against balanced other state let equal protection analysis to under the Alaska rights. alone fundamental I similarly applies heightened Constitution nothing suggest find to that marital status scrutiny level of burdening to laws racial outweigh discrimination is so invidious as to suspect minorities other classifications. right the fundamental to free exercise Ostrosky, See State v. 667 P.2d religion. (Alaska 1983) (“[L]aws embody which classi majority fication schemes that are more constitutional comments that result to- ly suspect, discriminating day justified right such as laws is because Swanner’s to minorities, religious racial or ethnic are more the free exercise of his beliefs must Erickson, strictly scrutinized.”); weight State v. 574 be accorded less he has entered since 1978) (where 11-12 Opinion funda- the commercial arena. at 283-284. (Alaska 1976) recognize majority's 5. While I that Alaska's antidiscrimi- failure to —the legislation substantially nation comparable is not similar any authority cite interest at the see, Hotel, Motel, e.g., federal laws— state level in this case leads me to make this Restaurant, Camp Employees Constr. Bar- comparison guidance. for further Thomas, tenders Union Local 879 v. 551 P.2d activity totally prohib- No was above, P.2d at 1302. well-accepted it is discussed As ited; it could be place which religious freedom will right to an individual’s being regulated. I believe other inter was always override conducted and cannot Lee, See, significant difference between that there is a e.g., United States ests. upon Chap- 252, 261, 102 placed 71 L.Ed.2d Seward the inconvenience employer’s abrogation claim that of Mr. Swanner’s (rejecting Amish el and the total security living profession violated his in his chosen right taxes to earn a imposition of social sincerely religious Lee rights). abiding neither held while free exercise I am aware case of which nor other beliefs. individuals proposition that for the stands in the record to conclude There is no basis their constitu altogether waive

like Swanner create exemption in this case would that an religion the free exercise tional harm. a substantial threat their reli a conflict between simply because in a legislation occurs and some gious faith required this court contrary, context. To the commercial precisely how its interest state establish that, in a recognized even com Lee Court exemption granted to suffer if an was would justify its setting, the state must mercial at issue. conduct accommodate liberty by showing the limitation on Thus, accepting that at 1073. even accomplish an over is “essential limitation strong in as- government has a 257-58, interest.” Id. at riding governmental housing, must suring available the AERC simply has 1055. The AERC 102 S.Ct. at in real how this interest will suffer show here. to meet that burden failed exemption granted terms Swanner. majority suggests that con in the record I see no evidence whatsoever accorded lesser rights must be stitutional poses a suggest that Swanner’s conduct voluntarily engages in the weight he because safety, peace substantial threat industry, management and his property such that the burden on Swanner’s order engage in that business is not entitled reason, justified. For this I fail to Opinion at 283-284. judicial protection. why to accommodate Swan- see stated that “the this court has religious beliefs is not warranted. ner’s engage in an economic endeavor to speculation housing for unmarried Mere industry ‘important’ particular is an within a may exemption couples become scarce an protection purposes.” equal for state to a com granted is insufficient establish Inc., Constr., Alaska State v. Enserch Frank, In we pelling governmental interest. (Aaska 1989) (citing Commer speculat specifically criticized the state for Entry Apokedak, v. Comm’n cial Fisheries data, ing, any supporting that an without (Alaska 1980)). 1255, 1266 regulations exemption hunting to for moose industry, ability participate particular in a potlatch open an Athabascan funeral would property management, rental gates widespread poaching. Id. the flood “ protection to more therefore entitled 1074. We stated: ‘Justifications founded majority ac than the our state constitution apprehension are insuffi only on fear and knowledges. rights asserted under the cient to overcome ” (quoting v. Amendment.’ Id. Teterud majority incorrectly relies on Seward First Cir.1975)). (8th Burns, contrary 522 F.2d 361-62 at its conclusion. Chapel to arrive that, had case, further found since the state present Chapel did We Unlike the Seward many any that so giving presented evidence a forced decision between not involve potlatch taken for funeral violating religious moose would be up livelihood or one’s one’s pop jeopardize appropriate merely found ceremonies as Chapel, we beliefs. Seward levels, it had not met its burden required exception an ulation that no belief curtailing religious practice at is justify city zoning prohibiting the location of laws specific 655 sue. Id.6 parochial a sehool on a site. pre- Supreme evidentiary support supported United States Court requirement Our Bd. Indiana grant exemption cedent. See Thomas v. Review is well- state's refusal completely

As the record here is suggest devoid of evidence to that there PUHLMAN, Appellant, Terrence L. many property managers are so landlords or Anchorage whose beliefs are identical to as to constitute a sub- TURNER, formerly Carol A. known housing. city stantial threat to available In a Puhlman, Appellee. as Carol A. Anchorage, the size of it is difficult to con- clude based on intuition alone that No. S-5422. availability for unmarried will be- come so scarce as constitute a substantial Alaska. community threat to welfare. If there were May persuasive support some evidence to such a conclusion, may I well have at a arrived today.

different conclusion

Conclusion

I presented believe has been with complying Hobson’s choice of either with abandoning precepts

the law or of his

religion. government’s Since the interest in particular outweigh law does not Swan- religious rights,

ner’s fundamental granted

should be to accommo-

date his beliefs. The AERC relies on noth- pure more than a conclusion that preventing

state has interest in housing.

marital status discrimination in It presented any

has not evidence that an ex-

emption in this case would result a sub- housing availability.

stantial threat Nor explain exactly

does it what is so invidious

about marital status discrimination as to proscription governmental

make its inter- order, highest

est of the comparable with the in eradicating gen-

state’s interest racial or reasons,

der discrimination. For these I fail see how a limited for Swanner similarly justified.

and others situated is not my opinion, analysis and result set

forth in this case will return to haunt this

court future decisions. Div., 707, 719, 398, 407, Employment 1790, 1795, Sec. 450 U.S. 374 U.S. 83 S.Ct. (1981) (1963) (“[Tlhere (reject- proof L.Ed.2d 624 L.Ed.2d 965 is no whatev- refusing state’s asserted reasons for a reli- er to warrant such fears ... as those which the Smith, gious advance[s]."); exemption due to lack of [state] evidence in the now see also Yoder, record); (Blackmun, J., Wisconsin v. 224- U.S. at 110 S.Ct. at 1618 1526, 1537-40, (state’s dissenting) 32 L.Ed.2d 15 assertion that ex- (rejecting argument concerning emption peyote state’s the dan- use would health and harm gers religious exemption speculative safety lative). unsupported specu- of a of state citizens Vemer, record); unsupported by the Sherbert v. notes two have different from the Alaska Constitution. French, may 460 N.W.2d at that a landlord to unmar See held refuse to rent ried because of beliefs. his/her Housing Employment v. In Donahue Fair He cites to decisions from and Cali Minnesota Comm'm, Cal.Rptr.2d (Cal.App.1991), re- proposition for the fornia that enforcement of the opinion granted superseded, view 5 Cal. anti-discrimination laws him violates his (Cal.1992), Rptr.2d 825 P.2d 766 review French, remanded, to free exercise. In Minnesota improvidentlygranted dismissed as (Minn. 1990), (Cal.1993), 460 N.W.2d the Minnesota Su Cal.Rptr.2d 859 P.2d 671 preme Appeal although Court held that a to rent landlord’s refusal California Court held that prohibited did constitute couple unmarried Minneso landlords' conduct mar- did not violate discrimination, ital en- enforcing status landlords were ta's anti-discrimination laws and titled to an from the anti-discrimina- would violate the exercise laws landlord's free of their tion laws because beliefs. French, right. the anti-discrimina independent its decision court based "on

Case Details

Case Name: Swanner v. Anchorage Equal Rights Commission

Court Name: Alaska Supreme Court

Date Published: May 13, 1994

Citation: 874 P.2d 274

Docket Number: S-5362

Court Abbreviation: Alaska