SEATTLE UNIVERSITY LAW REVIEWVolume 24, No. 1SUMMER 2000
The Ninth Circuit's "Hybrid Rights" Error: Three Losers Do Not Make a Winner in Thomas v. Anchorage Equal Rights Commission
Eric J. Neal(fn*)
I. Introduction
On January 14, 1999, the Ninth Circuit Court of Appeals entered the debate over whether religious landlords have a constitutional right to discriminate against unmarried cohabitants in Thomas v. Anchorage Equal Rights Commission.(fn1) The plaintiffs in Thomas brought an action against the State of Alaska and the City of Anchorage, claiming that the inclusion of 'marital status' as a protected class in both the state law(fn2) and a city ordinance against discrimination(fn3) violated the plaintiffs' First Amendment right to the free exercise of religion.(fn4)
Kevin Thomas and Joyce Baker, both devout Christians, were residents of Anchorage, Alaska, and were the owners of various rental properties in the Anchorage area.(fn5) Thomas and Baker filed suit to enjoin the state and city from enforcing the antidiscrimination laws against them.(fn6) They claimed that they had, in the past, violated the laws, and would continue to do so in the future. Thomas and Baker believe that unmarried couples living together commit the sin of fornication. Thus, they believe that by allowing fornication on their rental properties, they too would commit sin.(fn7) They contended, therefore, that enforcement of the antidiscrimination laws against them violated their constitutional right to the free exercise of religion.(fn8)
The district court agreed with Thomas and Baker, and, acting under the Religious Freedom Reformation Act(fn9) (RFRA), found that enforcement of the statutes did violate the plaintiffs' First Amendment rights.(fn10) On appeal, the Ninth Circuit analyzed the issue under a different standard because the United States Supreme Court had, in the meantime, declared RFRA unconstitutional.(fn11) Therefore, the Ninth Circuit was left to determine the validity of the plaintiffs' claims under the standard set forth by the Supreme Court in Employment Division, Department of Human Resources of Oregon v. Smith.(fn12) Despite the change in controlling law, the Ninth Circuit still found in favor of the plaintiffs by relying on the "hybrid rights"(fn13) language of Smith.
If allowed to stand, the ramifications of this ruling will extend far beyond the scope of the religious landlord/unmarried cohabitant issue.(fn14) Under Thomas, religious objectors to any law can invoke strict scrutiny analysis simply by adding additional constitutional claims to their religious complaints.(fn15) As long as those other claims are "colorable," the state must then satisfy strict scrutiny, justifying the challenged law by showing a compelling government interest in achieving the law's effect.(fn16) Furthermore, the state must show that the law is narrowly tailored to achieve that government interest.(fn17) This rigorous standard will render many state and local laws vulnerable to attack by religious objectors. We will then live in a system in which different rules exist for different people depending on how strongly each holds to his or her religious beliefs.
The religious landlord/unmarried cohabitant debate has steadily gained momentum since the 1970s, when states began to include the term "marital status" in their antidiscrimination and fair housing laws. As of this writing, twenty-two states include "marital status" as a protected class in their antidiscrimination and fair housing laws.(fn18) However, Connecticut and Oregon explicitly bar protection of unmarried cohabitants in their definitions of marital status.(fn19) The remaining twenty states include marital status as a protected class, but none of them explicitly include unmarried cohabitants in the definition of marital status.(fn20) Thus, the debate materializes.(fn21) Are unmarried cohabitants a protected class within the meaning of the general prohibitions against marital status discrimination? The question is further complicated by the issue of whether individuals with sincerely held religious beliefs are constitutionally exempted from compliance with these laws because the laws interfere with their free exercise of religion.
Because the Ninth Circuit, in reaching its Thomas decision, relied on Smith's hybrid rights language, this Note will focus on the court's analysis of that subject. By applying the hybrid rights' dicta instead of following the actual holding in Smith, the Ninth Circuit reached a conclusion that is illogical and does not comport with current Supreme Court free exercise jurisprudence. This Note will discuss the Thomas court's analysis and will propose a logical interpretation of Smith that more closely reflects the Supreme Court's actual position regarding the Free Exercise Clause.(fn22)
II. Free Exercise Jurisprudence
A. Pre-Smith
To fully understand the hybrid rights controversy, one must first gain a brief understanding of the tumultuous history of the Free Exercise Clause. The First Amendment of the United States Constitution provides that "Congress shall make no law. . . prohibiting the free exercise [of religion]."(fn23)
The first major case to discuss the language of the First Amendment(fn24) was Reynolds v. United States (fn25) in 1878. Reynolds involved a criminal appeal from the United States Territory of Utah on the defendant's conviction for criminal bigamy.(fn26) The defendant claimed an exemption from the law based on his religious beliefs as a member of the Church of Jesus Christ of Latter-Day Saints, also known as the Church of Mormon.(fn27) After a brief discussion of the First Amendment's applicability to a United States Territory, the Court inquired as to what the religious freedom guarantee really guarantees.(fn28)
Chief Justice Waite, writing for the Court, concluded that "Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order."(fn29) He went on to state that to allow a religious objector an exemption, "would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself."(fn30) The Reynolds rule dominated free exercise jurisprudence for over 80 years.
Reynolds controlled free exercise jurisprudence until the Supreme Court reversed field in the 1963 case Sherbert v. Vemer.(fn31) Sherbert involved a member of the Seventh-day Adventist Church who, because of religious conviction, was unavailable for work on Saturdays, the Sabbath Day of her faith.(fn32) The religious objector in Sherbert was unable to find work because all of the mills in the area required a six-day work week.(fn33) She was then denied unemployment benefits by the State of South Carolina because the State determined that she was not "available" for work, a prerequisite for benefits.(fn34)
The Supreme Court concluded that "to condition the availability of benefits upon the appellant's willingness to violate a cardinal principal of her religious faith effectively penalizes the free exercise of her constitutional liberties."(fn35) Thus, the Court held that any burden on the free exercise of religion must be justified by a "compelling state interest,"(fn36) and that "[o]nly the gravest abuses, endangering paramount interest, give occasion for permissible limitation."(fn37) The Sherbert rationale set up a seemingly insurmountable burden on governmental action when that action was confronted by religious objectors.
Applying the Sherbert rule in 1971, the Supreme Court held that enforcement of Wisconsin's compulsory education law violated the free exercise rights of religious objectors.(fn38) In Wisconsin v. Yoder, Old Order Amish parents objected to a Wisconsin law that required children to attend school until the age of 16.(fn39) The Amish faith required that children learn by "doing," and that they should avoid contact with the outside world.(fn40) The Court first balanced the interests of the state against the burden the law placed on the objector's free exercise rights.(fn41) The Yoder Court then held that "only those interests of the highest order . . . can overbalance legitimate claims to the free exercise of religion."(fn42) Recognizing that the state did have a legitimate interest in the education of its citizens, the Court still held that the state's interest was not sufficiently compelling as against the objections of the Amish parents.(fn43) The importance of the Yoder decision may seem elusive at this point, but, for reasons to be discussed below, Yoder is the reason 'hybrid rights' entered the lexicon of free exercise jurisprudence.
As a further illustration of the Supreme Court's use of the Sher-bert rule, in United States v. Lee, the Court reached a different result.(fn44) In Lee, the Court had before it a controversy involving a member of the Old Order Amish who sued to recover his previously paid social security taxes based on his religious opposition to nationalized welfare.(fn45) The Court balanced the interest of the government against the burden on the religious objector and found that the government's interest in the social security system was sufficiently compelling to justify the burden on free exercise rights.(fn46) The Court stated that "[t]o...
