The Supreme Court/The Supreme Court.iso/pc/ascii/1994/94_169/94_169.za

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SUPREME COURT OF THE UNITED STATES
TOM SWANNER, dba WHITEHALL PROPERTIES v.
ANCHORAGE EQUAL RIGHTS COMMISSION et al.
on petition for writ of certiorari to the supreme
court of alaska
No. 94-169.  Decided October 31, 1994

  The petition for a writ of certiorari is denied.
  Justice Thomas, dissenting.
  Petitioner owns residential rental property in Anchor-
age, Alaska.  He maintained a consistent policy of refus-
ing to rent to any unmarried couple who intended to live
together on his property, based on his sincere religious
belief that such cohabitation is a sin and that he would
be facilitating the sin by renting to cohabitants.  At the
instigation of several people to whom petitioner applied
his policy, respondent ruled that petitioner had violated
state and local ordinances that prohibit landlords from
basing rental decisions on prospective tenants' -marital
status.-  Petitioner appealed to the Alaska Superior
Court, which upheld respondent's ruling.  The Alaska
Supreme Court affirmed, concluding that the application
of the ordinances to petitioner's conduct did not violate
his right to the free exercise of religion under either the
United States Constitution or the Alaska Constitution.
874 P. 2d 274, 279-284 (1994) (per curiam).
  The Alaska Supreme Court also ruled that petitioner
had no defense to the state and local ordinances under
the Religious Freedom Restoration Act of 1993 (RFRA),
107 Stat. 1488, 42 U. S. C. 2000bb et seq. (1988 ed.,
Supp. V), enacted during the pendency of the proceed-
ings below.  RFRA provides that a governmental entity
-shall not substantially burden a person's exercise of
religion even if the burden results from a rule of general
applicability,- unless the entity -demonstrates that appli-
cation of the burden to the person . . . is in furtherance
of a compelling governmental interest.-  2000bb-1(a),
(b)(1).  In a footnote, the opinion below dismissed peti-
tioner's invocation of this Act of Congress: -Assuming
that the Act is constitutional and applies to this case, it
does not affect the outcome, because we hold in the next
section that compelling state interests support the prohi-
bitions on marital status discrimination.-  874 P. 2d, at
280, n. 9.  Petitioner seeks review of this latter ruling.
I would grant certiorari to resolve whether, under RFRA,
an interest in preventing discrimination based on mari-
tal status is sufficiently -compelling- that respondent
may substantially burden petitioner's exercise of religion.
  RFRA explicitly adopted -the compelling interest test
as set forth in Sherbert v. Verner . . . and Wisconsin v.
Yoder.-  42 U. S. C. 2000bb(b)(1) (1988 ed., Supp. V).
In Sherbert v. Verner, 374 U. S. 398 (1963), we stated:
-It is basic that no showing merely of a rational rela-
tionship to some colorable state interest would suffice;
in this highly sensitive constitutional area, `only the
gravest abuses [by religious adherents], endangering
paramount interests, give occasion for permissible limita-
tion [on the exercise of religion].'-  Id., at 406 (quoting
Thomas v. Collins, 323 U. S. 516, 530 (1945)).  And in
Wisconsin v. Yoder, 406 U. S. 205 (1972), we emphasized
that the government's asserted interest must be truly
paramount: -The essence of all that has been said and
written on the subject is that only those interests of
the highest order . . . can overbalance legitimate claims
to the free exercise of religion.-  Id., at 215 (emphasis
added).
  I am quite skeptical that Alaska's asserted interest in
preventing discrimination on the basis of marital status
is -compelling- enough to satisfy these stringent stand-
ards.  Our decision in Bob Jones University v. United
States, 461 U. S. 574 (1983), is instructive in the context
of asserted governmental interests in preventing private
-discrimination.-  In that case, we held that -the Gov-
ernment has a fundamental, overriding interest in eradi-
cating racial discrimination in education.-  Id., at 604.
We found such an interest fundamental and overriding-
in a word, -compelling,- see ibid.-only because we had
found that -[o]ver the past quarter of a century, every
pronouncement of this Court and myriad Acts of Con-
gress and Executive Orders attest a firm national policy
to prohibit racial segregation and discrimination in pub-
lic education.-  Id., at 593 (discussing, inter alia, Brown
v. Board of Education, 347 U. S. 483 (1954); Cooper v.
Aaron, 358 U. S. 1 (1958); and Title VIII of the Civil
Rights Act of 1968 (Fair Housing Act), 42 U. S. C. 3601
et seq. (1976 ed. and Supp. V)).
  By contrast, there is surely no -firm national policy-
against marital status discrimination in housing deci-
sions.  Chief Justice Moore, dissenting in the case below,
correctly observed that -marital status classifications
have never been accorded any heightened scrutiny under
the Equal Protection Clause of either the federal or the
Alaska Constitutions.-  874 P. 2d, at 289.  Accord,
Smith v. Shalala, 5 F. 3d 235, 239 (CA7 1993) (-Because
[a] classification based on marital status does not in-
volve a suspect class . . . , we must examine it under
the rational basis test-), cert. denied, 510 U. S. ___
(1994).  Moreover, the federal Fair Housing Act does not
prohibit people from making housing decisions based on
marital status.  See 42 U. S. C. 3604 (outlawing hous-
ing discrimination on the basis of race, color, religion,
sex, handicap, familial status, or national origin).  Cf.
3602(k) (defining -familial status- to mean the domicile
of children with adults).
  Nor does Alaska law, apart from the statutes at issue
in this case, attest to any firm state policy against mar-
ital status discrimination.  Indeed, as the dissent below
pointed out:
-Alaska law explicitly sanctions such discrimination.
See, e.g., AS 13.11.015 (intestate succession does
not benefit unmarried partner of decedent); AS
23.30.215(a) (workers' compensation death benefits
only for surviving spouse, child, parent, grandchild,
or sibling); Alaska R. Evid. 505 (no marital com-
munication privilege between unmarried couples);
Serradell v. Hartford Accident & Indemn. Co., 843
P. 2d 639, 641 (Alaska 1992) (no insurance coverage
for unmarried partner under family accident insur-
ance policy).-  874 P. 2d, at 289.
The majority admitted that these were -areas in which
the state itself discriminates based on marital status.-
Id., at 283.
  If, despite affirmative discrimination by Alaska on the
basis of marital status and a complete absence of any
national policy against such discrimination, the State's
asserted interest in this case is allowed to qualify as a
-compelling- interest-that is, a -paramount- interest,
an interest -of the highest order--then I am at a loss
to know what asserted governmental interests are not
compelling.  The decision of the Alaska Supreme Court
drains the word compelling of any meaning and seriously
undermines the protection for exercise of religion that
Congress so emphatically mandated in RFRA.
  Although RFRA itself is a relatively new statute, the
state courts have already exhibited considerable confu-
sion in applying the Sherbert-Yoder test to the specific
issue presented by this case.  Apart from this case, the
highest courts of Massachusetts and Minnesota are each
deeply split on the question whether preventing -marital
status- discrimination is a -compelling- interest under
our precedents, and the California Court of Appeal has
twice applied the compelling interest test adopted by
RFRA in reaching decisions that are directly contrary
to the decision below.  See Attorney General v. Desilets,
418 Mass. 316, 636 N. E. 2d 233 (1994); State ex rel.
Cooper v. French, 460 N. W. 2d 2 (Minn. 1990); Smith
v. Fair Employment and Housing Commission, 30 Cal.
Rptr. 2d 395 (Cal. App.), review granted, ___ P. 2d ___
(Cal. 1994); Donahue v. Fair Employment and Housing
Commission, 2 Cal. Rptr. 2d 32 (Cal. App. 1991), review
granted, 825 P. 2d 766 (Cal. 1992), review dism'd, cause
remanded, 859 P. 2d 671 (Cal. 1993).  By itself, this
confusion on an important and recurring question of fed-
eral law provides sufficient reason to grant certiorari in
this case.
  I respectfully dissent.