Thomas

dissenting:

The approach of the majority ought to alarm any serious student of judicial restraint. It decides a controversy that does not exist, in favor of parties who have suffered no harm and turns on its head the notion that state and local laws of general and uniform application are entitled to substantial deference. Tossed aside in the process is a statutory provision that has been widely upheld — in the face of challenges far more firmly grounded in fact and law than this — by state supreme courts throughout our circuit. See Smith v. Fair Employment and Housing Comm’n, 12 Cal.4th 1143 , 51 Cal.Rptr.2d 700 , 913 P.2d 909 (1996), cert. denied, — U.S. -, 117 S.Ct. 2531 , 138 L.Ed.2d 1031 (1997); Swanner v. Anchorage Equal Rights Comm’n, 874 P.2d 274 (Alaska), ce rt. denied, 513 U.S. 979 , 115 S.Ct. 460 , 130 L.Ed.2d 368 (1994).

Thomas & Baker seek a declaration that an Alaska statute and a companion Anchorage Ordinance are unconstitutional because they offend their religious belief that unmarried persons should not cohabitate. Thomas & Baker claim to have violated these laws in the past by refusing to rent to unmanned couples; yet they cannot provide the name of a single…

We must decide whether the enforcement of Alaska housing laws prohibiting apartment owners from refusing to rent to unmarried couples infringes Christian landlords’ rights under the Free Exercise Clause of the First Amendment.

I

Kevin Thomas and Joyce Baker are owners of residential rental properties in Anchorage, Alaska. 1 Thomas and Baker, as it turns out, are also professed Christians who believe that cohabitation between unmarried individuals constitutes the sin of fornication and that facilitating cohabitation in any way is tantamount to facilitating sin. That Thomas and Baker’s beliefs regarding fornication are firmly rooted both in Biblical text 2 and in the commentaries of respected Christian theologians is not disputed by the parties. 3 Thomas and Baker have committed themselves to practicing their faith in all aspects of their lives, including their commercial activities as landlords. As a result, although they willingly rent to persons of any race, persons of either gender, single persons, and separated or widowed persons, they refuse to rent to unmarried persons who plan to live together.

*697 Both the State of Alaska and the City of Anchorage have adopted laws…