Thomas

dissenting:

I respectfully dissent.

I agree with Judge O’Scannlain that under the law as it stood until today, plaintiffs had standing and their case was ripe. 1 They still do, under controlling Supreme Court law on standing.

We cannot and should riot shut the courthouse door to these litigants. The majority takes the position that there is no genuine controversy, because plaintiffs have no genuine and substantial risk that the law they challenge will be enforced against them. That proposition is unsupported by the record.

The majority’s discussion about the history of enforcement does not support its conclusion. The history matters when a law is in desuetude, but no one claims that this fairly new law is like some nineteenth century ordinance never enforced in living memory. This case involves a fairly recent law that protects rental rights for unmarried couples. What is in desuetude is not the law, but the old expression “living in sin,” that used to voice a social consensus condemning what the new law establishes as a right. The recent Alaska Supreme Court decisions in closely analogous cases establish, were there any doubt, that the law is actively enforced.

The…

Opinion by Judge McKEOWN; Concurrence by Judge O’SCANNLAIN; Dissent by Judge KLEINFELD

This is a case in search of a controversy. Several landlords mount a First Amendment free exercise of religion and free speech challenge to the Alaska housing laws prohibiting discrimination on the basis of marital status. We do not address this constitutional question, however, because this pre-enforcement challenge presents a threshold issue of justiciability. No prospective tenant has ever complained to the landlords, let alone filed a complaint against them. Neither the Alaska State Commission for Human Rights nor the Anchorage Equal Rights Commission has ever initiated an investigation into the landlords’ rental practices or commenced a civil enforcement action or criminal prosecution under the challenged laws. No violation of the laws is on the horizon and no enforcement action or prosecution is either threatened or imminent. Indeed, the principal enforcement agencies had never even heard of these landlords before they filed this action. Simply put, at this stage the dispute is purely hypothetical and the injury is speculative. Whether viewed through the lens of standing or ripeness,…

concurring:

Today, the court, sitting en banc, commendably reshapes this circuit’s overly permissive jurisprudence of ripeness and standing by tightening the requirements for bringing lawsuits. These requirements are born of Article III of the Constitution; the same provision that grants judges their authority constrains its use. Standing and ripeness doctrines ensure that an adequate factual and legal context will sharpen and cabin judicial decision-making. They preserve the separation of powers and safeguard democracy by constraining the authority of the unelected judiciary *1143 to pass judgment on the acts of legislatures. Thus, I am delighted to concur in the court’s admirable retreat to more appropriate restraint, but write separately to make explicit what the court fails to elaborate.

I

The new rule of ripeness and standing promulgated today boils down to this: potential litigants aggrieved by existing law-in this case, a state statute and a municipal ordinance-will be virtually unable to bring pre-enforcement challenges in this circuit even in the most sensitive First Amendment context where the laws allegedly burden their freedom of speech and the free exercise of…