Christian Landlords: Sinners Need Not Apply

Block, Walter E.; Whitehead, Roy

doi:10.1007/978-3-030-28360-5_3

Walter E. Block⁵ &
Roy Whitehead⁶

Part of the book series: Palgrave Studies in Classical Liberalism ((PASTCL))

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1 Citations

Abstract

As practicing Christians, Kevin Thomas and Joyce Baker refuse to rent their residential properties in Anchorage, Alaska, to unmarried couples. Their refusal is based on the belief that facilitating extramarital sex is sinful. This tenet of their Christian faith, however, places them in direct conflict with state and city laws that prohibit discrimination on the basis of marital status.

This chapter examines the case of Thomas v. Anchorage Equal Rights Commission in order to explain and evaluate Alaska’s marital-status antidiscrimination laws. Through the lens of this case, we examine the issues of ripeness; justiciability; the Free Exercise Clause; the hybrid-rights that arise when the Free Exercise Clause is coupled with the Taking Clause of the Fifth Amendment and the Free Speech Clause of the First Amendment; whether there exists a compelling governmental interest that justifies enforcing marital-status antidiscrimination laws; whether there exists a firm national policy against marital-status discrimination; and, finally, whether excluding Christian landlords (or those of any other religion) from enforcement of marital-status discrimination laws violates the Establishment Clause by endorsing the Christian religion.

We conclude that the Ninth Circuit Court of Appeals, which rendered two decisions in this case, got it essentially right the first time when the Court upheld Thomas and Baker’s right to refuse to rent to unmarried couples for religious reasons. But we marshal further arguments why marital-status antidiscrimination laws are fundamentally unjust. These laws paternalistically substitute the judgment of secular state authorities for the judgment of private property owners, forcing Christian landlords to become as permissive and indiscriminate as their most liberal and irreligious counterparts. Against this, we propose a superior (some may say radical) alternative, one that respects the goal of eliminating discrimination, but does so without resorting to bureaucratic thought police and unending government interference with religious practice. Our solution to the issue of marital status and other discrimination is based on the libertarian natural law of property rights and the right of free association. We also offer an economic analysis of discrimination demonstrating that the ill effects of this practice on minority groups will be greatly attenuated in the fully libertarian society.

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Notes

1.
§ 18.80.240. §18.80.270 makes violation of that prohibition on discrimination a misdemeanor punishable by fine or imprisonment. Thomas and Baker could also face punishment under Anchorage Ordinance, Section 5.30.070, which makes it a misdemeanor to “willfully resist the Equal Rights Commission or its representatives.” Our analysis can safely overlook the Anchorage Ordinance, however, because it is virtually identical to the Alaskan state statute in every material respect.
2.
See Foreman v. Anchorage Equal Rights Commission, 779 P. 2d 1199, 1202 (Alaska 1989).
3.
Thomas and Baker v. Anchorage Equal Rights Commission, No. 95-0275-HRH (D. Alaska 1996).
4.
Id.
5.
Thomas v. Anchorage Equal Rights Comm’n, 165 F.3d 692 (9th Cir. 1999).
6.
Although the parties brought numerous appeals, in both state and federal courts, we analyze the first decision by the Ninth Circuit Court of Appeals, cited at id. We restrict our analysis to this decision because it offers the most thorough and nuanced consideration of the merits of the case. Readers interested in the case’s subsequent history, however, will find that the Court of Appeals later withdrew its initial decision and granted a rehearing en banc. Thomas v. Anchorage Equal Rights Comm’n, 192 F.3d 1208 (9th Cir. 1999). Upon rehearing, the Court of Appeals dismissed the landlords’ complaint on the grounds that it was not ripe for adjudication, a decision the Supreme Court of the United States declined to review. Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d 1134 (9th Cir. 2000) (en banc), cert. denied, 531 U.S. 1143 (2001). The landlords subsequently litigated their claim in Alaskan state courts, which ultimately ruled against them, with the Supreme Court of the United States again declining review. Thomas v. Anchorage Equal Rights Comm’n, 102 P.3d 937 (Alaska 2004), cert. denied, Bubna v. Anchorage Equal Rights Comm’n, NEED CITE.
7.
Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d 1134 (9th Cir. 2000).
8.
Lake Carriers Association v. MacMullen, 406 U.S. 498, 506 (1972).
9.
Portland v. County of Santa Clara, 995 F. 2d 898, 902–03 (9th Cir. 1993).
10.
Ohio Civil Rights Commission v. Dayton Christian Schools, Inc., 477 U.S. 619, 625 & n.1 (1986).
11.
See San Diego County Gun Rights Commission v. Reno, 98 F. 3d 1121, 1126–27 (9th Cir. 1996), aff’d, 926 F.Supp. 14155 (S.D. Cal. 1995).
12.
On rehearing, however, the Ninth Circuit Court of Appeals opened its en banc opinion by calling Thomas and Baker’s complaint a “case in search of a controversy” and describing the dispute as “purely hypothetical” and the claimed injury “speculative.” Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1134 (9th Cir. 2000). The dissent ably contests that characterization.
13.
See Swanner v. Anchorage Civil Rights Commission, 874 P. 2d 274 (Alaska 1994), cert denied, 513 U.S. 979 (1994).
14.
Hotel, Motel, Restaurant, Construction Camp Employees & Bartenders Union Local 879 v. Thomas, 551 P. 2d 942, 945 (Alaska 1976).
15.
San Francisco County Democratic Central Committee v. Eu, 826 F. 2d 814, 821–22 (9th Cir. 1987), aff’d, 489 U.S. 214.
16.
See, for example, Swanner, 874 P.2d 274. At the very same time that Thomas and Baker’s litigation was underway in the Ninth Circuit, the Alaska Commission on Human Rights was engaged in antimarital-status discrimination proceedings against Alaska Pacific University. See ASCHR No. C-96-010 (complaint served February 3, 1997).
17.
Babbit v. United Farm Workers Nat’l Union, 442 U.S. 289, 302–03 (1979), vacated, 442 U.S. 936 (1979).
18.
494 U.S. 872 (1990), rehig. denied, 496 U.S. 913 (1990).
19.
See id. at 879 (quoting United States v. Lee, 455 U.S. 252, 263 & n.3 (1982)).
20.
See, for example, Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 531 (1993).
21.
508 U.S. 520 (1993).
22.
Id. at 545.
23.
Id.
24.
Id. at 543.
25.
Thomas v. Anchorage Equal Rights Comm’n, 165 F.3d 692, 702 (9th Cir. 1999).
26.
Employment Division v. Smith, 494 U.S. 872,881 (1990).
27.
ALASKA STAT. § 18.80.240 (1).
28.
§ 18.80 240 (3).
29.
§ 18.80. 240 (1).
30.
See Thomas, 165 F.3d at 703.
31.
Id.
32.
Id.
33.
Swanson v. Guthrie Indep. Sch. Dist. No. 1, 135 F.3d 694, 700 (10th Cir. 1998).
34.
Id.
35.
Webster’s Third New International Dictionary 449 (1986).
36.
Kuhlmann v. Wilson, 477 U.S. 436, 454 (1986); Coalition for Economic Equality v. Wilson, 110 F.3d 1431,1338 (9th Cir. 1997), cert. denied 118 S. Ct. 397 (1997).
37.
Thomas, 165 F.3d at 705.
38.
Nollan v. California Costal Comm’n, 483 U.S. 825, 831 (1987).
39.
The Takings Clause provides, “…nor shall private property be taken for public use, without just compensation.”
40.
See Thomas, 165 F.3d at 707.
41.
Id. (citing Yee v. City of Escondido, 503 U.S. 519, 522–23 (1992)).
42.
Id. at 708 (citing Kaiser Aetna v. United States, 444 U.S. 164, 175 (1979)).
43.
Id. (citing Eastern Enterprises v. Apfel, 118 S. Ct. 2131, 2135 (1998)).
44.
Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 426 (1982).
45.
Id. at 426.
46.
See Thomas, 165 F.3d at ???
47.
Penn Central Transportation Company v. New York, 438 U.S. 104, 124 (1978).
48.
See Thomas, 165 F.3d at ???
49.
United States v. Edge Broadcasting Co., 509 U.S. 418, 426 (1993). The First Amendment provides, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….”
50.
U.S. CONST. amend I. Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio, 471 U.S. 626, 637 (1985).
51.
Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 66–67 (1983).
52.
Id. at 67.
53.
Id.
54.
Riley v. National Federation of the Blind, 487 U.S.781, 796 (1988). Commercial speech does not “retain its Commercial Character when it is inextricably intertwined with otherwise fully protected speech.” Id.
55.
See, for example, Lamb’s Chapel v. Center Morihes Union Free School District, 508 U.S. 384, 393–4 (1993).
56.
Thomas, 165 F.3d at 711 (citing Rosenberger v. Rector & Visitors of the Univ. of Virginia, 515 U.S. 819 (1995)).
57.
Hernandez v. Comm’r of Internal Revenue, 490 U.S. 680, 699 (1989), reh’g denied, Graham v. C.I.V., 492 U.S. 933 (1989).
58.
455 U.S. 252 (1982).
59.
471 U.S. 290 (1985).
60.
See United States v. Lee, 455 U.S. at 261.
61.
Id. at 260.
62.
471 U.S. at 305.
63.
471 U.S. at 306.
64.
See, for example, Attorney General v. Desilets, 636 N.E. 231, 233, 238 (Mass. 1994).
65.
See LAURENCE TRIBE, AMERICAN CONSTITUTIONAL LAW 1247 (2d ed. 1988).
66.
Graham v. Comm’r, 822 F. 2d 844, 851 (9th Cir. 1987).
67.
Braunfield v. Brown, 366 U.S. 599 (1961).
68.
Id. at 605.
69.
Hobbie v. Unemployment Appeals Comm’n of Florida, 480 U.S. 136, 141 (1987) (quoting Thomas v. Review Bd. of Indiana Employment Div., 450 U.S. 707, 717–18 (1981)).
70.
See, for example, Meyer v. State of Nebraska, 262 U.S. 390, 399 (1923).
71.
Id. at 399.
72.
Bowen v. Roy, 476 U.S. 693, 701 (1986).
73.
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546 (1993). “The compelling interest standard that we apply once a law fails to meet the Smith requirements is not watered down, but really means what it says.” Id. (quoting Employment Div. Dept. of Human Resources of Ore. v. Smith, 494 U.S. 484, 488 (1990)). “Courts will defer only to interests of the highest order.” Wisconsin v. Yoder, 406 U.S. 205, 215 (1972).
74.
461 U.S. 574 (1983).
75.
Id. at 604.
76.
648 U.S. 609 (1984).
77.
461 U.S. at 593.
78.
347 U.S. 483 (1954).
79.
Pul. L. No. 88-352, § 1 (codified as amended at 42 U.S.C. § 2000a (1999)).
80.
Pul L. No. 89-110, § 2 (codified as amended at 42 U.S.C. § 1973 (1994)).
81.
515 U.S. 200 (1995).
82.
518 U.S. 515 (1996).
83.
For that matter, see Smith v. Shalala, 5 F.3rd 235, 239 (7th Cir. 1993), cert. denied, 510 U.S 1198 (1994).
84.
Moore v. City of East Cleveland, 431 U.S. 494, 498 (1977).
85.
Id. at 498.
86.
42 U.S.C. §§ 3601–3631 make no mention whatsoever of “marital-status.”
87.
Pub.L. No. 105-220 (1998). The court said that other states are “less enthusiastic.”
88.
See ALASKA STAT. § 18.80.240 (containing exceptions for “married only” housing).
89.
Id.
90.
ALASKA STAT. § 23.30.215 (a).
91.
See Serradell v. Handford Accident and Indemnity Co., 843 P. 2d 639, 641 (Alaska 1992).
92.
Id. at 288–89.
93.
Florida Star v. B.J.F., 49 U.S. 524, 541–42 (1989).
94.
Thomas, 165 F.3d at ???
95.
See Hobbie v. Unemployment Appeals Comm’n of Florida, 480 U.S. 136, 144–45 (1987).
96.
403 U.S. 602 (1971), reh’q denied, 404 U.S. 876 (1971).
97.
Id. at 612–13.
98.
County of Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573, 592 (1989).
99.
See Lynch v. Donnelly, 465 U.S. 668, 688 (1994).
100.
Id. at 688.
101.
Sherbert v. Verner, 374 U.S. 398, 409 (1963).
102.
Murray, Charles, What It Means to be a Libertarian, New York: Broadway Books, 1997, p. 81.
103.
Rothbard, Murray N., “Isaiah Berlin on Negative Freedom,” in The Ethics of Liberty, New York: New York University Press, 1998 (1982), pp. 215–218; Selick, Karen, “Too Many ‘Rights’ Make a Wrong,” Canadian Lawyer, September 1991, p. 56.
104.
Why do we take this position? For two reasons. First, justice demands no less. Second, there is an economic way: the market can attain all of the legitimate goals of the advocates of this legislation. See below.
105.
On this see Epstein, Richard A., Forbidden Grounds: The Case Against Employment Discrimination Laws, Cambridge: Harvard University Press, 1992; Levin, Michael, Feminism and Freedom, New York: Transaction Books, 1987; Levin, Michael, Why Race Matters: Race Differences and What They Mean, New York: Praeger, 1997; Levin, Michael, 1996, “Why Race Matters: A Preview,” The Journal of Libertarian Studies, Vol. 12, No. 2, Fall, pp. 287–312; Selick, Karen, “The Ramp to Hell,” Canadian Lawyer, September 1995, p. 46; Selick, Karen, “Brave New Work: Fair New World,” Canadian Lawyer, March, 1995, p. 46; Block, Walter, “Discrimination: An Interdisciplinary Analysis,” The Journal of Business Ethics, Vol. 11, 1992, pp. 241–254; Block, Walter, “Compromising the Uncompromisable: Discrimination,” American Journal of Economics and Sociology, Vol 57, No. 2, April, 1998, pp. 223–237; Block, Walter, “Economic Intervention, Discrimination, and Unforeseen Consequences,” Discrimination, Affirmative Action and Equal Opportunity, Walter Block and Michael A. Walker, eds., Vancouver: The Fraser Institute, 1982, pp. 101–125.
106.
Sowell, Thomas, Race and Economics, New York: Longman, 1975; Sowell, Thomas, Ethnic America, New York: Basic Books, 1981; Sowell, Thomas, The Economics and Politics of Race: An International Perspective, New York, Morrow, 1983; Sowell, Thomas, Civil Rights: Rhetoric or Reality, New York: William Morrow, 1984; Sowell, Thomas, A Conflict of Visions: Ideological Origins of Political Struggles, New York: William Morrow, 1987; Sowell, Thomas, “Preferential Policies,” in Thinking About America: The United States in the 1990s, Annelise Anderson and Dennis L. Bark, eds., San Francisco: The Hoover Institution Press, 1988; Sowell, Thomas, Race and Culture: A World View, New York: Basic Books, 1994; Sowell, Thomas, The Vision of the Anointed, New York: Basic Books, 1995.
107.
See on this Morford, Mark, P.O., and Lenardon, Robert J., Classical Mythology, New York: David McKay, 1971, p. 327. (We owe this cite to our UCA English department colleague Wayne Stengel). To finish this story, the god Antaeus was finally killed by Hercules, who held him aloft away from the beneficial effects of his mother.
108.
Becker, Gary, The Economics of Discrimination, Chicago: The University of Chicago Press, 1957.
109.
We assume that Ws are not homogeneous in this regard, or that, if so, there are third or fourth communities which differ from the Ws.
110.
Hazlitt, Henry, Economics in One Lesson, Arlington House Publishers, New York, 1979.
111.
We are dealing here, and in the previous example, only with discriminatory tastes on the part of employers or merchants, not with that of employees, other customers, and so on. To bring in the latter cases would complicate the analysis without changing its underlying premises.
112.
More realistically, as in the previous case, there will be many subgroups defined by the differing intensity of their desire to avoid the Bs, or, even, a continuum in this regard.
113.
Smith, Adam, An Inquiry into the Nature and Causes of the Wealth of Nations, New York: Modern Library, 1776/1965.
114.
This entire analysis is predicated on the supposition that it costs no more to service a B than a W. But if the costs of doing business in a B neighborhood are higher than in a W one due, say, to higher crime rates, then this factor has to be incorporated. Again, such a factor might change the example quantitatively, but the underlying critique would remain unchanged.
115.
We must not forget the even greater success of Jews and Orientals, which casts doubt on all discrimination explanations. On this see Seligman, Daniel, “Of Japanese and Jews,” in A Question of Intelligence: the IQ Debate in America, New York: Citadel, Carol Press, 1994, pp. 118–135.
116.
On this see Rothbard, Murray N., For a New Liberty, Macmillan, New York, 1973.
117.
Levin, Michael, “Comparable Worth: The Feminist Road to Socialism,” Commentary, September 1984; Levin, Michael, Why Race Matters: Race Differences and What They Mean, New York: Praeger, 1997; Levin, Michael, 1996, “Why Race Matters: A Preview,” The Journal of Libertarian Studies, Vol. 12, No. 2, Fall, pp. 287–312; Seligman, op. cit., “Of Japanese and Jews”; Murray, Charles and Herrnstein, Richard J., The Bell Curve: Intelligence and Class Structure in American Life, New York: The Free Press, 1994; Jensen, Arthur R., “How Much Can We Boost IQ and Scholastic Achievement?” Harvard Educational Review, 39 (1969), No. 1, pp. 1–123; Jensen, Arthur R., Genetics and Education, New York: Harper and Row, 1972; Rushton, J. Philippe, “Brain size and cognitive ability: Correlations with age, sex, social class and race,” Psychonomic Bulletin and Review, 1996, 3 (1), pp. 21–36; Rushton, J. Philippe, and Osborne, R.T., 1995, “Genetic and environmental contributions to cranial capacity estimated in Black and White adolescents.” Intelligence, 20, pp. 1–13; Rushton, J. Philippe, “Reply to Wilerman on Mongoloid-Caucasoid Differences in Brain Size,” Intelligence, 15 (1991), pp. 365–367; Rushton, J. Philippe, “The reality of racial differences: A rejoinder with new evidence,” Personality and Individual Differences, 9, pp. 1035–1040.
118.
Williams, Walter, E., The State Against Blacks, New York, McGraw-Hill, 1982; see also Williams, Walter E., South Africa’s War Against Capitalism, New York: Praeger, 1989.
119.
For the argument that the so-called pay gap between males and females is due not to discrimination but to unequal productivity, mainly due, in turn, to marital and child rearing asymmetries, see Williams, Walter, “On Discrimination, Prejudice, Racial Income Differentials, and Affirmative Action,” Discrimination, Affirmative Action and Equal Opportunity, Walter Block and Michael Walker, eds., Vancouver: The Fraser Institute, 1982; Block, Walter, “Discrimination: An Interdisciplinary Analysis,” The Journal of Business Ethics, Vol. 11, 1992, pp. 241–254; Block, Walter and Williams, Walter E., “Male-Female Earnings Differentials: A Critical Reappraisal,” The Journal of Labor Research, Vol. II, No. 2, Fall 1981, pp. 385–388; Block, Walter, “Compromising the Uncompromisable: Discrimination,” American Journal of Economics and Sociology, Vol 57, No. 2, April, 1998, pp. 223–237; Block, Walter, “Economic Intervention, Discrimination, and Unforeseen Consequences,” Discrimination, Affirmative Action and Equal Opportunity, Walter Block and Michael A. Walker, eds., Vancouver: The Fraser Institute, 1982, pp. 101–125.
120.
See Price Waterhouse v. Hopkins, 104 L. Ed. 2d 268 (1989).
121.
This is itself another violation of the antidiscrimination laws that is virtually never enjoined.
122.
Charles Dickens, Oliver Twist, ch. 2: “‘If the law supposes that,’ said Mr. Bumble, ‘the law is an ass, an idiot.’”
123.
Because, as a place of public accommodation, the club’s action violates the Civil Rights Act of 1964. See 42 U.S.C., Sections 2000c-2000e-17. See also Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964), “Congress has power under the Commerce Clause to regulate places of public accommodation.”
124.
Murray, Charles, What It Means to be a Libertarian, pp. 81–82 points to another idiosyncracy: “People are free to call other people ‘racist’ or ‘sexist’ on the slightest pretext. But when it comes to anything else, being judgmental is bad.” Certainly, to publicly call a black, or a Jew, or a woman by a racial or sexual epithet would be a matter for the constable, whereas name calling in the opposite direction would call forth no such response from that quarter. But this is no less than a direct threat to the concept of equal rights for all.
125.
These are enterprises run by the Black Muslim organization.
126.
Ditto, op cit.
127.
Hayek, Friedrich A., The Constitution of Liberty, Henry Regnery Company, Chicago, 1960, pp. 397–411.
128.
Yardley, Jonathan, “Use the right word for ‘the Times,’” The Washington Post, February 1, 1999, p. 2, col. 1; Dooling, Richard, “What a Niggling Offense! Oops, We Mean … “ Wall Street Journal, January 29, 1999.
129.
The official was later rehired by the municipality, but that is another matter.

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Loyola University, CARROLLTON, LA, USA
Walter E. Block
University of Central Arkansas, Conway, AR, USA
Roy Whitehead

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Block, W.E., Whitehead, R. (2019). Christian Landlords: Sinners Need Not Apply. In: Philosophy of Law. Palgrave Studies in Classical Liberalism. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-28360-5_3

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