B
Of course, "[n]ot all burdens on religion are unconstitutional." Bowen v. Roy, 476 U.S. 693, 701 (1986). Even substantial burdens on religious exercise may be justified by a showing that a regulation's restrictions are necessary to the achievement of some compelling state interest. Whether a compelling governmental interest justifies Alaska's antimarital-status discrimination laws is the question to which we now turn.
The Supreme Court has provided some insight into the nature of the interests that are sufficiently "compelling" to survive strict Free Exercise Clause scrutiny. In Sherbert, for instance, the Court declared that, in order to restrict religious exercise, the State must advance "paramount interests." Sherbert, 374 U.S. at 406 (quoting Thomas v. Collins, 323 U.S. 516, 530 (1945). Likewise, in Yoder, the Court stated that it would defer only to "interests of the highest order." Yoder, 406 U.S. at 215. Most recently, the Court in Lukumi reaffirmed that "[t]he compelling interest standard that we apply once a law fails to meet the Smith requirements is not 'water[ed] . . . down' but 'really means what it says.' " Lukumi, 508 U.S. 520, 546 (quoting Smith, 494 U.S. at 888). Director Haley contends that the laws pass constitutional muster even under strict scrutiny because "Alaska has compelling interests in eradicating discrimination in housing on the basis of marital status." We disagree. Alaska's purported interest in preventing marital-status discrimination is simply not sufficiently "paramount" to satisfy strict scrutiny. See generally Swanner v. Anchorage Equal Rights Comm'n, 513 U.S. 979 (1994) (Thomas, J., dissenting from denial of certiorari).
Only twice has the Supreme Court recognized the prevention of discrimination as an interest compelling enough to justify restrictions on constitutional rights. In 1983, in Bob Jones University v. United States, 461 U.S. 574 (1983), the Court concluded that there is an "overriding interest" in eradicating racial discrimination. Id. at 604. A year later, in Roberts v. United States Jaycees, 468 U.S. 609 (1984), the Court acknowledged a compelling government interest in preventing discrimination based upon gender. See id. at 623. Although the Roberts Court was less than clear with respect to the precise considerations that led it to conclude that the elimination of gender discrimination constituted a compelling government interest, the Court in Bob Jones was more explicit: It based its decision upon what it deemed a "firm national policy" against race discrimination. Bob Jones, 461 U.S. at 593. For support, the Court adverted to examples of anti-race-discrimination measures taken from all three branches of the federal government: In the judiciary, Brown v. Board of Education, 347 U.S. 483 (1954), and Cooper v. Aaron, 358 U.S. 1 (1958); in Congress, the Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241 (codified as amended at 42 U.S.C. §§ 1971, 1975a-1975d, 2000a-2000h6), the Civil Rights Act of 1968, Pub. L. No. 90-284, 82 Stat. 73 (codified as amended in scattered sections 18 U.S.C., 25 U.S.C., 28 U.S.C., and 42 U.S.C.), and the Voting Rights Act of 1965, Pub. L. No. 89-110, 79 Stat. 437 (codified as amended at 42 U.S.C. §§ 1971, 1973 to 1973gg-10); and in the executive branch, orders issued by Presidents Truman, Eisenhower, and Kennedy prohibiting racial discrimination in various sectors. Of course, had it opted to do so, the Bob Jones Court might easily have further elaborated, and cited as support for its "firm national policy" the Civil War and the Thirteenth, Fourteenth, and Fifteenth Amendments that followed on its heels. The post-Reconstruction history of this country leaves little room for argument as to the existence of a national commitment to the elimination of race discrimination.
It is beyond cavil that there is no similar "firm national policy" against marital-status discrimination. The Supreme Court has never accorded marital status any heightened scrutiny under the Equal Protection Clause, as it has both race, see, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995), and gender, see, e.g., United States v. Virginia, 518 U.S. 515 (1996). Nor has any court of appeals, for that matter. See Smith v. Shalala, 5 F.3d 235, 239 (7th Cir. 1993) ("Because [a] classification based on marital status does not involve a suspect class and does not impact a fundamental interest, we must examine it under the rational basis test."); cf. United States v. Omoruyi, 7 F.3d 880, 881 (9th Cir. 1993) ("Peremptory challenges based on marital status do not violate [Batson v. Kentucky, 476 U.S. 79 1986)]."). And although equal protection analysis may not be determinative of the compelling interest inquiry, it assuredly is not, as Director Haley claims, "irrelevant." The Equal Protection Clause is concerned more specifically than any other constitutional provision with the issue of discrimination; it is therefore emi nently sensible to look to equal protection precedent as a proxy for the importance that attaches to the eradication of particular forms of discrimination. The fact that courts have not given unmarried couples any special consideration under the Equal Protection Clause is potent circumstantial evidence that society lacks a compelling governmental interest in the eradication of discrimination based upon marital status.
The Supreme Court's decision in Moore v. City of East Cleveland, 431 U.S. 494 (1977), is also not insignificant in determining whether a "firm national policy" against maritalstatus discrimination exists. There, the Court considered a substantive due process challenge to a local housing ordinance that limited dwelling occupancy to single families. The ordinance defined "family" in such a manner as to exclude from its scope a woman living with her son and two grandsons. See id. at 496 & n.2. The City argued to the Court that its earlier decision in Belle Terre v. Boraas, 416 U.S. 1 (1974), required it to uphold the ordinance. In Belle Terre, the Court had upheld against constitutional challenge another city's single-family-dwelling ordinance. The Moore Court, however, easily distinguished its earlier holding:
[O]ne overriding factor sets this case apart from Belle Terre. The ordinance there affected only unre lated individuals. It expressly allowed all who were related by "blood, adoption, or marriage" to live together, and in sustaining the ordinance we were careful to note that it promoted "family needs" and "family values."
Id. at 498. The Supreme Court has, therefore, for all intents and purposes, recognized a substantive due process right to live with relatives (such as spouses), but has expressly declined to extend such a right to "unrelated" individuals (such as unmarried cohabitants). Hence, far from articulating any constitutional policy against marital-status discrimination, the Supreme Court has itself approved regulations containing distinctions between married and unmarried couples, bestowing upon the former rights it withholds from the latter.15
Nor do congressional enactments evince any discernible legislative policy against marital-status discrimination. Significantly, the federal statute most analogous to the Alaska laws here at issue, the Fair Housing Act, 42 U.S.C. § 3601-3631, makes no mention whatsoever of "marital status" among its catalogue of six protected categories. See, e.g., id. § 3604(a) ("t shall be unlawful . . . [t]o refuse to sell or rent . . . a dwelling to any person because of race, color, religion, sex, familial status, or national origin." 16). Indeed, the overwhelming majority of federal civil rights laws are silent on the issue of marital-status discrimination. See, e.g., 42 U.S.C. § 2000a(a) (prohibiting discrimination in places of public accommodation "on the ground of race, color, religion, or national origin"); 42 U.S.C. § 2000d (prohibiting discrimination in any federally funded program "on the ground of race, color, or national origin"); 42 U.S.C. § 2000e-2(a) (prohibiting discrimination in employment "because of [an] individual's race, color, religion, sex, or national origin"). Similarly, whereas the Sentencing Guidelines authorize penalty enhancements for defendants who select their victims based upon "race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation," they make no mention of marital status. U.S.S.G. § 3A1.1(a). To be sure, there are a handful of federal statutes that do forbid marital-status discrimination. See 5 U.S.C. § 2301(b)(2); 15 U.S.C. § 1691(a); 20 U.S.C. § 1071(a)(2). A "handful," however, do not a "firm national policy" make.
Alaska law is likewise unavailing. As an initial matter, we think it strange to reference Alaska law (in isolation) as evidence of a compelling government interest in eradicating marital status discrimination. Alaska law certainly cannot alone suffice to demonstrate a "firm national policy." Nor, would it seem, can a single state's law evince -- under any standard -- a compelling government interest for federal constitutional purposes. The fact that Alaska has granted its citizens a "civil right" to "obtain . . . housing accommodations . . . without discrimination because of . . . marital status," see Alaska Stat. § 18.80.210, is irrelevant. Surely there are other states that are less enthusiastic. Under Director Haley's reasoning, presumably Alaska would possess a compelling interest in eradicating marital-status discrimination but, say, Alabama, would not. Under such a state-specific approach to identifying compelling interests, all fields of federal constitutional law in which courts employ strict scrutiny -- including free speech, free exercise, equal protection, and substantive due process -- would be balkanized beyond the point of recognition. States could unilaterally "opt out" of federal constitutional rules (the Free Exercise Clause among them) simply by adopting particular legislative policies. Coherent constitutional doctrines would no longer exist; rather, we would be subjected to fifty individual sub-constitutions, each according the government a slightly different degree of authority to infringe constitutional rights.
Even were we to assume that state law could alone suffice to create a compelling governmental interest in preventing discrimination against unmarried couples, Alaska's would not meet this constitutional test. For example, the very laws under review contain exceptions for "married-only" housing, see Alaska Stat. § 18.80.240, and for space rented in the home of the landlord, see Anchorage Mun. Code § 5.20.020. Moreover, as Justice Moore observed in his dissent in Swanner, Alaska law expressly discriminates against unmarried couples in a number of contexts: [T]he government itself discriminates based on mari tal status in numerous regards, and there is no sug gestion that this practice should be reexamined. 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 commu nication 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).
Swanner, 874 P.2d at 288-89. Alaska's "underenforcement" of its purported interest in eradicating marital-status discrimination is critical, because "t is established in . . . strict scrutiny jurisprudence that 'a law cannot be regarded as protecting an interest "of the highest order" . . . when it leaves appreciable damage to that supposedly vital interest unprohibited.' " Lukumi, 508 U.S. at 547 (quoting Florida Star v. B.J.F., 491 U.S. 524, 541-42 (1989) (Scalia, J. concurring in part and concurring in judgment)).
There is simply no support from any quarter for recognizing a compelling government interest in eradicating marital-status discrimination that would excuse what would otherwise be a violation of the Free Exercise Clause. Not all discrimination is created equal.
