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Sidestepping the merits of a closely watched dispute over housing rights, the 9th U.S. Circuit Court of Appeals has ended — temporarily, at least — a controversy over whether religious landlords can discriminate in the rental market. But in its ruling Friday, according to at least two judges of the court, the 9th Circuit severely restricted the ability of plaintiffs to challenge laws they believe violate their constitutional rights. The panel held that Christian landlords Kevin Thomas and Joyce Baker did not have standing to bring a suit challenging Anchorage civil rights laws outlawing discrimination based on marital status, because authorities have never taken action against them for admittedly violating the law. “This is a case in search of a controversy,” Judge M. Margaret McKeown wrote for the 10-1 majority. “Simply put, at this stage the dispute is purely hypothetical and the injury is speculative. Whether viewed through the lens of standing or ripeness, resolution of the First Amendment issues is premature.” Judge Andrew Kleinfeld was the lone dissenter. Thomas and Baker each own rental properties in Alaska. Though neither landlord was facing a discrimination claim, they nevertheless sued the state to prevent enforcement of fair housing laws, saying renting to unmarried couples would make them complicit in Christian sin. The case was closely watched by housing rights groups and the gay community, who saw in the original three-judge decision overturning the Anchorage statutes an invitation to discriminate. Twenty-four different organizations and entities filed or joined in amicus curiae briefs. The decision on standing and ripeness also means the merits of the case will not likely be appealed to the U.S. Supreme Court, where many had expected the case to go. Clyde Wadsworth, special counsel at San Francisco’s Heller Ehrman White & McAuliffe, said he was happy enough with the decision. “Ultimately, I would have preferred a ruling on the merits upholding that laws like this don’t violate [the] free exercise [of religion],” said Wadsworth, who wrote an amicus brief on behalf of the Lambda Legal Defense and Education Fund. But the decision could spark controversy. Judge Diarmuid O’Scannlain penned the original opinion, a ruling in the landlords’ favor that was essentially overturned Friday. He wrote a concurrence for his own reversal, saying he was pleased the court had adopted a new rule for ripeness and standing. “The new rule … boils down to this: potential litigants aggrieved by existing law … 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 religion,” O’Scannlain wrote. In footnotes, McKeown disputes O’Scannlain’s theory. “Our decision neither shuts the door to pre-enforcement challenges … nor does it establish a new approach to justicability.” Kleinfeld agreed the majority had adopted a new rule, but dissented to say that the decision flouts Supreme Court precedent. “We cannot and should not shut the courthouse door to these litigants,” Kleinfeld wrote. “The only factor that cuts against standing is that the plaintiffs have not gotten caught. That is not much of a factor in a First Amendment case.” McKeown cited several cases in which the 9th Circuit held “that neither the mere existence of a prospective statute nor a generalized threat of prosecution satisfies the “case or controversy” requirement. “Prudential considerations of ripeness are discretionary,” she added, “and here we exercise our discretion to decline jurisdiction over a dispute that is too remote.”

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