Community House, Inc. v. City of Boise

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

COMMUNITY HOUSE, INC.; MARLENE 

K. SMITH; GREG A. LUTHER; JAY D.

BANTA,

Plaintiffs-Appellants, No. 05-36195

v. D.C. No.

CITY OF BOISE, IDAHO; DAVID H. CV-05-00283-BLW

BIETER, Mayor; BOISE CITY ORDER

COUNCIL; MARYANN JORDAN;

ELAINE CLEGG; VERNON  AMENDING

OPINION AND

BISTERFELDT; DAVID EBERLE; DENYING PANEL

JEROME MAPP; ALAN SHEALY, Boise AND EN BANC

City Council Members; BRUCE REHEARING AND

CHATTERTON, Director, Planning AMENDED

and Development Services; JIM OPINION

BIRDSALL, Manager, Housing and

Community Development,

Defendants-Appellees.



Appeal from the United States District Court

for the District of Idaho

B. Lynn Winmill, District Judge, Presiding

Argued and Submitted

June 7, 2006—Seattle, Washington

Filed November 9, 2006

Amended June 8, 2007

Before: David R. Thompson, A. Wallace Tashima, and

Consuelo M. Callahan, Circuit Judges.

Opinion by Judge Thompson;

Partial Concurrence and Partial Dissent by Judge Callahan

6973

COMMUNITY HOUSE v. CITY OF BOISE 6977

COUNSEL

Howard A. Belodoff, Boise, Idaho, for the plaintiffs-

appellants.

6978 COMMUNITY HOUSE v. CITY OF BOISE

Phillip J. Collaer, Boise, Idaho, for the defendants-appellees.

Brent D. Sokol, Los Angeles, California, for amici curiae

Anti-Defamation League and Americans United for Separa-

tion of Church and State.

ORDER

The Opinion in this case was filed November 9, 2006, and

published at 468 F.3d 1118 (9th Cir. 2006). A timely petition

for panel rehearing and for rehearing en banc was filed.

Footnote 2 of the Opinion, appearing at 468 F.3d 1123, is

deleted. A substituted footnote 2 is inserted in its place, which

substituted footnote reads as follows:

2. Although we applied the FHA to a homeless

shelter in Turning Point, Inc. v. City of Caldwell, 74

F.3d 941, 942 (9th Cir. 1996), the question of

whether the FHA generally applies to homeless shel-

ters was not at issue because the parties did not dis-

pute that the FHA applied. We have never squarely

addressed the issue of whether all temporary shelters

fit within the Act’s definition of “dwelling,” see 42

U.S.C. § 3602(b); nevertheless, we decline to do so

here. While the lease states that the Community

House facility is to be used as an “emergency home-

less shelter,” the facility provides more than transient

overnight housing. The district court specifically

found that the facility generates up to $125,000 in

rent per year from forty-nine transitional housing

units in which the tenants reside for up to a year and

a half. We therefore have little trouble concluding

that at least part of the facility “is occupied as, or

designed or intended for occupancy as, a residence

by one or more families,” and thus qualifies as a

“dwelling” under section 3602(b).

COMMUNITY HOUSE v. CITY OF BOISE 6979

Moreover, at least in the handicap discrimination

context, the regulations interpreting the coverage of

the FHA specifically contemplate that “residences”

within homeless shelters qualify as “dwellings.” The

regulations provide that a “dwelling unit” may

include “other types of dwellings in which sleeping

accommodations are provided but toileting or cook-

ing facilities are shared by occupants of more than

one room or portion of the dwelling, rooms in which

people sleep.” 24 C.F.R. § 100.201. Examples of

these other types of dwelling units “include dormi-

tory rooms and sleeping accommodations in shelters

intended for occupancy as a residence for homeless

persons.” Id. (emphasis added).

With regard to the petition for panel rehearing and for

rehearing en banc, Judges Thompson and Tashima voted to

deny the petition for panel rehearing and recommended denial

of the petition for rehearing en banc. Judge Callahan voted to

grant the petition for panel rehearing and to grant the petition

for rehearing en banc.

The full court was advised of the petition for rehearing en

banc and no judge requested a vote on whether to rehear the

matter en banc. See Fed. R. App. P. 35.

The petition for panel rehearing and for rehearing en banc

is DENIED. No further petitions for panel or en banc rehear-

ing will be entertained.

OPINION

THOMPSON, Senior Circuit Judge:

The plaintiffs-appellants Community House, Inc. (“CHI”),

Marlene K. Smith, Greg A. Luther, and Jay D. Banta (collec-

6980 COMMUNITY HOUSE v. CITY OF BOISE

tively, “plaintiffs”) appeal the district court’s partial denial of

their motion for a preliminary injunction against the

defendants-appellees City of Boise, Idaho, its mayor, its city

council members, and two of its employees.

The City of Boise owned a homeless shelter, Community

House, which was managed by CHI and provided housing to

men, women, and families. In 2004, the City assumed man-

agement of Community House and then leased it to the Boise

Rescue Mission Ministries (“BRM”), a Christian non-profit

organization. The women and families were removed from

Community House, and the BRM now provides shelter there

only to homeless men. The BRM also includes a religious

component in the services it provides.

The district court declined to order reinstatement of resi-

dents that had been removed from Community House, but

enjoined the practice of requiring residents to attend worship

services in order to receive other services. The court did not

preclude the use of Community House by the BRM for

voluntarily-attended religious programs.

The plaintiffs assert that the district court abused its discre-

tion by denying a preliminary injunction that (1) would have

reinstated Community House residents excluded by the men-

only policy, and (2) would have voided the City’s lease with

the BRM. The plaintiffs argue that the men-only policy vio-

lates the Fair Housing Act, and that the lease with the BRM

violates the Idaho Constitution and the Establishment Clause

of the United States Constitution.

We have jurisdiction under 28 U.S.C. § 1292(a)(1). With

regard to the plaintiffs’ Fair Housing Act claims based on sex

and familial discrimination, we reverse the district court’s

denial of a preliminary injunction that would have required

reinstatement of all former residents. We conclude that the

district court erred in applying the test of McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802-04 (1973), because the

COMMUNITY HOUSE v. CITY OF BOISE 6981

City’s men-only policy is facially discriminatory. See Ban-

gerter v. Orem City Corp., 46 F.3d 1491, 1501 n.16 (10th Cir.

1995).

With regard to the plaintiffs’ Establishment Clause claim,

we reverse the district court’s denial of a broader preliminary

injunction. We conclude that the district court abused its dis-

cretion by determining that only a limited injunction was nec-

essary to avoid an Establishment Clause violation. A broader

preliminary injunction is required.

With regard to the plaintiffs’ Idaho Constitution claim,

which they have raised for the first time in this appeal, for the

reasons hereafter set forth we exercise our discretion and

decline to consider it.

I. BACKGROUND

CHI is a non-profit corporation that provides housing ser-

vices to homeless and low income persons. Beginning in

1994, CHI and the City worked together to build a homeless

shelter known as Community House. Community House con-

tained both a homeless shelter and a low income housing unit.

The homeless shelter could hold, in separate dormitories,

sixty-six men, thirteen women, and ten families. The low

income, or “transitional,” housing contained ten family units

and thirty-nine single-resident apartments. Community House

could accommodate the disabled, and about seventy-five per-

cent of its residents were disabled.

In 2004, following a dispute with CHI, the City took over

operation of Community House. The City then initiated a

Request for Proposal bid process for the operation of Commu-

nity House, and ultimately chose the bid of the BRM. The

City leased Community House to the BRM on September 2,

2005.

The BRM is a Christian non-profit organization that has

served the homeless population of Boise, Idaho for almost

6982 COMMUNITY HOUSE v. CITY OF BOISE

fifty years, most recently at four facilities in both Boise and

Nampa, Idaho. The BRM’s Boise facilities include a homeless

shelter for single men known as the Boise Rescue Mission,

and a shelter for women and children known as the City Light

Home.

The BRM’s winning bid proposal contained a plan to move

homeless men from the Boise Rescue Mission to the Commu-

nity House facility, and then turn the Boise Rescue Mission

into a shelter for homeless women and children. The BRM’s

policy is to segregate men and women into different facilities,

and to segregate homeless singles from homeless families. It

believes that the difficulties of serving the homeless popula-

tion “are exacerbated in a mixed gender shelter environment.”

The chief goal of the BRM is to “help people at their physi-

cal and spiritual points of need” by providing, among other

assistance, “Christian teaching.” Before dinner, the BRM

offers a sixty-minute Christian chapel service. The service

consists of singing, scripture reading, prayer, testimonies, and

preaching.

In June of 2005, before its lease to the BRM commenced,

the City told staff members at Community House not to

accept any new residents. In August of 2005, in anticipation

of the September 2005 transition to the BRM, the City

informed residents of Community House that they needed to

move. This move caused significant hardship for some resi-

dents, most notably women, families, and the physically dis-

abled. There was already a shortage of housing in the area,

and these persons, for the most part, had to move into much

less desirable housing than Community House.

The plaintiffs filed this action under the Fair Housing Act1

1

Under the Fair Housing Act, it is unlawful to “make unavailable . . .

a dwelling to any person because of race, color, religion, sex, familial sta-

tus, or national origin.” 42 U.S.C. § 3604(a). It is also unlawful to “make

unavailable . . . a dwelling . . . because of a handicap.” 42 U.S.C.

§ 3604(f)(1).

COMMUNITY HOUSE v. CITY OF BOISE 6983

and other laws. The plaintiffs sought a preliminary injunction

to prevent the removal of residents from Community House,

to reinstate former residents, and to prevent the sale or lease

of Community House during the pendency of this action. On

October 28, 2005, the district court granted the plaintiffs’

motion in part, enjoining the City from relocating any former

resident of Community House to housing that is near the resi-

dence of a registered sex offender. The district court also

enjoined the City from participating in a lease with the BRM

if the BRM continued to require attendance at religious meet-

ings as a condition of receiving services. Neither party has

challenged these orders.

The district court denied the plaintiffs’ request for an

injunction requiring that former residents of Community

House excluded by the men-only policy be allowed to return.

The court determined that the plaintiffs had not raised serious

questions that the City was discriminating against women,

families, or the disabled under the Fair Housing Act. The dis-

trict court further denied the plaintiffs’ request for a broader

injunction regarding the BRM’s religious activities at Com-

munity House, determining that the court’s more limited

injunction removed any Establishment Clause violation. This

appeal followed.

II. STANDARD OF REVIEW

Our review of a district court’s decision regarding a prelim-

inary injunction is “limited and deferential.” Sw. Voter Regis-

tration Educ. Project v. Shelley, 344 F.3d 914, 918 (9th Cir.

2003) (en banc). In general, we review a denial of a prelimi-

nary injunction for abuse of discretion. See id.

The district court “necessarily abuses its discretion when it

bases its decision on an erroneous legal standard or on clearly

erroneous findings of fact.” Rucker v. Davis, 237 F.3d 1113,

1118 (9th Cir. 2001) (en banc), rev’d on other grounds, Dep’t

of Hous. & Urban Dev. v. Rucker, 535 U.S. 125 (2002). When

6984 COMMUNITY HOUSE v. CITY OF BOISE

the district court is alleged to have relied on an erroneous

legal premise, we review the underlying issues of law de

novo. See Does 1-5 v. Chandler, 83 F.3d 1150, 1152 (9th Cir.

1996).

III. DISCUSSION

A. Requirements for a Preliminary Injunction

To obtain a preliminary injunction, the moving party must

show either (1) a likelihood of success on the merits and the

possibility of irreparable injury, or (2) the existence of serious

questions going to the merits and the balance of hardships tip-

ping in the moving party’s favor. See Warsoldier v. Wood-

ford, 418 F.3d 989, 993-94 (9th Cir. 2005). “These two

alternatives represent extremes of a single continuum, rather

than two separate tests.” Id. at 994 (citation omitted).

B. Fair Housing Act Claims

The plaintiffs argue that the district court abused its discre-

tion by denying the full preliminary injunction they sought.

They contend they have shown that serious questions exist on

the merits regarding whether the City, in its lease with the

BRM, is discriminating against women, families, and the dis-

abled at Community House in violation of the Fair Housing

Act.2

2

Although we applied the FHA to a homeless shelter in Turning Point,

Inc. v. City of Caldwell, 74 F.3d 941, 942 (9th Cir. 1996), the question of

whether the FHA generally applies to homeless shelters was not at issue

because the parties did not dispute that the FHA applied. We have never

squarely addressed the issue of whether all temporary shelters fit within

the Act’s definition of “dwelling,” see 42 U.S.C. § 3602(b); nevertheless,

we decline to do so here. While the lease states that the Community House

facility is to be used as an “emergency homeless shelter,” the facility pro-

vides more than transient overnight housing. The district court specifically

found that the facility generates up to $125,000 in rent per year from forty-

nine transitional housing units in which the tenants reside for up to a year

COMMUNITY HOUSE v. CITY OF BOISE 6985

It is undisputed that the balance of hardships tips in favor

of the plaintiffs who were excluded from Community House

due to the men-only policy. As to the Fair Housing Act

claims, therefore, the issue is whether the plaintiffs have

raised serious questions that the policies at Community

House, which the City authorizes, constitute gender, familial,

or disability discrimination in violation of the Fair Housing

Act.

1. Gender and Familial Discrimination

The plaintiffs assert that the district court erred in applying

the McDonnell Douglas test to their gender and familial dis-

crimination claims because the men-only policy at Commu-

nity House is facially discriminatory. We agree.

[1] A facially discriminatory policy is one which on its face

applies less favorably to a protected group.3 See Frank v.

and a half. We therefore have little trouble concluding that at least part of

the facility “is occupied as, or designed or intended for occupancy as, a

residence by one or more families,” and thus qualifies as a “dwelling”

under section 3602(b).

Moreover, at least in the handicap discrimination context, the regula-

tions interpreting the coverage of the FHA specifically contemplate that

“residences” within homeless shelters qualify as “dwellings.” The regula-

tions provide that a “dwelling unit” may include “other types of dwellings

in which sleeping accommodations are provided but toileting or cooking

facilities are shared by occupants of more than one room or portion of the

dwelling, rooms in which people sleep.” 24 C.F.R. § 100.201. Examples

of these other types of dwelling units “include dormitory rooms and sleep-

ing accommodations in shelters intended for occupancy as a residence for

homeless persons.” Id. (emphasis added).

3

In examining discrimination issues under the Fair Housing Act, we fre-

quently draw from employment discrimination analysis. See Gamble v.

City of Escondido, 104 F.3d 300, 304 (9th Cir. 1997) (“We apply Title VII

discrimination analysis in examining Fair Housing Act (‘FHA’) discrimi-

nation claims. ‘Most courts applying the FHA, as amended by the [Fair

Housing Act Amendments], have analogized it to Title VII of the Civil

6986 COMMUNITY HOUSE v. CITY OF BOISE

United Airlines, Inc., 216 F.3d 845, 854 (9th Cir. 2000); see

also Bangerter, 46 F.3d at 1500 (holding that an ordinance

that singled out the handicapped and applied different rules to

them was facially discriminatory). The men-only policy at

Community House is facially discriminatory because it

explicitly treats women and families different from men. See

Int’l Union, United Auto., Aerospace & Agric. Implement

Workers of Am. v. Johnson Controls, Inc., 499 U.S. 187, 197

(1991). City documents and policy endorse this discrimina-

tion.

While the lease between the City and the BRM provides

that the BRM shall operate “an emergency homeless shelter

with a capacity to serve not fewer than sixty-six (66) guests,”

City Ordinance No. 6404 provides that Community House be

operated as “a shelter for a minimum of 66, single, homeless,

men, ages 18 years or older.” (emphasis added). City Resolu-

tion No. 18765, approving the lease of Community House to

the BRM, specifically incorporates the restrictions of City

Ordinance No. 6404.

More importantly, regardless of the language of the City’s

lease with the BRM, the City does not dispute that the current

policy is to run Community House as a men-only shelter. The

district court found that “[i]t is undeniable . . . that the City

treated women differently than men” because “the men could

reapply to be readmitted [to Community House] by [the]

BRM, while the women were shut out by the men-only poli-

cy.”

[2] We hold, contrary to the district court, that the plain-

tiffs’ gender and familial discrimination claims are properly

Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., which prohibits discrimi-

nation in employment.’ ” (quoting Larkin v. Mich. Dep’t of Soc. Servs., 89

F.3d 285, 289 (6th Cir. 1996))); Pfaff v. U.S. Dep’t of Hous. & Urban

Dev., 88 F.3d 739, 745 n.1 (9th Cir. 1996) (“We may look for guidance

to employment discrimination cases.”).

COMMUNITY HOUSE v. CITY OF BOISE 6987

characterized as claims of facial discrimination and should be

analyzed in that framework. The McDonnell Douglas test is

inapplicable to Fair Housing Act challenges to a facially dis-

criminatory policy. See Bangerter, 46 F.3d at 1501 n.16

(“There is no need to probe for a potentially discriminatory

motive circumstantially, or to apply the burden-shifting

approach outlined in McDonnell Douglas . . . as the statute

discriminates on its face by allowing conditions to be imposed

on group housing for the handicapped which would not be

permitted for non-handicapped group housing.”); Reidt v.

County of Trempealeau, 975 F.2d 1336, 1341 (7th Cir. 1992)

(“The McDonnell Douglas procedure is inapt in a situation

involving a facially discriminatory policy . . . .”). Instead, the

Supreme Court’s decision in Johnson Controls, 499 U.S. at

200-01, provides the appropriate approach in facial discrimi-

nation cases such as this.

In Johnson Controls, the Supreme Court held that an

employer’s policy barring all women, except those whose

infertility was medically documented, from jobs involving

lead exposure constituted sex discrimination forbidden under

Title VII. See id. at 211. The Supreme Court held that the

employer’s policy was facially discriminatory because it

explicitly discriminated against women on the basis of their

sex. See id. at 197. The Supreme Court noted that this conclu-

sion was not undermined by the ostensibly benign purpose of

the employer’s policy (protecting women’s unconceived off-

spring). See id. at 199 (“[T]he absence of a malevolent motive

does not convert a facially discriminatory policy into a neutral

policy with a discriminatory effect. Whether an employment

practice involves disparate treatment through explicit facial

discrimination does not depend on why the employer discrim-

inates but rather on the explicit terms of the discrimination.”).

Because the employer’s policy in Johnson Controls was

facially discriminatory, the Supreme Court concluded that the

appropriate test was whether sex was a “bona fide occupa-

tional qualification” (“BFOQ”). See id. at 200; see also 42

6988 COMMUNITY HOUSE v. CITY OF BOISE

U.S.C. § 2000e-2(e)(1) (Under Title VII, an employer may

discriminate on the basis of “religion, sex, or national origin

in those certain instances where religion, sex, or national ori-

gin is a bona fide occupational qualification [BFOQ] reason-

ably necessary to the normal operation of that particular

business or enterprise.”). The Supreme Court held that the

employer’s policy was not within the safety exceptions of the

BFOQ defense. See id. at 204-06. As a result, the Supreme

Court concluded that the employer’s facially discriminatory

policy violated Title VII. See id. at 211.

[3] With regard to facially discriminatory housing policies,

under the Johnson Controls approach, “a plaintiff makes out

a prima facie case of intentional discrimination under the

[Fair Housing Act] merely by showing that a protected group

has been subjected to explicitly differential — i.e. discrimina-

tory — treatment.” Bangerter, 46 F.3d at 1501. Here, the

plaintiffs have established a prima facie case of facial dis-

crimination under the Fair Housing Act because they have

explicitly been excluded from Community House based on

their gender and familial status.

[4] As in the employment context, however, this does not

mean that intentional differential treatment can never be justi-

fied under the Fair Housing Act. See id. at 1501 n.17 (“This

is not to say that a government can never justify any inten-

tional differential treatment of the handicapped [under the

Fair Housing Act]. Some differential treatment may be objec-

tively legitimate. In the Title VII context, for example,

facially discriminatory treatment is permitted if it represents

a . . . [ ]BFOQ[ ] that is reasonably necessary to an employ-

er’s operations.”); Children’s Alliance v. City of Bellevue, 950

F.Supp. 1491, 1497 (W.D. Wash. 1997) (“Even though the

language of the Ordinance singles out individuals for discrim-

inatory treatment based on their familial status and handicap,

a proper justification can legitimize the different treatment

and validate the Ordinance.”).

COMMUNITY HOUSE v. CITY OF BOISE 6989

[5] We have not previously adopted a standard for deter-

mining the propriety or acceptability of justifications for

facial discrimination under the Fair Housing Act.4 The circuits

that have addressed this issue are split. The Eighth Circuit

employs the same standards for analyzing a defendant’s ratio-

nales in challenges under the Fair Housing Act as it applies

to claims under the Equal Protection Clause. See Oxford

House-C v. City of St. Louis, 77 F.3d 249, 252 (8th Cir. 1996)

(applying rational basis review to a defendant’s proffered jus-

tifications for an ordinance that facially discriminated against

disabled persons); Familystyle of St. Paul v. City of St. Paul,

923 F.2d 91, 94 (8th Cir. 1991) (same). The Sixth and Tenth

Circuits employ a more searching method of analysis. To

allow the circumstance of facial discrimination under the

Sixth and Tenth Circuits’ approach, a defendant must show

either: (1) that the restriction benefits the protected class or

(2) that it responds to legitimate safety concerns raised by the

individuals affected, rather than being based on stereotypes.

See Larkin, 89 F.3d at 290; Bangerter, 46 F.3d at 1503-04.

[6] We will follow the standard adopted by the Sixth and

Tenth Circuits, which standard is, we believe, more in line

with the Supreme Court’s analysis in Johnson Controls.

Moreover, the Eighth Circuit’s approach is inappropriate for

Fair Housing Act claims because some classes of persons spe-

cifically protected by the Fair Housing Act, such as families

and the handicapped, are not protected classes for constitu-

4

The Fair Housing Act explicitly provides for certain exceptions to its

discrimination prohibitions. See, e.g., 42 U.S.C. § 3604(f)(9) (permitting

handicapped discrimination under the Fair Housing Act if the individual’s

“tenancy would constitute a direct threat to the health or safety of other

individuals or whose tenancy would result in substantial physical damage

to the property of others”); 42 U.S.C. § 3607(b)(1) (providing for a senior

housing exemption under the Fair Housing Act). However, none of those

exceptions is applicable here.

6990 COMMUNITY HOUSE v. CITY OF BOISE

tional purposes. See Bangerter, 46 F.3d at 1503; Children’s

Alliance, 950 F. Supp. at 1497-98.5

Having determined the appropriate scrutiny to apply for

determining whether the City’s facial discrimination under the

Fair Housing Act is permissible, we now evaluate the City’s

proffered justifications for the men-only policy at Community

House. The City asserts two justifications for the discrimina-

tory policy: (1) safety concerns and (2) the policy allows the

BRM to transfer homeless men from its Boise Rescue Mis-

sion shelter to Community House, so that it can convert the

Boise Rescue Mission into a shelter for women and children.6

We conclude that the plaintiffs have raised serious questions

as to whether these asserted justifications satisfy the standards

for permissible discrimination under the Fair Housing Act.

The City provides little support to establish that the men-

only policy benefits women and families by protecting their

safety. The City’s only evidence regarding safety concerns is

an affidavit from Bill Roscoe, the BRM’s Executive Director.

Roscoe states that “[a]s a person with nearly 20 years of expe-

rience serving the homeless, it is my opinion that mixing dis-

parate populations in the same sleeping facility unnecessarily

fosters conflicts.” He also states that:

The problems [of serving the homeless] are exacer-

bated in a mixed gender shelter environment. Fur-

5

The majority of district courts to consider this question have also fol-

lowed the Sixth and Tenth Circuits’ framework. See, e.g., Cmty. Hous.

Trust v. Dep’t of Consumer & Regulatory Affairs, 257 F.Supp.2d 208,

228-29 (D.D.C. 2003); United States v. City of Chicago Heights, 161 F.

Supp.2d 819, 843 (N.D. Ill. 2001); Children’s Alliance, 950 F.Supp. at

1497-98; Alliance for the Mentally Ill v. City of Naperville, 923 F.Supp.

1057, 1074-75 (N.D. Ill. 1996).

6

Depending on the facility, men or women-only shelters might be justi-

fied by privacy concerns. The City does not proffer a privacy justification

because Community House provides separate rooms for men, women, and

families.

COMMUNITY HOUSE v. CITY OF BOISE 6991

ther, it is not always appropriate to have families,

particularly families with young or vulnerable chil-

dren, to sleep in the same facility as other members

of the homeless population. We believe that our sep-

arate shelter facilities for men and women is one of

the reasons why we have fewer police calls at our

facilities than Community House. For example, in

2004, all five of Rescue Mission’s facilities com-

bined had less than one-half of the police calls of

Community House.

[7] Other than Roscoe’s opinion, the City did not submit a

single police report, incident report, or any other documenta-

tion that supported any safety concerns. The “fewer police

calls” at the BRM’s other facilities does not establish that the

men-only policy is justified by safety concerns. There could

have been fewer police calls due to fewer residents at the

other facilities. Or, there could have been fewer police calls

due to fewer disabled residents at those facilities and therefore

less need for emergency medical assistance.

We do not foreclose the possibility that at a later stage in

this litigation, the City may be able to provide evidence to

establish that its men-only policy is indeed justified by legiti-

mate safety concerns. Cf. Everson v. Mich. Dep’t of Correc-

tions, 391 F.3d 737, 751-61 (6th Cir. 2004) (holding that

female gender was a bona fide occupational qualification

under Title VII for certain officers at female prisons since evi-

dence showed that exclusion of males was reasonably neces-

sary for prison security as well as the safety and privacy of the

inmates); Robino v. Iranon, 145 F.3d 1109, 1110-11 (9th Cir.

1998) (same). However, at this point in the litigation, the

plaintiffs have shown that serious questions exist on the mer-

its as to whether the City’s men-only policy at Community

House is justified by safety concerns.

The City’s other asserted justification for the men-only pol-

icy at Community House is that it will allow the BRM to

6992 COMMUNITY HOUSE v. CITY OF BOISE

transfer homeless men from its Boise Rescue Mission shelter

to Community House, so that it can convert the Boise Rescue

Mission into a shelter for women and families. It argues that

the men-only policy benefits women and families because

they will only be temporarily disadvantaged in order to

receive increased shelter space at the nearby Boise Rescue

Mission when its conversion is completed.

[8] The plaintiffs, however, have raised serious questions

whether women and families will be only temporarily disad-

vantaged. There is no legal obligation binding the BRM to

convert its Boise Rescue Mission shelter to serve women and

families. In fact, the BRM admitted that it may never convert

its Boise Rescue Mission facility into a shelter for women and

families. The BRM told the City that:

If our proposal to own Community House is

accepted, we currently contemplate that we would

convert the 6th & Front [i.e., Boise Rescue Mission]

facility into an emergency homeless shelter for

women and children. Because owning Community

House is only a possibility, we have not done any

planning, feasibility studies or other evaluations.

Therefore, we are unable to provide you with any-

thing more specific. Those studies may indicate that

an emergency shelter for women and children is

infeasible at our 6th & Front site. Also, we may dis-

cover that the property would better serve the needs

of the homeless as a center for another program, or

that it would simply be better to abandon and sell the

property. We will make those decisions once we

know whether or not, and on what terms, we will be

able to own Community House.

Even if the Boise Rescue Mission is converted into a shel-

ter for women and families, because the plaintiffs have raised

serious questions as to the City’s safety justification for the

discriminatory treatment, there is a serious question that shel-

COMMUNITY HOUSE v. CITY OF BOISE 6993

tering women and families at Boise Rescue Mission sepa-

rately from men would benefit women and families by

satisfying a required safety need. Further, even if the conver-

sion were to occur, women and families could still be disad-

vantaged by the men-only policy at Community House,

because shelter there could be more desirable than shelter at

the Boise Rescue Mission. In this regard, Community House,

which is owned by the City, must comply with the Establish-

ment Clause while the Boise Rescue Mission, which is not

owned by the City, is not so restricted.

[9] Because the City’s men-only policy at Community

House is facially discriminatory regarding women and fami-

lies, the more stringent test of Johnson Controls applies.

Under the Johnson Controls framework, the plaintiffs have

raised serious questions regarding the merits of the City’s

proffered justifications for the men-only policy at Community

House. There is no dispute that the balance of hardships tips

in the plaintiffs’ favor. Accordingly, the district court abused

its discretion by denying the plaintiffs’ request under the Fair

Housing Act for a preliminary injunction requiring, at this

stage of the litigation, reinstatement of Community House

residents excluded by the men-only policy.

2. Disability Discrimination

The plaintiffs also argue that the district court erred in hold-

ing that they had not raised serious questions that policies at

Community House discriminate against persons with disabili-

ties. With regard to the disabled, the City’s policies at Com-

munity House are not facially discriminatory, and thus the

McDonnell Douglas test is appropriate for analyzing those

claims. In McDonnell Douglas, the Supreme Court estab-

lished a three-stage, burden-shifting test for analyzing dispa-

rate treatment discrimination claims under Title VII. See

McDonnell Douglas Corp., 411 U.S. at 802-04. The McDon-

nell Douglas test has also been applied in the Fair Housing

Act context. See Gamble, 104 F.3d at 305.

6994 COMMUNITY HOUSE v. CITY OF BOISE

Under the McDonnell Douglas test, the plaintiffs in this

case must first establish a prima facie case of discrimination

with regard to their disability discrimination claims. See id.

To establish such a prima facie case, the plaintiffs must show

(1) that they are members of a protected class, (2) that applied

for and were qualified for shelter at Community House, (3)

that they were rejected, and (4) that openings at the shelter

remained available. See id. After the plaintiffs have estab-

lished a prima facie case, the burden then shifts to the defen-

dants who must articulate a legitimate, nondiscriminatory

reason for their action. See id. If the defendants meet their

burden, the burden then shifts back to the plaintiffs to prove

by a preponderance of the evidence that the reason asserted by

the defendants is a mere pretext. See id.

[10] Here, the plaintiffs have not raised a prima facie case

of disparate treatment based on disability. The district court

found the limited record showed that both “the former resi-

dents of Community House that were moved out and the for-

mer residents of the Boise Rescue Mission who were moved

in . . . have substantial numbers of disabled individuals in

their ranks.” While there may be a lower percentage of dis-

abled persons among the new Community House residents,

the district court’s factual finding is not clearly erroneous.

Thus, there is no evidence thus far that any plaintiffs were

treated differently because of their disability. See 42 U.S.C.

§ 3604(f)(1)-(2).

[11] We conclude that the district court did not abuse its

discretion by denying a preliminary injunction regarding the

plaintiffs’ disability discrimination claims.

C. Constitutional Claims

The plaintiffs additionally argue that the district court

should have granted a broader preliminary injunction with

regard to their religious establishment claims because the

City’s lease with the BRM violates the Idaho Constitution and

COMMUNITY HOUSE v. CITY OF BOISE 6995

the Establishment Clause of the First Amendment of the

United States Constitution. The plaintiffs assert that they have

raised serious questions regarding whether the lease is uncon-

stitutional and therefore they are entitled to the preliminary

injunction they sought.

1. Waiver

The City argues we should not consider the plaintiffs’ con-

stitutional claims because they are being raised for the first

time on appeal.

“We will review an issue that has been raised for the first

time on appeal under certain narrow circumstances . . . [:] (1)

to prevent a miscarriage of justice; (2) when a change in law

raises a new issue while an appeal is pending; and (3) when

the issue is purely one of law.” Kimes v. Stone, 84 F.3d 1121,

1126 (9th Cir. 1996) (internal citations omitted). “The deci-

sion to consider an issue not raised below is discretionary, and

such an issue should not be decided if it would prejudice the

other party.” Id.

[12] We decline to consider the plaintiffs’ Idaho Constitu-

tion claim raised for the first time in this appeal. Not one of

the three narrow circumstances which must exist for us to

consider that issue is present in this case. There is no need to

prevent a miscarriage of justice, there has been no change of

applicable law, and although the plaintiffs argue that the

City’s lease of Community House to the BRM violates two

provisions of the Idaho Constitution, Article 1, section 4 and

Article 9, section 5, that question is not a pure question of

law. Accordingly, we exercise our discretion not to review the

plaintiffs’ Idaho Constitution claim.

We will consider, however, the plaintiffs’ Establishment

Clause claim. The parties dispute whether the Establishment

Clause challenge was raised before the district court. We need

not resolve whether this issue was raised before that court

6996 COMMUNITY HOUSE v. CITY OF BOISE

because even if a party fails to raise an issue in the district

court, we generally will not deem the issue waived if the dis-

trict court actually considered it. See Harrell v. 20th Century

Ins. Co., 934 F.2d 203, 206 n.1 (9th Cir. 1991). Here, the dis-

trict court considered and resolved the Establishment Clause

issue. Accordingly, we will consider it.

2. Establishment Clause

The plaintiffs argue that the district court abused its discre-

tion by denying the full extent of their requested preliminary

injunction because the City’s lease with the BRM violates the

Establishment Clause of the First Amendment of the United

States Constitution. The district court only enjoined the City

from leasing Community House to the BRM if the BRM

requires attendance at religious meetings as a condition of

receiving homeless services. The district court declined to

more broadly enjoin the City from participating in a lease

with the BRM in which the BRM conducts religious meetings

in the Community House facility. We hold that the district

court abused its discretion by not granting a broader prelimi-

nary injunction with regard to the Establishment Clause

claim.

a. Legal Framework

The Establishment Clause provides that “Congress shall

make no law respecting an establishment of religion.”7 U.S.

Const. amend. I. When assessing whether government aid to

religious organizations violates the Establishment Clause, we

apply the three-pronged test first articulated by the Supreme

Court in Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1972).8

7

The Establishment Clause applies to the states through the Due Process

Clause of the Fourteenth Amendment. See County of Allegheny v. ACLU,

492 U.S. 573, 588 (1989).

8

We recognize that Establishment Clause jurisprudence and the role of

the Lemon test is uncertain. See, e.g., Cutter v. Wilkinson, 544 U.S. 709,

COMMUNITY HOUSE v. CITY OF BOISE 6997

Under the Lemon test, government action survives an Estab-

lishment Clause challenge if it (1) has a secular purpose, (2)

has a primary effect of neither advancing nor inhibiting reli-

gion, and (3) does not foster excessive government entangle-

ment with religion. See id. In Agostini v. Felton, 521 U.S.

203, 222-23, 234 (1997), the Supreme Court refined the

Lemon test by folding the “excessive entanglement” inquiry

into, and setting out revised criteria for, the “effect” prong.

See Mitchell v. Helms, 530 U.S. 793, 807-08 (2000) (Thomas,

J., plurality); see also Mitchell, 530 U.S. at 844-45

(O’Connor, J., concurring).

[13] Thus, under the Lemon-Agostini test, we ask (1)

“whether the government acted with the purpose of advancing

or inhibiting religion,” and (2) “whether the [governmental]

aid has the ‘effect’ of advancing or inhibiting religion.”9

Agostini, 521 U.S. at 222-23.

The Supreme Court has identified three primary criteria for

evaluating whether that aid has the “effect” of advancing reli-

gion (i) whether governmental aid results in government

727 n.1 (2005) (Thomas, J., concurring) (noting that the Supreme Court

properly declined to apply the “discredited” Lemon test to an Establish-

ment Clause challenge); Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290,

319 (2000) (Rehnquist, C.J., dissenting) (“Lemon has had a checkered

career in the decisional law of this Court.”); see also DeStefano v. Emer-

gency Hous. Group, Inc., 247 F.3d 397, 405 (2d Cir. 2001) (“In the wake

of a number of fragmented decisions over the past decade, the governing

[Establishment Clause] law remains in doubt.”). The Supreme Court, how-

ever, has not expressly overruled or discarded the Lemon test. Zelman v.

Simmons-Harris, 536 U.S. 639, 668-69 (2002) (O’Connor, J., concurring)

(reaffirming that the Lemon test is still the central tool of analysis in

Establishment Clause cases). Accordingly, we continue to apply it here.

9

As discussed hereafter, it is clear the City’s acts which the plaintiffs

challenge were not taken for the purpose of advancing religion, and inhibi-

tion of religion is not an issue in this case. The question we must answer

is whether the City’s challenged action in its lease to the BRM constitutes

governmental aid which has the effect of advancing religion.

6998 COMMUNITY HOUSE v. CITY OF BOISE

indoctrination; (ii) whether recipients of the aid are defined by

reference to religion; and (iii) whether the aid creates exces-

sive government entanglement with religion. See Agostini,

521 U.S. at 234; see also Mitchell, 530 U.S. at 808 (Thomas,

J., plurality); Mitchell, 530 at 845 (O’Connor, J., concurring).

The same primary criteria are considered when determining

whether aid constitutes an impermissible “endorsement” of

religion. See Agostini, 521 U.S. at 235; Mitchell, 530 U.S. at

845 (O’Connor, J., concurring).

b. District Court’s Decision

In the present case, the district court applied the Lemon test

and held that only a limited preliminary injunction regarding

the City’s lease with the BRM was required to avoid an

Establishment Clause violation. Under the first Lemon prong,

the district court found that the lease had the secular purpose

of providing shelter to the homeless. With regard to the sec-

ond Lemon prong, the district court determined that the plain-

tiffs had raised serious questions about whether the primary

effect of the lease was secular or religious because there was

evidence the BRM required an explanation from any home-

less person who did not want to attend a religious meeting,

and there was some evidence that the BRM required atten-

dance at religious meetings as a condition of receiving ser-

vices. As a result, the district court enjoined the City from

participating in the lease with the BRM if the BRM directly

or indirectly required residents of Community House to attend

religious meetings as a condition of receiving housing or

other services. With this qualification, the district court found

that the primary effect of the lease was secular. The district

court also found that its injunction would remove any exces-

sive government entanglement with religion, the third Lemon

prong, and concluded that the lease would not violate the

Establishment Clause. On this basis, the district court denied

the plaintiffs’ request for a broader preliminary injunction.

The district court did not apply the Agostini modification to

the Lemon test, nor did it consider Mitchell.

COMMUNITY HOUSE v. CITY OF BOISE 6999

c. Application of Legal Framework to this Case

Applying the Lemon test, as modified by Agostini, we con-

clude that the district court abused its discretion by denying

a broader preliminary injunction. While the City’s lease of

Community House to the BRM meets the “purpose” prong of

the test of Lemon-Agostini, it fails the “effect” prong.

There is no plausible dispute that the City leased Commu-

nity House to the BRM for the valid secular purpose of pro-

viding shelter to the homeless, not to promote religion. The

first part of the Lemon-Agostini test is therefore not in ques-

tion and we need not discuss it.

[14] The issue is whether the City’s lease of Community

House to the BRM has the “effect” of advancing religion

under the test of Lemon-Agostini. See Agostini, 521 U.S. at

223; see also Lemon, 403 U.S. at 612. The plaintiffs assert

that the lease has this effect in two ways. First, they argue the

lease creates excessive government entanglement with reli-

gion because it requires extensive monitoring of Community

House by the City to ensure that there are no violations of the

district court’s injunction or the Establishment Clause. Sec-

ond, they argue that the lease results in governmental indoctri-

nation because it provides the BRM with a publicly financed

facility in which to spread its religious message.

Addressing the plaintiffs’ first argument — excessive

entanglement due to extensive monitoring — the plaintiffs

have not raised serious questions that the lease will exces-

sively entangle the City with religion. Government oversight

to ensure that public funding is not used for religious purposes

is not necessarily excessive entanglement. See KDM v. Reeds-

port Sch. Dist., 196 F.3d 1046, 1051 (9th Cir. 1999). “Entan-

glement must be ‘excessive’ before it runs afoul of the Estab-

lishment Clause.” Agostini, 521 U.S. at 233.

In Agostini, the Supreme Court held that unannounced

monthly visits (monitoring remedial-education public school

7000 COMMUNITY HOUSE v. CITY OF BOISE

teachers sent to parochial schools) in order to detect or pre-

vent inculcation of religion did not constitute excessive gov-

ernment entanglement. See id. at 234 (“[W]e have not found

excessive entanglement in cases in which States imposed far

more onerous burdens on religious institutions than the moni-

toring system at issue here.”) (citing Bowen v. Kendrick, 487

U.S. 589, 615-17 (1988) (finding no excessive entanglement

where government reviewed the programs conceived and

materials used by religious grantees of federal aid and moni-

tored the recipients’ activities through periodic visits)).

At this stage of the litigation, there is insufficient evidence

that greater monitoring by the City than that deemed constitu-

tionally permissible in Agostini would be required. Accord-

ingly, the plaintiffs have not shown that serious questions

exist regarding excessive entanglement as a result of monitor-

ing by the City.

We next consider the plaintiffs’ argument that the City’s

lease of Community House to the BRM results in governmen-

tal indoctrination of religion. To satisfy this criterion, the

plaintiffs must show (1) that the BRM’s activities at Commu-

nity House constitute or result in indoctrination, and (2) that

such indoctrination is attributable to the government. See

DeStefano, 247 F.3d at 414 (citing Agostini, 521 U.S. at 226).

“To ‘indoctrinate’ means ‘[t]o instruct in a body of doctrine

or principles . . . . To imbue with a partisan or ideological

point of view . . . .’ The Supreme Court uses ‘indoctrination’

synonymously with ‘inculcation.’ To ‘inculcate’ is ‘[t]o

impress (something) upon the mind of another by frequent

instruction or repetition; [to] instill.’ ” Id. (internal citations

omitted). The record shows that the BRM conducts a daily

sixty-minute Christian chapel service at Community House

before dinner. The chapel service consists of singing, scrip-

ture reading, prayer, testimonies, and preaching. It thus

appears that the BRM is giving instruction in, and imbuing

those Community House residents in attendance at the chapel

COMMUNITY HOUSE v. CITY OF BOISE 7001

service with, the tenets of Christianity. This is true even

assuming attendance at the chapel service is voluntary.

The plaintiffs have thus raised a serious question that the

BRM’s activities at Community House constitute religious

indoctrination. The next question is whether such indoctrina-

tion is attributable to the government. The BRM’s lease of

Community House is publicly financed.10 The City charges

the BRM rent of $1 per year for five years for a furnished

34,000 square foot building worth at least $2.5 million. The

City has also given the BRM a 20-month option to buy the

property for $2 million, which is $500,000 less than the mini-

mum value that the City established for the property in July

2005. Under the lease, the City insures the premises and pays

for necessary repairs.

The City asserts, however, that religious indoctrination can-

not be attributed to it because of its neutral treatment of the

BRM. The City points out that there is no evidence that the

bid process to lease Community House to the BRM was reli-

giously biased. In addition, the City notes that the prior Com-

munity House lease with CHI, a secular organization,

provided a fifty year term with rent fixed at $1 per year. Thus,

the City’s lease with CHI was even more publicly financed

than its current lease with the BRM.

In Mitchell, Justice Thomas, writing for the plurality,

argued that neutral administration of a government aid pro-

10

The publicly-financed nature of the City’s lease of Community House

to the BRM distinguishes it from those cases in which courts have held

that the rental or sale of property to religious organizations did not violate

the Establishment Clause because such acts involved the rental or selling

of property for fair market value in arm’s length business transactions.

See, e.g., Mercier v. Fraternal Order of Eagles, 395 F.3d 693, 702 (7th

Cir. 2005); Southside Fair Hous. Comm’n v. City of New York, 928 F.2d

1336, 1348 (2d Cir. 1991); Christian Sci. Reading Room Jointly Main-

tained v. City & County of San Francisco, 784 F.2d 1010, 1014 (9th Cir.

1986).

7002 COMMUNITY HOUSE v. CITY OF BOISE

gram could immunize the state from a charge that disburse-

ment of public funds to religious groups constitutes

governmental indoctrination:

In distinguishing between indoctrination that is

attributable to the State and indoctrination that is not,

we have consistently turned to the principle of neu-

trality, upholding aid that is offered to a broad range

of groups or persons without regard to their religion.

If the religious, irreligious, and areligious are all

alike eligible for governmental aid, no one would

conclude that any indoctrination that any particular

recipient conducts has been done at the behest of the

government. . . . To put the point differently, if the

government, seeking to further some legitimate secu-

lar purpose, offers aid on the same terms, without

regard to religion, to all who adequately further that

purpose, then it is fair to say that any aid going to a

religious recipient only has the effect of furthering

that secular purpose.

Mitchell, 530 U.S. at 809-10 (Thomas, J., plurality) (citation

omitted).

However, Justice O’Connor disagreed with the plurality’s

“near-absolute position with respect to neutrality.” Mitchell,

530 U.S. at 838 (O’Connor, J., concurring). Importantly, Jus-

tice O’Connor’s concurrence is the controlling authority given

that she concurred in the result on narrower grounds than

those on which the plurality rested.11 See Marks v. United

States, 430 U.S. 188, 193 (1977) (“When a fragmented Court

11

Justice Breyer joined Justice O’Connor’s concurrence in Mitchell. The

dissent, written by Justice Souter and joined by Justices Stevens and Gins-

burg, also disagreed with the plurality’s “espous[al] of a new conception

of neutrality as a practically sufficient test of constitutionality.” Id. at 869

(Souter, J., dissenting). Thus, five Justices in Mitchell explicitly disagreed

with the plurality’s discussion on neutrality.

COMMUNITY HOUSE v. CITY OF BOISE 7003

decides a case and no single rationale explaining the result

enjoys the assent of five Justices, the holding of the Court

may be viewed as that position taken by those Members who

concurred in the judgments on the narrowest grounds.”) (cita-

tion omitted); see also Gentala v. City of Tucson, 244 F.3d

1065, 1076 (9th Cir. 2001) (“We are left . . . with a clear hold-

ing by a Supreme Court majority that when the government

subsidizes religious activity, the fact that it is doing so pursu-

ant to a program that treats religious speech or association

coequally with other speech is not, standing alone, determina-

tive in Establishment Clause analysis.”), rev’d on other

grounds, 534 U.S. 946 (2001); DeStefano, 247 F.3d at 418

(stating that Justice O’Connor’s view in Mitchell is control-

ling); Columbia Union Coll. v. Oliver, 254 F.3d 496, 504, 504

n.1 (4th Cir. 2001) (same); Simmons-Harris v. Zelman, 234

F.3d 945, 957 (6th Cir. 2000) (same), rev’d on other grounds,

536 U.S. 639 (2002).

In her concurrence in Mitchell, Justice O’Connor did not

dispute that “neutrality is an important” factor in deciding

Establishment Clause aid cases. Mitchell, 530 U.S. at 838

(O’Connor, J., concurring). However, she noted that “[w]e

have never held that a government-aid program passes consti-

tutional muster solely because of the neutral criteria it

employs as a basis for distributing aid.” Id. at 839.

Justice O’Connor also disagreed with the Mitchell plurali-

ty’s conclusion that actual diversion of government aid to reli-

gious indoctrination does not indicate an impropriety under

the Establishment Clause.12 See id. at 840. In contrast to the

12

In addition to neutrality, the plurality opinion focused on whether the

government aid has religious or secular content and dismissed inquiring

into whether the aid was diverted for religious purposes:

The issue is not divertibility of aid but rather whether the aid

itself has an impermissible content. Where the aid would be suit-

able for use in a public school, it is also suitable for use in any

private school. Similarly, the prohibition against the government

7004 COMMUNITY HOUSE v. CITY OF BOISE

plurality, she emphasized that “actual diversion of govern-

ment aid to religious indoctrination” is constitutionally sus-

pect and is more central to the Establishment Clause

jurisprudence than neutrality or secular content.13 Id. She

noted that although Supreme Court “cases have permitted

some government funding of secular functions performed by

sectarian organizations,” the Court’s decisions “provide no

precedent for the use of public funds to finance religious

activities.” Id. (citation omitted).

[15] Thus, Mitchell stands for the proposition that actual

diversion of secular government aid to religious indoctrina-

tion violates the Establishment Clause. See id. at 840-42.

Here, according to the showing that has been made at this

stage of the litigation, it appears that the aid from the City

(i.e., the subsidized Community House facility) is actually

being diverted for Christian chapel services in addition to

other services for the homeless. Accordingly, under Mitchell,

the plaintiffs have raised serious questions that the BRM’s

religious indoctrination occurring at Community House is

attributable to the City.

Other Supreme Court cases support the conclusion that, to

avoid an Establishment Clause violation, a publicly financed

government building may not be diverted to religious use. See

Roemer v. Bd. of Pub. Works, 426 U.S. 736, 760-61 (1976)

(upholding program of direct state financial aid to private col-

providing impermissible content resolves the Establishment

Clause concerns that exist if aid is actually diverted to religious

uses.

Mitchell, 530 U.S. at 822 (Thomas, J., plurality).

13

The Mitchell dissent would go further than Justice O’Connor’s

emphasis on actual diversion and would hold unconstitutional government

aid if there is a substantial risk that it will be diverted to religious uses.

See id. at 890 (Souter, J., dissenting) (“[W]e have long held government

aid invalid when circumstances would allow its diversion to religious edu-

cation.”).

COMMUNITY HOUSE v. CITY OF BOISE 7005

leges and universities, including religious ones, because there

was a statutory prohibition against sectarian use of the funds);

Hunt v. McNair, 413 U.S. 734, 744-45 (1973) (upholding pro-

gram of state aid to colleges and universities, including reli-

gious ones, to finance construction because funds were not

allowed to be used for the construction of religious facilities).

Indeed, in Tilton v. Richardson, 403 U.S. 672 (1971), the

Supreme Court overturned a portion of a statute that autho-

rized federal loans and grants to institutions of higher learning

that would have allowed publicly financed buildings to be

used for religious purposes because that portion of the statute

violated the Establishment Clause. While the statute contained

a provision prohibiting the use of the funds to construct facili-

ties for sectarian worship, the provision expired after twenty

years. See id. at 675. Applying the Lemon test, the Court held

that if, after expiration of the twenty-year prohibitory period,

the benefitted religious institutions used the facilities for sec-

tarian worship, then the “effect” of the government’s grant

would be religious advancement. See id. at 683. The Court

thus struck down the expiration of the twenty-year limit in

order to avoid an Establishment Clause violation. See id. at

689.

[16] Because the plaintiffs have raised serious questions as

to whether the BRM’s religious activities at the publicly-

financed Community House facility constitute governmental

indoctrination of religion, they have established that serious

questions exist regarding whether the City’s aid to the BRM

has the “effect” of advancing religion. The plaintiffs have,

therefore, raised serious questions regarding an Establishment

Clause violation.

[17] The fact that the plaintiffs have raised “serious First

Amendment questions compels a finding that there exists ‘the

potential for irreparable injury, or that at the very least the

balance of hardships tips sharply in [the plaintiffs’] favor.’

Sammartano v. First Judicial Dist. Court, 303 F.3d 959, 973

7006 COMMUNITY HOUSE v. CITY OF BOISE

(9th Cir. 2002) (quoting Viacom Int’l, Inc. v. FCC, 828 F.

Supp. 741, 744 (N.D. Cal. 1993)). We therefore hold that the

plaintiffs have demonstrated that the balance of hardships tips

in their favor. See id. at 974. We conclude that the district

court abused its discretion by denying the plaintiffs’ request

for a broader preliminary injunction. The district court should

have enjoined the conduct of the chapel services and other

religious activities at Community House, even if participation

in those activities is voluntary.

IV. CONCLUSION

The district court appropriately applied the McDonnell

Douglas test to the plaintiffs’ disability discrimination claims

and we affirm its denial of a preliminary injunction as to those

contentions.

We reverse the district court’s denial of a preliminary

injunction, both with regard to the men-only policy at Com-

munity House and with regard to the religious activities at

Community House. Because the men-only policy at Commu-

nity House is facially discriminatory, the district court erred

in applying the McDonnell Douglas test. Under the facial dis-

crimination test of Johnson Controls, the plaintiffs have

raised serious questions as to whether the City is discriminat-

ing against women and families in violation of the Fair Hous-

ing Act. There is no dispute that the balance of hardships tips

in favor of the plaintiffs. Accordingly, we reverse the district

court’s denial of the plaintiffs’ request for a preliminary

injunction that would require the reinstatement of Community

House residents excluded by the men-only policy.

The plaintiffs have also raised serious questions as to

whether the City’s aid to the BRM by providing it with the

Community House building has the “effect” of advancing reli-

gion and violates the Establishment Clause. The balance of

hardships as to this claim tips in the plaintiffs’ favor. We,

therefore, reverse the district court’s denial of the plaintiffs’

COMMUNITY HOUSE v. CITY OF BOISE 7007

request for a broader preliminary injunction prohibiting

chapel services and other religious activities at the Commu-

nity House facility. Each party shall bear his, her, and its own

costs on appeal.

AFFIRMED IN PART; REVERSED IN PART; AND

REMANDED.

CALLAHAN, Circuit Judge concurring and dissenting:

I agree with much of the majority opinion; however, on

three important points we part company.1 First, while I agree

with the majority that the district court should have applied

the test set forth in Int’l Union, United Auto., Aerospace &

Agric. Implement Workers of Am. v. Johnson Controls, Inc.,

499 U.S. 187, 200-01 (1991), I read the record as including

evidence that the temporary dislocation of homeless women

was necessary for safety concerns and for the long-term

increase in the facilities available to homeless women. Sec-

ond, even if there is some question as to whether the overall

scheme constituted a “bona fide occupational qualification”

under Johnson Controls, id. at 200, the appropriate remedy is

to vacate the district court’s order and remand for further pro-

ceedings. Third, although the majority correctly identifies the

critical issue on appellants’ Establishment Clause claim, its

conclusion that the Boise Rescue Mission Ministries’ volun-

tary chapel services constitute religious indoctrination attrib-

utable to the government is neither factually nor legally

sound.

1

I concur in the majority’s affirmance of the district court’s denial of

relief on appellants’ disability discrimination claims and the decision to

decline to consider the appellants’ claim under the Idaho Constitution.

7008 COMMUNITY HOUSE v. CITY OF BOISE

I

My analysis starts with the same factual determination as

the majority: the men-only policy at Community House is

facially discriminatory because it explicitly treats women and

families different from men. Furthermore, we agree that the

district court erred in applying the test set forth in McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973), and

should have applied the approach adopted in Johnson Con-

trols, 499 U.S. 187. In Johnson Controls, the Supreme Court

held that discrimination based on gender was forbidden under

Title VII “unless respondent can establish that sex is a ‘bona

fide occupational qualification.’ ” (“BFOQ”) Id. at 200.

I also agree with the majority that in examining discrimina-

tion issues under the Fair Housing Act, we have frequently

drawn from employment discrimination analysis (see maj. op.

6985-86 n.3), and importantly, that we “have not previously

adopted a standard for determining the propriety or accept-

ability of justifications for facial discrimination under the Fair

Housing Act.” (maj. op. 6989) I appreciate the majority’s rec-

ognition of a split between our sister circuits as to the stan-

dard to be applied for analyzing a defendant’s rationales in

challenges under the Fair Housing Act as it applies to claims

under the Equal Protection Clause. I do not object to the

majority’s adoption of the approach adopted by the Sixth and

Tenth Circuits in requiring that a restriction be based on legit-

imate public concerns, rather than stereotypes, and benefits

the protected class. See Larkin v. Michigan Dep’t of Social

Servs., 89 F.3d 285, 290 (6th Cir. 1996), and Bangerter v.

Orem City Corp., 46 F.3d 1491, 1503-04 (10th Cir. 1995).

Nonetheless, applying this more exacting test, appellants have

not demonstrated that they are entitled to injunctive relief.

The City proffered two justifications for the men-only pol-

icy at Community House: (1) safety concerns, and (2) trans-

ferring men to Community House would allow Boise Rescue

Mission Ministries (“BRM”) to convert another one of its

COMMUNITY HOUSE v. CITY OF BOISE 7009

facilities into a shelter for women and children. The safety

concerns are the type of legitimate interests, not based on ste-

reotypes, that may satisfy the first prong of the test for allow-

ing a facially discriminatory provision. Indeed, the majority

recognizes that safety concerns might justify the men-only

policy. (See maj. op. 6991) I would affirm as I agree with the

district court that “the record contains evidence supporting the

safety problems inherent in housing homeless men with

homeless women.” Moreover, even if I were to determine that

safety concerns were not adequately addressed on this record,

I would remand the matter to the district court to take addi-

tional evidence.2

The City addressed the second prong of the test by offering

evidence that the men-only policy at Community House was

only a temporary disadvantage necessary to allow the conver-

sion of the nearby Boise Rescue Mission into increased shel-

ter space for women and children. In Bangerter, the Tenth

Circuit observed that “courts have uniformly allowed defen-

dants to justify their conduct despite the discriminatory

impact if they can prove that they ‘furthered, in theory and in

practice, a legitimate, bona fide governmental interest and that

no alternative would serve that interest with less discrimina-

tory effect’ ” and noted that a similar approach had been sug-

gested for certain intentional discrimination claims under the

Fair Housing Act. 46 F.3d at 1504-05 (internal citations omit-

ted).

2

The district court noted that Community House contained both a home-

less shelter and a low-cost housing unit. The homeless shelter could hold

in separate dorms, 66 men and 13 women. There were ten units for home-

less families and another ten units for low income, or “transitional,” hous-

ing as well as 39 single-residence apartments. Community House had

accommodations for the disabled, and about three-fourths of its residents

were disabled. This mix of homeless single adults, families with children,

and the disabled (mentally and physically) would appear to be a volatile

mix.

7010 COMMUNITY HOUSE v. CITY OF BOISE

Here, the district court held:

It appears to the court that with the lease, the city

seized the opportunity to (1) turn over operations of

Community House to an expert; (2) immediately

increase the space for homeless men; and (3) eventu-

ally increase the space for homeless women and chil-

dren. In other words, the City made the political

decision to trade short-term hardship for long-term

gain.

If the Court were to intervene, it would simply trans-

fer the hardship from one class of homeless women

to another. By ordering the return of former female

residents to Community House, the Court would

scuttle any deal for increased space at the Boise Res-

cue Mission and shift the hardship to the women

who would have occupied that space.

This case is about scarce resources, not discrimina-

tion.

I would hold that the district court’s reasoning supports a

determination that the men-only policy at the Community

House was in effect a “BFOQ” intended to result in additional

and better shelters for women and children.3 We should not be

so shortsighted as to not recognize that improving the housing

for certain groups of people may require some short-term dis-

advantages.

It is not clear whether the majority disagrees with the prop-

osition that the long-term benefits may justify short-term dis-

advantages. It seems to question the factual premise of the

3

I recognize that while the concept of a “BFOQ” may be borrowed from

employment discrimination cases, the exact contours of a bona fide gov-

ernment interest in litigation under the Fair Housing Act may have to be

altered to reflect certain differences between housing and employment.

COMMUNITY HOUSE v. CITY OF BOISE 7011

district court’s determination, rather than its legal analysis.

The majority cites BRM’s reticence, prior to the approval of

its bid for Community House, to commit to the conversion of

the Boise Rescue Mission. The district court, however, found

that “BRM made that commitment in its proposal to the City,

and there is no evidence that the BRM intends not to honor

its commitment.”

I would hold that although the district court erred in apply-

ing the McDonnell Douglas standard instead of the Johnson

Controls approach, the error was harmless because the City

presented evidence that fairly supports the district court’s

determination that the men-only policy was part of a program

designed to increase the homeless shelter available to women

and children, and this determination is entitled to deference.

Nat’l Wildlife Federation v. Nat’l Marine Fisheries Serv., 422

F.3d 782, 793 (9th Cir. 2005) (“A district court’s order with

respect to preliminary injunctive relief is subject to limited

appellate review, and we will reverse only if the district court

abused its discretion or based its decision on an erroneous

legal standard or on clearly erroneous findings of fact.” (inter-

nal quotation marks and citation omitted)).

II

Moreover, if the district court’s error is not harmless, the

proper remedy is not the issuance of injunctive relief, but the

vacation of the district court’s denial of the preliminary

injunction and a remand to allow the district court to develop

the underlying facts and to apply circuit law as articulated in

this opinion. In the penultimate paragraph in its opinion in

Bangerter, the Tenth Circuit wrote:

These courts all recognize the importance of leaving

room for flexible solutions to address the complex

problem of discrimination and to realize the goals

established by Congress in the Fair Housing Act.

7012 COMMUNITY HOUSE v. CITY OF BOISE

However, once again, such an analysis cannot be

performed on the pleadings alone.

...

It could be that the evidence will show that such a

neighborhood advisory committee might prove to be

beneficial to the handicapped, increasing their access

to, and acceptability in, the neighborhood. Only after

a record has been developed can the district court,

and ultimately our Court, determine whether these

restrictions violate the FHAA.

46 F.3d at 1505 (footnotes omitted). These concerns recom-

mend that we stay our hand and remand this case to allow for

further development of the evidence.

The majority, however, charges into the fray, despite recog-

nizing that the applicable law and relevant facts are less than

clear, and without citing any authority for its activism. Indeed,

the single case cited by the majority for the “requirements for

a preliminary injunction,” Warsoldier v. Woodford, 418 F.3d

989 (9th Cir. 2005), concludes by reversing and remanding

“for further proceedings not inconsistent with this opinion.”

Id. at 1002. In light of the majority’s enunciation of a standard

that admittedly was not clear when the district court acted and

the inevitable effects of the passage of time, the proper form

of relief — were relief warranted — is a vacation of the dis-

trict court’s denial of injunctive relief and a remand for fur-

ther proceedings consistent with this court’s opinion.

III

Again, I start at the same place as the majority on appel-

lants’ Establishment Clause claim, but cannot agree that

appellants have demonstrated that they are entitled to affirma-

tive action from this court or the district court. We agree that

the appropriate test is that set forth in Lemon v. Kurtzman,

COMMUNITY HOUSE v. CITY OF BOISE 7013

403 U.S. 602, 612-23 (1971), and modified by Agostini v.

Felton, 521 U.S. 203, 222-23, 234 (1997). See also Mitchell

v. Helms, 530 U.S. 793, 807-08 (2000) (Thomas, J., plurality)

and Mitchell, 530 U.S. at 844-45 (O’Connor, J., concurring).

As noted by Justice O’Connor in her concurring opinion in

Mitchell, following Agostini, the Court has

articulated three primary criteria to guide the deter-

mination whether a government-aid program imper-

missibly advances religion: (1) whether the aid

results in governmental indoctrination, (2) whether

the aid program defines its recipients by reference to

religion, and (3) whether the aid creates an excessive

entanglement between government and religion.

530 U.S. at 845. Here, we agree that the appellants have not

shown that serious questions exist regarding excessive entan-

glement (see maj. op. 7000), and it appears that neither the

City in its lease, nor the BRM in managing the shelter, “de-

fines the recipients by reference to religion.” Thus, for there

to be any violation of the Establishment Clause there must be

“governmental indoctrination.”

The majority reasons that “governmental indoctrination”

has two components: (1) that BRM’s activities at Community

House constitute or result in indoctrination, and (2) that such

indoctrination is attributable to the government. (See maj. op.

7000, citing DeStefano v. Emergency Hous. Group, Inc., 247

F.3d 397, 414 (2d Cir. 2001)). For the purposes of this dis-

sent, I accept the majority’s determination that BRM’s hold-

ing of chapel services constitutes “indoctrination.” The

majority, however, fails to appreciate the Supreme Court’s

opinions in Agostini and Mitchell when it concludes that this

“indoctrination” is attributable to the City.

The majority’s conclusion is based on its finding that “it

appears that the aid from the City (i.e. the Community House

7014 COMMUNITY HOUSE v. CITY OF BOISE

facility) is actually being diverted for Christian chapel ser-

vices in addition to other services for the homeless.” (maj. op.

7004) This finding is factually suspect and employs disap-

proved legal analysis.

On the existing record, it is questionable whether there is

any “aid” flowing from the city to the BRM. What is known

is that the BRM pays the City a dollar a year. The BRM has

a five-year lease, and the City insures the premises and pays

for necessary repairs. The majority also notes that the BRM

has a 20-month option to buy the property for two million

dollars, which is $500,000 less than the minimum value that

the City established for the property in July 2005. But, there

is no suggestion that the BRM’s bid was not the best bid that

the City received. Also, as the majority notes, the City’s prior

lease with a secular organization was even more favorable to

the lessee. Furthermore, it appears that Community House

was constructed with federal funds and that this restricts what

the City can do with Community House. In addition, the

record reflects that the BRM is a Christian non-profit organi-

zation that serves the homeless population in Boise. There is

nothing in the record to suggest that the lease of Community

House somehow enriches the BRM. Rather, it appears that the

lease allows the BRM to provide homeless shelters that other-

wise would have to be furnished (and paid for) by the City or

simply would not exist. Perhaps a record could be developed

to show that the lease constitutes “aid” from the City to the

BRM, but the present record neither compels, nor supports,

such a factual determination.

The majority’s conclusion is also based on a concept of

diversion that was strongly rejected in Mitchell both by Jus-

tice Thomas in his plurality opinion and by Justice O’Connor

in her concurring opinion. The majority’s reasoning appears

to be that whatever “aid” flows from the City to the BRM by

way of the lease is “diverted” from the secular purpose of the

lease — providing shelter — to the religious purpose of hold-

COMMUNITY HOUSE v. CITY OF BOISE 7015

ing non-mandatory chapel services. This is out of step with

the plurality and concurring opinions in Mitchell.

The situation at bar does not constitute governmental

indoctrination under Justice Thomas’s plurality opinion in

Mitchell. Although Mitchell concerned a distinct issue, aid to

private religious schools, the impact of the plurality’s position

on this case is clear. Justice Thomas wrote:

In distinguishing between indoctrination that is

attributable to the State and indoctrination that is not,

we have consistently turned to the principle of neu-

trality, upholding aid that is offered to a broad range

of groups or persons without regard to their religion.

If the religious, irreligious, and areligious are all

alike eligible for governmental aid, no one would

conclude that any indoctrination that any particular

recipient conducts has been done at the behest of the

government. For attribution of indoctrination is a rel-

ative question. If the government is offering assis-

tance to recipients who provide, so to speak, a broad

range of indoctrination, the government itself is not

thought responsible for any particular indoctrination.

530 U.S. at 809-10. In our case, the City, pursuant to a request

for proposals, determined that the BRM could best meet its

secular purpose of providing shelter to the homeless. Under

the plurality’s approach, the incidental holding of voluntary

chapel services for the homeless does not rise to the level of

governmental indoctrination. Justice Thomas recognized that

the aid in issue in Mitchell could indirectly benefit the religion

that operated the school, but held that this could not reason-

ably be viewed as an endorsement of religion.4 Id. at 835. Jus-

4

Justice Thomas explained:

A concern for divertibility, as opposed to improper content, is

misplaced not only because it fails to explain why the sort of aid

7016 COMMUNITY HOUSE v. CITY OF BOISE

tice Thomas’s plurality opinion should be read in conjunction

with Justice O’Connor’s concurring opinion. The majority

here focuses on Justice O’Connor’s statement that the Court

has “never held that a government-aid program passes consti-

tutional muster solely because of the neutral criteria it

employs as a basis for distributing aid.” Mitchell, 530 U.S. at

839 (emphasis in original), and her objection to the “actual

diversion of government aid to religious indoctrination.” (maj.

op. 7003) This misses the critical distinction between Justice

O’Connor’s concurring opinion and Justice Souter’s dissent.

Justice O’Connor, joined by Justice Breyer, held that the aid

in issue in Mitchell did not result in governmental indoctrina-

tion, even though it obviously had some indirect benefit to the

religion that ran the school. Similarly, even assuming that

some aid flows from the City to the BRM, under Justice

O’Connor’s concurring opinion in Mitchell, this does not

amount to government indoctrination.

Justice O’Connor observed that in recent years the Court

“had taken a more forgiving view of neutral government pro-

grams that make aid available generally without regard to the

religious or nonreligious character of the recipient.” Mitchell,

530 U.S. at 847, citing Agostini, 521 U.S. at 225-26. In addi-

tion, she, like the plurality, recognized that almost any aid

could be diverted.5 To meet these realities, Justice O’Connor

that we have allowed is permissible, but also because it is bound-

less — enveloping all aid, no matter how trivial — and thus has

only the most attenuated (if any) link to any realistic concern for

preventing an “establishment of religion.” Presumably, for exam-

ple, government-provided lecterns, chalk, crayons, pens, paper,

and paintbrushes would have to be excluded from religious

schools under respondents’ proposed rule. But we fail to see how

indoctrination by means of (i.e., diversion of) such aid could be

attributed to the government.

Id. at 824. Similarly, in this case, it is doubtful whether — as a matter of

law — the supposed diversion of “aid” to the BRM’s chapel services

could be attributed to the City.

5

Justice O’Connor observed:

An educator can use virtually any instructional tool, whether it

COMMUNITY HOUSE v. CITY OF BOISE 7017

proposed that to “establish a First Amendment violation,

plaintiffs must prove that the aid in question actually is, or has

been, used for religious purposes.” Id. at 857. However, she

would reject any presumption that secular restrictions were

not followed. Id. at 859. Justice O’Connor also indicated that

a de minimis diversion would not raise constitutional concerns.6

Id. at 861.

In our case, any aid flowing from the City to the BRM is

truly de minimis. The BRM has agreed to undertake the not

inconsiderable expense of maintaining a homeless shelter, in

return for the City insuring the premises and paying for neces-

sary repairs.7 As it does not appear that the BRM receives any

has ascertainable content or not, to teach a religious message. In

this respect, I agree with the plurality that “it is hard to imagine

any book that could not, in even moderately skilled hands, serve

to illustrate a religious message.” Ante, at 2549. In today’s case,

for example, we are asked to draw a constitutional distinction

between lending a textbook and lending a library book. Justice

SOUTER’s try at justifying that distinction only demonstrates the

absurdity on which such a difference must rest. He states that

“[a]lthough library books, like textbooks, have fixed content, reli-

gious teachers can assign secular library books for religious cri-

tique.” Post, at 2592. Regardless of whether that explanation is

even correct (for a student surely could be given a religious

assignment in connection with a textbook too), it is hardly a dis-

tinction on which constitutional law should turn. Moreover, if the

mere ability of a teacher to devise a religious lesson involving the

secular aid in question suffices to hold the provision of that aid

unconstitutional, it is difficult to discern any limiting principle to

the divertibility rule. For example, even a publicly financed lunch

would apparently be unconstitutional under a divertibility ratio-

nale because religious school officials conceivably could use the

lunch to lead the students in a blessing over the bread.

Id. at 855.

6

Justice O’Connor wrote: “[t]he limited evidence amassed by respon-

dents during 4 years of discovery (which began approximately 15 years

ago) is at best de minimis and therefore insufficient to affect the constitu-

tional inquiry.” Id. at 861.

7

The City may well have these obligations regardless of the identity of

the lessee, or whether the building is leased.

7018 COMMUNITY HOUSE v. CITY OF BOISE

funds from the City, there is no possibility of any actual diver-

sion of money. Accordingly, the majority ventures into the

relatively unchartered waters of determining when intangible

assistance from a governmental entity amounts to “govern-

mental indoctrination.” I would not embark on this course

because, here, conducting chapel services at which attendance

is voluntary, in conjunction with generally providing home-

less services, simply does not rise to a level of constitutional

concern.

Finally, even if it were determined that holding voluntary

chapel services could amount to government indoctrination,

the proper course, as previously explained (see Part II), would

be to vacate the district court’s denial of injunctive relief, and

to remand to allow the parties to present the factual evidence

necessary for even a preliminary determination that the

BRM’s holding of voluntary chapel services might amount to

government indoctrination.

IV

In sum, I would affirm the district court’s denial of a pre-

liminary injunction. Although the district court erred in failing

to apply the test set forth in Johnson Controls, 499 U.S. at

200-01, this was harmless error because the record shows that

the City offered two bona fide government interests to sustain

the lease. In addition, this record contains no showing of the

“governmental indoctrination” necessary for judicial relief

from an alleged violation of the Establishment Clause under

the Supreme Court’s opinions in Agostini, 521 U.S. 203, and

Mitchell, 530 U.S. 793. Lastly, even if the district court had

erred in denying the appellants preliminary relief, the proper

remedy would be a remand for further proceedings consistent

with our opinion.