On November 9, a panel of the U.S. Court of Appeals for the Ninth Circuit concluded that a city-owned homeless shelter's men-only policy is facially discriminatory against women and families under the Fair Housing Act and, further, that a city's subsidization of a homeless shelter to a Christian non-profit group that held daily voluntary Christian prayer sessions raised serious questions that religious indoctrination was occurring, in violation of the Establishment Clause. The Court held that the district court should have granted a preliminary injunction with regard to the men-only policy and to the prayer sessions.
In so holding, the Ninth Circuit panel applied the employment-discrimination case, Implement Workers of America v. Johnson Controls, Inc., 499 US 187, 197, 200-01 (1991), to the present homeless-shelter case. This is the first case in the Ninth Circuit that adopts a standard for addressing a defendant's justifications for facial discrimination under the Fair Housing Act. Other circuits have used different standards. This panel of the Ninth Circuit followed the Sixth and Tenth Circuits (and several district courts), which require a defendant to justify its facial discrimination by showing that the restriction either (1) benefits the protected class or (2) responds to legitimate safety concerns rather than being based on stereotypes. At the preliminary-injunction stage of this case, the defendant (the City of Boise) failed to do so.
The Ninth Circuit panel also concluded that the Lemon-Agostini test still applies to Establishment Clause cases (Lemon v. Kurtzman, 403 US 602 (1972) and Agostini v. Felton, 521 US 203 (1997)), as modified by the controlling authority of Justice O'Connor's concurrence in Mitchell v. Helms, 530 US 793, 838-42 (2000) (controlling authority because she concurred in the result on narrower grounds than those on which the plurality rested). The Ninth Circuit panel concluded that Mitchell stands for the proposition that actual diversion of secular government aid to religious indoctrination violates the Establishment Clause, and in the present case, the district court should have enjoined the religious activities at the homeless shelter.
Judge Callahan concurred in part and dissented on three points.
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