Community House, Inc. v. City of Boise, Idaho

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 , 111 S.Ct. 1196 , 113 L.Ed.2d 158 (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. Second, even if there is some question as to whether the overall scheme constituted a “bona fide occupational qualification” under Johnson Controls, id. at 200, 111 S.Ct. 1196 , the appropriate remedy is to vacate the district court’s order and remand for further proceedings. Third, although the majority correctly identifies the critical issue on appellants’ Establishment Clause claim, its conclusion that the Boise Rescue Mission Ministries’ voluntary chapel services constitute religious indoctrination attributable to the government is neither factually nor legally sound.

I

My analysis starts with…

The plaintiffs-appellants Community House, Inc. (“CHI”), Marlene K. Smith, Greg A. Luther, and Jay D. Banta (collectively, “plaintiffs”) appeal the district court’s partial denial of their motion for a preliminary injunction against the defendants-appellees City of Boise, Idaho, its *1121 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 management 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 residents 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…

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, 18418 COMMUNITY HOUSE v. CITY OF BOISE 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 fifty years, most recently at four facilities in both Boise and Nampa, Idaho. The BRM’s Boise…