Community House, Inc. v. City of Boise

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…

Opinion by Judge THOMPSON; Partial Concurrence and Partial Dissent by Judge CALLAHAN.

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 at 1123, is deleted. A substituted footnote 2 is inserted in its place, which substituted footnote reads as follows:

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 bane. 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 rehearing will be entertained.

OPINION

The plaintiffs-appellants Community House, Inc. (“CHI”), Marlene K. Smith, Greg A. Luther, and Jay D. Banta (collectively,…

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 …