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

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,
v.
CITY OF BOISE, IDAHO; DAVID H.
BIETER, Mayor; BOISE CITY No. 05-36195
COUNCIL; MARYANN JORDAN;
ELAINE CLEGG; VERNON  D.C. No.
CV-05-00283-BLW
BISTERFELDT; DAVID EBERLE;
OPINION
JEROME MAPP; ALAN SHEALY, Boise
City Council Members; BRUCE
CHATTERTON, Director, Planning
and Development Services; JIM
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

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

18411
 COMMUNITY HOUSE v. CITY OF BOISE 18415

COUNSEL

Howard A. Belodoff, Boise, Idaho, for the plaintiffs-
appellants.
18416 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.

OPINION

THOMPSON, Senior Circuit Judge:

The plaintiffs-appellants Community House, Inc. (“CHI”),
Marlene K. Smith, Greg A. Luther, and Jay D. Banta (collec-
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
 COMMUNITY HOUSE v. CITY OF BOISE 18417
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
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,
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 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
 COMMUNITY HOUSE v. CITY OF BOISE 18419
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
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
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).
18420 COMMUNITY HOUSE v. CITY OF BOISE
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
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.
 COMMUNITY HOUSE v. CITY OF BOISE 18421
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

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.
United Airlines, Inc., 216 F.3d 845, 854 (9th Cir. 2000); see
2
We have previously applied the Fair Housing Act to homeless shelters.
See Turning Point v. City of Caldwell, 74 F.3d 941 (9th Cir. 1996).
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
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.”).
18422 COMMUNITY HOUSE v. CITY OF BOISE
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
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
 COMMUNITY HOUSE v. CITY OF BOISE 18423
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
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
18424 COMMUNITY HOUSE v. CITY OF BOISE
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.”).

[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
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
 COMMUNITY HOUSE v. CITY OF BOISE 18425
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-
tional purposes. See Bangerter, 46 F.3d at 1503; Children’s
Alliance, 950 F. Supp. at 1497-98.5

“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.
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).
18426 COMMUNITY HOUSE v. CITY OF BOISE
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-
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.
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 18427
[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
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
18428 COMMUNITY HOUSE v. CITY OF BOISE
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-
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.
 COMMUNITY HOUSE v. CITY OF BOISE 18429
[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.

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
18430 COMMUNITY HOUSE v. CITY OF BOISE
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
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.
 COMMUNITY HOUSE v. CITY OF BOISE 18431
“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
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
18432 COMMUNITY HOUSE v. CITY OF BOISE
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
Under the Lemon test, government action survives an Estab-
lishment Clause challenge if it (1) has a secular purpose, (2)
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,
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.
 COMMUNITY HOUSE v. CITY OF BOISE 18433
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
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
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.
18434 COMMUNITY HOUSE v. CITY OF BOISE
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.

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
 COMMUNITY HOUSE v. CITY OF BOISE 18435
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
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)).
18436 COMMUNITY HOUSE v. CITY OF BOISE
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
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
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
 COMMUNITY HOUSE v. CITY OF BOISE 18437
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-
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

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).
18438 COMMUNITY HOUSE v. CITY OF BOISE
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
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-
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 18439
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
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
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
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.”).
18440 COMMUNITY HOUSE v. CITY OF BOISE
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-
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
 COMMUNITY HOUSE v. CITY OF BOISE 18441
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
(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
18442 COMMUNITY HOUSE v. CITY OF BOISE
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’
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
 COMMUNITY HOUSE v. CITY OF BOISE 18443
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.

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-
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.
18444 COMMUNITY HOUSE v. CITY OF BOISE
tion issues under the Fair Housing Act, we have frequently
drawn from employment discrimination analysis (see maj. op.
18421 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. 18424-25) I appreciate the majority’s
recognition 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
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. 18427) 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
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
 COMMUNITY HOUSE v. CITY OF BOISE 18445
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).

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-

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.
18446 COMMUNITY HOUSE v. CITY OF BOISE
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
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
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 18447
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.
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.
18448 COMMUNITY HOUSE v. CITY OF BOISE
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,
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-
 COMMUNITY HOUSE v. CITY OF BOISE 18449
glement (see maj. op 18436), 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.
18436, 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
facility) is actually being diverted for Christian chapel ser-
vices in addition to other services for the homeless.” (maj. op.
18440) 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
18450 COMMUNITY HOUSE v. CITY OF BOISE
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-
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-
 COMMUNITY HOUSE v. CITY OF BOISE 18451
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-
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. 18439) This misses the critical distinction between Justice
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
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.
18452 COMMUNITY HOUSE v. CITY OF BOISE
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
5
Justice O’Connor observed:
An educator can use virtually any instructional tool, whether it
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.
 COMMUNITY HOUSE v. CITY OF BOISE 18453
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
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.
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.
18454 COMMUNITY HOUSE v. CITY OF BOISE
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.