Monday, November 13, 2006
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Ninth Circuit: No Church Services at Shelter in City-Owned Building
By KENNETH OFGANG, Staff Writer
The First Amendment does not permit religious services at a homeless shelter operated by a nonprofit group on premises leased from the public, the Ninth U.S. Circuit Court of Appeals ruled Thursday.
A divided panel said several plaintiffs who sued the City of Boise, Idaho were entitled to a preliminary injunction barring worship services and other religious activities at Community House, which includes both a homeless shelter and transitional housing in a 34,000 square foot building.
The court also ordered that the city reopen the shelter to the women and children who lived there before it was converted to a men-only shelter last year.
Latest Turn
The ruling is the latest turn in a long-running dispute involving Community House, Inc., a secular nonprofit that used to operate the facility; the city; and Boise Rescue Mission Ministries, a religious nonprofit that operates several homeless shelters in Boise and Nampa.
CHI ran the facility from 1992 to 2004, when the city—claiming mismanagement—terminated the $1-a-year lease and took over operations. The city then opened a competitive bidding process that resulted in an agreement with Boise Rescue Mission Ministries.
The Christian group agreed to pay $1 per year for five years to lease the building, which the city said was worth $2.5 million. The city also gave the group a 20-month option to buy the property for $2 million.
CHI and several individuals filed suit, challenging the religious activities conducted at the shelter. They also claimed that the conversion of the shelter from a family facility to an all-male shelter violated the Fair Housing Act.
U.S. District Judge B. Lynn Winmill agreed with the plaintiffs in part, granting a limited injunction that allowed the ministry to continue holding services but prohibiting it from requiring those who did not attend to give an explanation of their absence in order to obtain food or shelter.
Winmill also ordered the city to find new housing for displaced women, children and families because the temporary housing the city had provided was too close to registered sex offenders.
But Senior Judge David Thompson, writing for the Ninth Circuit, said the injunction did not go far enough.
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” in violation of the Establishment Clause, Thompson wrote.
The case, Thompson went on to write, is distinguishable from those holding that the mere lease of a public building to a private group does not mean that the actions of the private group are attributable to the government.
Boise did not merely lease the shelter to a religious organization, it subsidized the organization’s activities by granting it a nominal rent along with an option to buy the building for less than it was worth, the judge said.
“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,” Thompson wrote.
Insufficient Evidence
The judge also concluded that the defendants failed to justify the conversion of the shelter to an all-male facility. The assertion that mixing men, women, and children made the shelter more dangerous was unsupported by evidence, Thompson said, while observing that the defendants can present such evidence at trial.
Senior Judge A. Wallace Tashima joined in the opinion.
Judge Consuelo Callahan dissented in part. She argued that there was sufficient evidence of a security issue to support the “temporary dislocation of homeless women,” or at least to require additional hearings before ordering that women and children be allowed to return to the facility, and that the religious activities at the shelter were not attributable to the city.
Los Angeles attorney Brent D. Sokol authored an amicus brief for the Anti-Defamation League and Americans United for Separation of Church and State.
The case is Community House, Inc. v. City of Boise, 05-35195.
Copyright 2006, Metropolitan News Company