Appeal from the United States District Court for the District of Idaho Edward J. Lodge, District Judge, Presiding D.C. No. 1:08-cv-00205-EJL-CWD
The opinion of the court was delivered by: Graber, Circuit Judge:
Argued and Submitted July 12, 2011-San Francisco, California
Before: Sidney R. Thomas and Susan P. Graber, Circuit Judges, and James V. Selna, District Judge.*fn1
We consider the extent of the protection afforded by the Fair Housing Act ("FHA"), 42 U.S.C. §§ 3601-3631, against religious discrimination. Defendant Boise Rescue Mission Ministries, a non-profit Christian organization, operates a residential drug treatment program and, at the time relevant to this appeal, two homeless shelters in Boise, Idaho. Plaintiffs Janene Cowles, Richard Chinn, and Intermountain Fair Housing Council allege that Defendant engages in religious discrimination in providing shelter and residential recovery services, in violation of the FHA. The district court granted summary judgment to Defendant, and we affirm.
FACTUAL AND PROCEDURAL HISTORY
Defendant is an Idaho non-profit corporation, originally incorporated as "Christ's Gospel Mission, Inc.," for the purposes of "provid[ing] for the worship of God, the teaching and preaching of the Word of God, the winning of people to a personal faith in the Lord Jesus Christ and in the spiritual improvement of mankind, . . . and to extend the ministry of the Gospel unto all the earth." To those ends, Defendant operates two services that are relevant here. First, Defendant has a residential drug treatment program that provides an "intensive, Christ-based residential recovery program for people with chemical dependency or alcoholism." Second, Defendant runs homeless shelters to "return the poor, needy and homeless to society as self-sufficient, productive citizens." Plaintiff Cowles participated in the drug treatment program. Plaintiff Chinn stayed from time to time in Defendant's homeless shelters.
A. The Residential Drug Treatment Program and Plaintiff Cowles
Defendant requires all participants in its residential drug treatment program to be, or to desire to be, Christian. They must engage in a "wide range" of Christian activities, including worship services, Bible study, public and private prayer, religious singing, and public Bible reading. Defendant does not charge a fee for attending its drug treatment program.
A "Program Policies and Description" form and a "Pro-gram House Rules and Procedures" pamphlet apprise potential participants of what will be expected. The program entails a full year of treatment to help women*fn2 "to develop a relationship with God, themselves, and others through classes, counseling, and group interaction." The program description expressly states that participants must engage in Bible study and attend church services each week.
The program places heavy restrictions on participants' other activities. For example, they may not make phone calls or receive mail during the first month. Thereafter, they may receive visitors only on Sundays between 2 and 4 p.m. They may leave Defendant's facility only if the staff grants them a pass, which is earned through good behavior. Participants may not work for an outside employer during at least the first nine months of their treatment.
Cowles wrote a letter to Defendant in November 2005. She stated that she had been charged with possession of methamphetamine. The judge presiding over her criminal proceeding sentenced her to a year in the county jail, but she recommended that Cowles enroll in Defendant's drug treatment program. If Cowles enrolled in the program, the judge stated that she would order Cowles' release on probation pending her successful completion of the program. Otherwise, Cowles had to serve out her sentence.
In her letter to Defendant, Cowles gave the impression that she understood the religious nature of Defendant's program and that she desired to participate in the program because of its religious nature. She wrote: "I am searching for guidance and knowledge and peace. When I have had God in my life things weren't perfect but I had an inner peace I miss very much. . . . I am focused on changing my life through God and spiritual growth." Cowles asked Defendant to put her on the program's waiting list and to contact her as soon as possible.
Defendant's staff interviewed Cowles on March 2, 2006. They told Cowles about the program's rules and "intense, faith-based curriculum." They also provided Cowles with a copy of the program description. Defendant formally accepted Cowles into its drug treatment program on March 7.
True to the description of its program, Defendant required Cowles to participate in religious activities.*fn3 She could not read secular books or listen to secular music. She had to attend church every Sunday and, if she refused to attend Defendant's services, she could go to one of only four other nearby churches that Defendant had approved. She also had to attend daily services, where she had to sing hymns in the choir, pray silently and out loud, recite Bible verses, and allow the "laying on of hands." On a regular basis, she was required to "cast out demons" in the facility, using oil and holy water. On May 4, 2006, Plaintiff had to participate in the National Day of Prayer at the Idaho Capitol Building.
On three occasions Cowles became so upset by these practices that she ran out of the room crying. At those times, Defendant's Women's Ministry Director told Cowles that she would go to Hell and would be left behind if she did not "accept Jesus Christ as her personal savior." When Cowles asked if she could graduate from the program without converting to Christianity, Defendant's staff told her that graduation without conversion had "never happened."
At times Cowles heard Defendant's staff ridicule Mormons. The pastor who led many of Defendant's religious services called Mormons "crazy." When a Mormon woman entered the program, a staff member vowed to "straighten her out." Within a month, the woman was baptized into Defendant's faith.
In late May or early June 2006, about three months after her acceptance into the program, Cowles asked to transfer to a different, non-religious treatment facility. Purportedly in retaliation for making that request, the Women's Ministry Director restricted Cowles' activities and required that she place all of her telephone calls to her lawyer on speaker phone so that Defendant's staff could listen to them. Other participants told Cowles that Defendant's ...