In Intermountain Fair Housing Council v. Boise Rescue Mission Ministries, Case No. 10-35519, 2011 WL 4347029 (9th Cir. Sept. 19, 2011), the court of appeals held that a Christian-based drug treatment program and homeless shelter did not violate the religious exemption to the Fair Housing Act’s (FHA) anti-discrimination provision by giving preference to persons of its own religion. Given the option by a judge, the plaintiff, Janene Cowles, enrolled in the residential drug treatment program rather than serve out her sentence. The court found that she gave the defendant the impression that she desired to participate in the drug treatment program due to its religious nature, but once enrolled in the program she objected to the mandatory religious activities. She was sent back to jail. Eventually, she filed a complaint with the Federal Department of Housing and Urban Development (HUD), alleging that she was discriminated against because of her sex and religion.

Another plaintiff, Richard Chinn, filed a complaint against the defendant’s homeless shelters, also alleging religious discrimination. Although the defendant welcomed people of all faiths, it required guests to acknowledge the religious nature of the shelter and its rules. The defendant also offered religious activities at its shelters, which Mr. Chin argued were required for full treatment, including regular food service. The court found that this religious exemption within the FHA was applicable: “Nothing in [the FHA] shall prohibit a religious organization ... from limiting the sale, rental or occupancy of dwellings which it owns or operates for other than a commercial purpose to persons of the same religion, or from giving preference to such persons, unless membership in such religion is restricted on account of race, color or national origin.” 42 U.S.C. § 3607(a).

The plaintiffs argued that the exception should not apply to the shelter, because homeless people who attend the rescue mission’s religious services are not necessarily Christian, but the court held that the defendant reasonably could assume that “those who come to its shelters, who read and complete the admission form that apprises them of defendant’s religious purposes, and who thereafter attend its religious services are Christian.” With respect to the drug treatment program, the court ruled that defendant had every reason to believe that Ms. Cowles was Christian, based on her letter and the program’s advertised character, but added that “[r]equiring participants to convert to Christianity before permitting them to graduate from the program constitutes ‘giving preference’ to Christian participants,” consistent with the FHA. The court did not consider an Establishment Clause challenge to the program or shelter because it was not raised. It also declined to address the defendant’s argument that the definition of a “dwelling” excludes a free homeless shelter, an argument the Secretary of HUD opposed in the amicus brief HUD filed in the case.