UNIT V. DEFENSES TO INTENTIONAL DISCRIMINATION

Canons of Construction

A. Constitutional Defenses

1. Religion

SWANNER v. ANCHORAGE EQUAL RIGHTS COMM’N874 P.2d 274 (Alaska 1994)

PER CURIAM: Swanner, d/b/a Whitehall Properties, appealed the superior court’s decision which affirmed the Anchorage Equal Rights Commission’s (AERC) order that Swanner’s policy against renting to unmarried couples constituted unlawful discrimination based on marital status. Swanner … contends that enforcing the applicable statute and municipal ordinance violates his constitutional right to free exercise of his religion under the U.S. and Alaska Constitutions. ... We hold that … enforcing the fair housing laws does not deprive him of his right to free exercise of his religion. …

FACTS AND PROCEEDINGS BELOW. Joseph Bowles, William F. Harper, and Dee Moose filed three separate complaints of marital status discrimination in the rental of real property in Anchorage. The complainants alleged that Tom Swanner, doing business as Whitehall Properties, violated municipal and state anti-discrimination laws, Anchorage Municipal Code (AMC) 5.20.020 and AS 18.80.240. Swanner refused to rent or allow inspection of residential properties after learning that each complainant intended to live with a member of the opposite sex to whom he or she was not married.

While Swanner did not specifically recall having conversations with Bowles, Harper, or Moose, he readily admitted having a policy of refusing to rent to any unmarried couple who intend to live together on the property. Swanner’s refusal to rent or show property to unmarried couples is based on his Christian religious beliefs. Under Swanner’s religious beliefs, even a non-sexual living arrangement by roommates of the opposite sex is immoral and sinful because such an arrangement suggests the appearance of immorality. It is undisputed that Swanner rejected each complainant as a tenant because of this policy and for no other reason. …

DISCUSSION: … Enforcement of AMC 5.20.020 and AS 18.80.240 Does Not Violate Swanner’s Constitutional Right to the Free Exercise of His Religion Under the U.S. Constitution. Swanner contends that enforcement of AMC 5.20.020 and AS 18.80.240 against him has a coercive effect on the free exercise of his religious beliefs. He believes that compliance with these laws forces him to choose between his religious beliefs and his livelihood. He requests that we accommodate his religious beliefs by creating an exemption to the statute and ordinance. The AERC responds that “it is not Swanner’s religious beliefs per se which run afoul of our anti-discrimination laws, but rather his actions and conduct in a commercial setting.”

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The First Amendment to the U.S. Constitution provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; . . .” The Free Exercise Clause applies to the states by its incorporation into the Fourteenth Amendment. It grants absolute protection to freedom of belief and profession of faith, but only limited protection to conduct dictated by religious belief. See Employment Div., Dep’t of Human Resources v. Smith, 494 U.S. 872 (1990) (narrowing the scope of religious exemptions under the Free Exercise Clause by upholding a statute that criminalized peyote use, as applied to Native American religious ceremonies).

Swanner claims that we should apply the “compelling state interest” test set forth in Sherbert v. Verner, 374 U.S. 398 (1963), to determine whether the laws at issue violate his right to free exercise of religion under the U.S. Constitution.5 However, in Smith, the U.S. Supreme Court expressly rejected applying the Sherbert test where the law being challenged is generally applicable, or, in other words, where the law is not directed at any particular religious practice or observance.6 “[A] law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice.” Church of Lukumi Babalu Aye v. City of Hialeah, 113 S. Ct. 2217, 2226 (1993) (citing Smith, 494 U.S. 872).7 “Neutrality and general applicability are interrelated... . Failure to satisfy one requirement is a likely indication that the other has not been satisfied. A law failing to satisfy these requirements must be justified by a compelling governmental interest and must be narrowly tailored to advance that interest.” Id.

The first step in determining whether a law is neutral is whether it discriminates on its face. “A law lacks facial neutrality if it refers to a religious practice without a secular meaning discernable from the language or context.” Id. Neither the ordinance nor the statute contain any language singling out any religious group or practice.

Even when a law is facially neutral, however, it may not be neutral if it is crafted to impede particular religious conduct. Id. These laws clear that hurdle as well. The

5 Under this balancing test, a law that incidentally burdens a religious practice must be justified by a compelling governmental interest. See Sherbert, 374 U.S. at 403, 406.

6 The Court stated:

We conclude today that the sounder approach, and the approach in accord with the vast majority of our precedents, is to hold the test inapplicable to such challenges. The government’s ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, “cannot depend on measuring the effects of a governmental action on a religious objector’s spiritual development.” To make an individual’s obligation to obey such a law contingent upon the law’s coincidence with his religious beliefs, except where the State’s interest is “compelling” – permitting him, by virtue of his beliefs, “to become a law unto himself,” – contradicts both constitutional tradition and common sense.

7 In Church of Lukumi Babalu Aye v. City of Hialeah, 113 S. Ct. 2217 (1993), the Court used the Free Exercise Clause to strike down city ordinances that regulated animal sacrifice, but effectively prohibited only sacrifice practices of the Santeria religion. The Court held the ordinances failed to satisfy the Smith requirements because they were not neutral, generally applicable, nor narrowly tailored, and did not advance compelling governmental interests.

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purpose of AMC 5.20.020 and AS 18.80.240 is to prohibit discrimination in the rental housing market. Swanner does not claim that the purpose of the laws is to discriminate against people based on religion; in fact, he contends that the laws do not even cover this kind of discrimination. Therefore, the laws satisfy the requirement of neutrality. Additionally, these laws are generally applicable. They apply to all people involved in renting or selling property, and do not specify or imply applicability to a particular religious group. Therefore, at least under the general rule, no compelling state interest is necessary.

Smith provides one ground for judicial exemptions from compliance with neutral laws of general applicability. A court may exempt an individual from a law where the facts present a hybrid situation where an additional constitutionally protected right is implicated. Like the appellant in Smith, Swanner does not contend that the laws in question here infringe on any constitutional right other than his right to free exercise of religion. Consequently, this case does not present such a “hybrid” situation.

We conclude that enforcing AMC 5.20.020 and AS 18.80.240 against Swanner does not violate his right to free exercise of religion under the U.S. Constitution.

Enforcement of AMC 5.20.020 and AS 18.80.240 Does Not Violate Swanner’s Constitutional Right to the Free Exercise of His Religion Under the Alaska Constitution. Swanner does not dispute that the ordinance and statute are generally applicable and neutral under Smith, but asserts that “this decision does not mandate use of a less restrictive standard by state courts in interpreting state constitutional protection.” Swanner is correct in asserting that a state court may provide greater protection to the free exercise of religion under the state constitution than is now provided under the U.S. Constitution. Thus, even though the Free Exercise Clause of the Alaska Constitution is identical to the Free Exercise Clause of the U.S. Constitution, we are not required to adopt and apply the Smith test to religious exemption cases involving the Alaska Constitution merely because the U.S. Supreme Court adopted that test to determine the applicability of religious exemptions under the U.S. Constitution. We will apply Frank v. State, 604 P.2d 1068 (Alaska 1979), to determine whether the anti-discrimination laws violate Swanner’s right to free exercise under the Alaska Constitution.

In Frank v. State, we adopted the Sherbert test to determine whether the Free Exercise Clause of the Alaska Constitution requires an exemption to a facially neutral law. We held that to invoke a religious exemption, three requirements must be met: (1) a religion is involved, (2) the conduct in question is religiously based, and (3) the claimant is sincere in his/her religious belief. Once these three requirements are met, “religiously impelled actions can be forbidden only ‘where they pose some substantial threat to public safety, peace or order, or where there are competing governmental interests ‘of the highest order and ... [are] not otherwise served... .’” Seward Chapel, Inc. v. City of Seward, 655 P.2d 1293,1301 n.33 (Alaska 1982) (quoting Frank, 604 P.2d at 1070).

Swanner clearly satisfies the first and third requirements to invoke an exception to the laws under the Free Exercise Clause. No one disputes that a religion is involved here (Christianity), or that Swanner is sincere in his religious belief that cohabitation is a sin and by renting to cohabitators, he is facilitating the sin. However, the superior court held that he did not meet the second requirement that his conduct was religiously based

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because “nothing in the record permits a finding that refusing to rent to cohabiting unmarried couples is a religious ritual, ceremony or practice deeply rooted in religious belief.” Swanner’s claim that the superior court misinterpreted Frank v. State as limiting free exercise rights only to ritual or ceremony has merit. In Frank, we determined that the action at issue was a practice deeply rooted in religion. However, we did not intend to limit free exercise rights only to actions rooted in religious rituals, ceremonies, or practices. To meet the second requirement, a party must demonstrate that the conduct in question is religiously based; this determination is not limited to actions resulting from religious rituals. Swanner’s refusal to rent to unmarried couples is not without an arguable basis in some tenets of the diverse Christian faith, and therefore, his conduct is sufficiently religiously based to meet our constitutional test. Although Swanner meets the three preliminary requirements to invoke an exception to the anti-discrimination laws, the analysis does not end here.

As discussed previously, a religious exemption will not be granted if the religiously impelled action poses “some substantial threat to public safety, peace or order or where there are competing state interests of the highest order.” Frank. The question is whether Swanner’s conduct poses a threat to public safety, peace or order, or whether the governmental interest in abolishing improper discrimination in housing outweighs Swanner’s interest in acting based on his religious beliefs.

In our view, the second part of the test adopted in Frank is applicable here. Under this part of the Frank test, we must determine whether “a competing state interest of the highest order exists.” “The question is whether that interest, or any other, will suffer if an exemption is granted to accommodate the religious practice at issue.” Frank. The government possesses two interests here: a “derivative” interest in ensuring access to housing for everyone, and a “transactional” interest in preventing individual acts of discrimination based on irrelevant characteristics. Most free exercise cases, including Frank, involve “derivative” state interests. In other words, the State does not object to the particular activity in which the individual would like to engage, but is concerned about some other variable that the activity will affect. This can be contrasted with a “transactional” interest in which the State objects to the specific desired activity itself.

For example, in Frank, this court exempted a Central Alaska Athabascan Indian needing moose meat for a funeral potlatch from state hunting regulations. The State did not object to killing moose per se (indeed, it expressly allows moose hunting in season); the State’s derivative interest was in maintaining healthy moose populations. In the instant case, the government’s derivative interest is in providing access to housing for all. One could argue that if a prospective tenant finds alternative housing after being initially denied because of a landlord’s religious beliefs, the government’s derivative interest is satisfied. However, the government also possesses a transactional interest in preventing acts of discrimination based on irrelevant characteristics regardless of whether the prospective tenants ultimately find alternative housing.

We look to Prince v. Commonwealth of Massachusetts, 321 U.S. 158 (1943), as an analogy. In Prince, the U.S. Supreme Court refused to grant an exemption to child labor laws for children distributing religious literature. As in this case, the state had a transactional interest: preventing exploitation of children in employment. Thus, the state objected to child labor, the particular activity at issue, per se, not to an effect of that

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activity. The state legislature had prohibited children from working under certain conditions. Therefore, permitting any child to work under such conditions resulted in harming the government’s transactional interest. This transactional government interest does not involve a numerical cutoff below which the harm is insignificant unlike in Frank.

Similarly, in the instant case, the legislature and municipal assembly determined that housing discrimination based on irrelevant characteristics should be eliminated. See Hotel, Motel, Restaurant, Etc. Union Local 879 v. Thomas, 551 P.2d 942, 945 (Alaska 1976) (“The statutory scheme constitutes a mandate to the agency to seek out and eradicate discrimination in ... the rental of real property.”); Loomis Electronic Protection v. Schaefer, 549 P.2d 1341, 1343 (Alaska 1976) (recognizing the Alaska Legislature’s “strong statement of purpose in enacting AS 18.80, and its avowed determination to protect the civil rights of all Alaska citizens”). The existence of this transactional interest distinguishes this case from Frank and most other free exercise cases where courts have granted exemptions. The government’s transactional interest in preventing discrimination based on irrelevant characteristics directly conflicts with Swanner’s refusal to rent to unmarried couples. The government views acts of discrimination as independent social evils even if the prospective tenants ultimately find housing. Allowing housing discrimination that degrades individuals, affronts human dignity, and limits one’s opportunities results in harming the government’s transactional interest in preventing such discrimination, Under Frank, this interest will clearly “suffer if an exemption is granted to accommodate the religious practice at issue.”

The dissent attempts to prove that the state does not view marital status discrimination in housing as a pressing problem by pointing to other areas in which the state itself discriminates based on marital status. However, those areas are easily distinguished. The government’s interest here is in specifically eliminating marital status discrimination in housing, rather than eliminating marital status discrimination in general. Therefore, the other policies which allow marital status discrimination are irrelevant in determining whether the government’s interest in eliminating marital status discrimination in housing is compelling.

In the examples the dissent cites, treating married couples differently from unmarried couples is arguably necessary to avoid fraudulent availment of benefits available only to spouses. The difficulty of discerning whose bonds are genuine and whose are not may justify requiring official certification of the bonds via a marriage document. That problem is not present in housing cases: as this case demonstrates, if anything, an unmarried couple who wish to live together are at a disadvantage if they claim to be romantically involved.

It is important to note that any burden placed on Swanner’s religion by the state and municipal interest in eliminating discrimination in housing falls on his conduct and not his beliefs. Here, the burden on his conduct affects his commercial activities. In U.S. v. Lee, 455 U.S. 252 (1982), the U.S. Supreme Court stated the distinction between commercial activity and religious observance:

When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith, are not to be superimposed on the statutory schemes which are binding on others in that activity.

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Swanner complains that applying the anti-discrimination laws to his business activities presents him with a “Hobson’s choice”—to give up his economic livelihood or act in contradiction to his religious beliefs. A similar argument was advanced in Seward Chapel, where Seward Chapel argued that applying the city zoning ordinances to prohibit construction of a parochial school impermissibly burdened the chapel’s free exercise rights. We concluded that “there has been no showing of a religious belief which requires members of Seward Chapel to locate in [a specific place]... . The inconvenience and economic burden of which Seward Chapel now complains is caused largely by the choice to build in [a specific place]... .”

Swanner has made no showing of a religious belief which requires that he engage in the property-rental business. Additionally, the economic burden, or “Hobson’s choice,” of which he complains, is caused by his choice to enter into a commercial activity that is regulated by anti-discrimination laws. Swanner is voluntarily engaging in property management. The law and ordinance regulate unlawful practices in the rental of real property and provide that those who engage in those activities shall not discriminate on the basis of marital status.. Voluntary commercial activity does not receive the same status accorded to directly religious activity. Cf. Frank (exempting an Athabascan Indian from state hunting regulations “to permit the observance of the ancient traditions of the Athabascans”).

“As [James] Madison summarized the point, free exercise should prevail in every case where it does not trespass on private rights or the public peace.” Michael W. McConnell, Free Exercise Revisionism and the Smith Decision, 57 Chi. L. Rev. 1109, 1145 (1990). Because Swanner’s religiously impelled actions trespass on the private right of unmarried couples to not be unfairly discriminated against in housing, he cannot be granted an exemption from the housing anti-discrimination laws. Therefore, we conclude that enforcement of AMC 5.20.020 and AS 18.80.240 against Swanner does not violate his right to free exercise of religion under the Alaska Constitution. ...

MOORE, Chief Justice, dissenting: Article I, section 4 of the Alaska Constitution declares that “no law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof.” As the majority correctly recognizes, this provision may provide greater protection of free exercise rights than is now provided under the U.S. Constitution. Accordingly, while the U.S. Supreme Court has adopted a new test to analyze free exercise claims such as the one at issue here, the majority agrees that we will continue to apply the compelling interest test in interpreting the free exercise clause of the Alaska Constitution.

Our decision in Frank sets forth the framework from which we must determine whether AMC 5.20.020 and AS 18.80.240 violate Swanner’s right to the free exercise of his religion. As we stated in Frank, “no value has a higher place in our constitutional system of government than that of religious freedom.” For this reason, a facially neutral statute or ordinance which interferes with religious-based conduct must be justified by a compelling state interest. Absent such an interest, our constitution requires an exemption from the laws at issue to accommodate religious practices.

The majority acknowledges that Swanner’s actions fall within the ambit of the free exercise clause. Swanner has shown that his refusal to rent apartments to unmarried

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individuals who plan to live with a member of the opposite sex is based on his Christian faith, which strictly proscribes such cohabitation. No one questions the sincerity of his religious belief that he facilitates a sin by renting to unmarried individuals such as the complainants in this case. For this reason, Swanner’s religiously impelled conduct must be protected under Alaska law unless the AERC can show that the conduct poses “some substantial threat to public safety, peace or order,” or that there exist competing governmental interests “of the highest order” which are not otherwise served without limiting Swanner’s conduct. Frank. I do not believe the AERC has met its burden in this case. I would therefore grant Swanner an exemption to accommodate his religious beliefs.

First, I note that in determining that the governmental interest in this case is “of the highest order,” the majority announces an entirely new and unnecessary test examining the state’s “transactional” and “derivative” interests. Under this analysis, the majority concludes that the state has a transactional, or per se, interest in preventing “individual acts of discrimination based on irrelevant characteristics” which overrides Swanner’s free exercise rights in this case. Because the interest is “transactional,” the majority concludes that no evidentiary basis is required to show that rental housing for unmarried couples has become scarce. However, before the court would enforce the state’s “derivative” interest in “ensuring access to housing for everyone,” the AERC apparently would have to make an evidentiary showing that cohabitating couples have experienced hardship in finding available housing, i.e., that Swanner’s conduct poses a “substantial threat to public safety, peace or order.” Frank.

In my opinion, this amorphous analysis of the state’s interests ultimately will prove to be useless in resolving future free exercise cases. Even in this case, I do not believe it provides a useful distinction of the interests at issue. For example, the majority determines that the state has a per se objection to marital status discrimination in housing which overcomes Swanner’s free exercise rights. The majority defines this interest as that in “preventing acts of discrimination based on irrelevant characteristics.” Such an articulation of the state’s interest poses myriad questions. Who is to determine what is an “irrelevant” characteristic? Obviously, marital status is not “irrelevant” to Swanner. It is central to the question whether he will be committing a sin under the dictates of his religion. Is the legislative branch the final arbiter of relevancy or irrelevancy? Further, the discrimination at issue here is not based on innate “characteristics” but rather on the conduct of

potential tenants. While this conduct is worthy of some protection, it does not warrant the same constitutional protection given to religiously compelled conduct. I am not willing to place the right to cohabitate on the same constitutional level as the right to freedom from discrimination based on either innate characteristics – such as race or gender – or constitutionally protected belief, such as freedom of religion.

In addition, it remains unclear to me how the state’s “derivative” interests are to be identified. Here, that interest is defined with little explanation as being the state’s interest in “providing access to housing for all.” Does this mean the state has no per se objection to the fact that some individuals may have limited access to housing? In Frank, could it not be said that the state had a per se interest in enforcing its hunting regulations?

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In Frank, this court set forth a workable and sufficient guide to determine whether a governmental interest is sufficiently compelling to overcome an individual’s free exercise rights. It seems to me that the majority’s effort to expand this analysis adds little to the actual analysis of interests at stake. To the contrary, I see the majority’s expansion of Frank as little more than a strained effort to distinguish Frank from the present situation when such a distinction is not logically justified. In this effort, the majority totally ignores the record in this case, and it engages in a game where the “transactional” or “derivative” label attached to any given state interest predetermines the outcome of the case.

There is no governmental interest “of the highest order” to justify the burden on Swanner’s fundamental rights. Even applying the framework announced by the court in analyzing whether the state’s interest is “of the highest order,” I cannot agree with the court’s reasoning and resulting decision. In essence, the majority’s conclusion is that marital status discrimination constitutes such an affront to human dignity that the state has a per se obligation “of the highest order” to prevent it. Based on my analysis of free exercise jurisprudence and the issues surrounding marital status discrimination, I cannot conclude that eradication of marital status discrimination in the rental housing industry constitutes a governmental interest of such high order as to justify burdening Swanner’s fundamental constitutional rights.2 There can be no question that the state has a compelling interest in eradicating discrimination against certain historically disadvantaged groups. See, e.g, Bob Jones University v. U.S., 461 U.S. 574, 593-95 (1983) (racial discrimination); Roberts v. U.S. Jaycees, 468 U.S. 609, 625 (1984) (gender discrimination). This compelling interest has been found to exist based on a determination that the discrimination at issue is so invidious to personal dignity and to our concept of fair treatment as to warrant strict protection. There is no question that Swanner’s right to freely exercise his religion could and should be burdened if he engaged in such discrimination as a result of his religious beliefs. This fact does not mean, however, that every form of discrimination is equally invidious or that the state’s interest in preventing it necessarily outweighs fundamental constitutional rights. Rather, the cases which have upheld an imposition on free exercise have articulated certain specific reasons that some forms of discrimination are of particular governmental interest and deserving of heightened judicial scrutiny. In Bob Jones University v. U.S., 461 U.S. 574 (1983), for example, the Supreme Court refused to grant tax-exempt status to schools that maintained racially discriminatory policies under

2 Significantly, the majority cites no cases to support the proposition that the state has a compelling interest in eradicating marital status discrimination, particularly when the discrimination at issue must be balanced against interests of constitutional magnitude. Both Loomis Elec. Protection, Inc. v. Schaefer, 549 P.2d 1341 (Alaska 1976), and Hotel, Motel, Restaurant, Constr. Camp Employees and Bartenders Union Local 879 v. Thomas, 551 P.2d 942 (Alaska 1976), cite the general purpose statement of AS 18.80.200; however, neither case does so to establish the existence of a compelling state interest. Both cases involved gender discrimination, the eradication of which has been held to be a compelling interest, as I discuss infra. Neither case is applicable to the instant case, where marital status discrimination is involved and where the discriminating party is asserting a core constitutional freedom.

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their interpretation of the Bible. In doing so, the Court discussed this nation’s long history of officially sanctioned racial segregation and discrimination in education. It further noted that, since the late 1950s, every pronouncement of the Supreme Court and myriad Acts of Congress and Executive Orders attested to a national policy prohibiting such discrimination. It therefore concluded that “there can no longer be any doubt that racial discrimination in education violates deeply and widely accepted views of elementary justice.” Accordingly, the government’s interest in eradicating racial discrimination in education was found to be compelling. Similarly, in Roberts v. U.S. Jaycees, 468 U.S. 609 (1984), the Supreme Court declared that the state’s compelling interest in eradicating discrimination against its female citizens justified any minimal interference with an all-male organization’s freedom of expressional association. In analyzing the weight of the state’s interest, the Court discussed the invidious nature of gender bias, stating:

Discrimination based on archaic and overbroad assumptions about the relative needs and capacities of the sexes forces individuals to labor under stereotypical notions that often bear no relationship to their actual abilities. It thereby both deprives persons of their individual dignity and denies society the benefits of wide participation in political, economic, and cultural life.

Court also observed that society generally had recognized the importance of removing “the barriers to economic advancement and political and social integration that have historically plagued certain disadvantaged groups, including women.” Based on these conclusions, it was no stretch to find that the state possessed a compelling interest in eradicating gender discrimination, and that this interest was sufficient to overcome the Jaycees’ First Amendment claim. The majority today avoids engaging in any similar analysis of marital status discrimination to explain why or how it is so damaging to human dignity to become of such governmental import as to overcome a fundamental constitutional right.3 This analysis is critical. The majority cites no evidence that marital status classifications have been associated with a history of unfair treatment that would warrant heightened governmental protection. 4 To the contrary, I believe the law is clear that marital status 3 While the majority contends that its decision today affects only Swanner’s conduct, not his religious beliefs, I do not believe that the Alaska Constitution distinguishes so clearly between religious belief and religious conduct. See Frank, 604 P.2d at 1070 (because of the close relationship between conduct and belief, and because of the high value we assign to religious beliefs, religiously impelled actions can be forbidden only where they are outweighed by a compelling governmental interest). See also Wisconsin v. Yoder, 406 U.S. 205, 220 (1972) (“Belief and action cannot be neatly confined in logic-tight compartments.”); Smith, 494 U.S. at 893 (O’Connor, J., concurring) (“Because the First Amendment does not distinguish between religious belief and religious conduct, conduct motivated by sincere religious belief, like the belief itself, must therefore be at least presumptively protected by the Free Exercise Clause.”). I would hold that conduct that is motivated by sincere religious belief is presumptively protected by Article I, section 4.

4 The majority pronounces that “the government views acts of discrimination as independent social evils... .” This analysis ignores the specific issue here: discrimination in housing based on marital status. Had Swanner’s religious beliefs compelled him to discriminate based on characteristics such as race or gender, I clearly would vote to deny an exemption. However, I am

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classifications have been accorded relatively low import on the scale of interests deserving governmental protection. For instance, the government itself discriminates based on marital status in numerous regards, and there is no suggestion that this practice should be reexamined. Alaska law explicitly sanctions such discrimination. See, e.g., AS 13.11.015 (intestate succession does not benefit unmarried partner of decedent); AS 23.30.215(a) (workers’ compensation death benefits only for surviving spouse, child, parent, grandchild, or sibling); Alaska R. Evid. 505 (no marital communication privilege between unmarried couples); Serradell v. Hartford Accident & Indemn. Co., 843 P.2d 639, 641 (Alaska 1992) (no insurance coverage for unmarried partner under family accident insurance policy).

In addition, marital status classifications have never been accorded any heightened scrutiny under the Equal Protection Clause of either the federal or the Alaska Constitutions. Disparate treatment of individuals based on classifications such as race, on the other hand, are reviewed under the highest scrutiny. Gender-based classifications are similarly analyzed under a heightened level of scrutiny at the federal level. The sliding scale approach to equal protection analysis under the Alaska Constitution similarly applies a heightened level of scrutiny to laws burdening racial minorities or other suspect classifications.

At the federal level, the eradication of marital status discrimination in the housing context clearly has not been treated as a compelling interest. Neither the Federal Fair Housing Act, nor the Federal Civil Rights Act, would prohibit the precise form of marital status discrimination at issue here, unless it was being used as a pretext for a more egregious form of discrimination, such as that based on race. See Marable.

My research has not revealed a single instance in which the government’s interest in eliminating marital status discrimination has been accorded substantial weight when balanced against other state interests, let alone fundamental constitutional rights. I find nothing to suggest that marital status discrimination is so invidious as to outweigh the fundamental right to free exercise of religion.

The majority comments that its result today is justified because Swanner’s right to the free exercise of his religious beliefs must be accorded less weight since he has entered the commercial arena. As discussed above, it is well-accepted that an individual’s right to religious freedom will not and cannot always override other interests. See, e.g., U.S. v. Lee, 455 U.S. 252, 261 (1982) (rejecting Amish employer’s claim that imposition of social security taxes violated his free exercise rights). However, neither Lee nor any other case of which I am aware stands for the proposition that individuals like Swanner altogether waive their constitutional right to the free exercise of religion simply because a conflict between their religious faith and some legislation occurs in a commercial context. To the contrary, the Lee Court recognized that, even in a commercial setting, the state must justify its limitation on religious liberty by showing the limitation is “essential to accomplish an overriding governmental interest.” The AERC has simply failed to meet that burden here.

The majority suggests that Swanner’s constitutional rights must be accorded

not convinced that marital status discrimination is or should be treated as comparable in any way to race or gender discrimination.

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lesser weight because he voluntarily engages in the property management industry, and his right to engage in that business is not entitled to judicial protection. However, this court has stated that “the right to engage in an economic

endeavor within a particular industry is an ‘important’ right for state equal protection purposes.” State v. Enserch Alaska Constr., Inc., 787 P.2d 624, 632 (Alaska 1989). The ability to participate in a particular industry, such as rental property management, is therefore entitled to more protection under our state constitution than the majority acknowledges.

The majority incorrectly relies on Seward Chapel to arrive at its contrary conclusion. Unlike the present case, Seward Chapel did not involve a forced decision between giving up one’s livelihood or violating one’s religious beliefs. In Seward Chapel, we merely found that no religious belief required an exception to city zoning laws prohibiting the location of a parochial school on a specific site. No activity was totally prohibited; only the place in which it could be conducted was being regulated. I believe that there is a significant difference between the inconvenience placed upon Seward Chapel and the total abrogation of Mr. Swanner’s right to earn a living in his chosen profession while abiding by his sincerely held religious beliefs.

There is no basis in the record to conclude that an exemption in this case would create a substantial threat of harm. In Frank, this court required that the state establish precisely how its interest would suffer if an exemption was granted to accommodate the religious conduct at issue. Thus, even accepting that the government has a strong interest in assuring available housing, the AERC must show how this interest will suffer in real terms if an exemption is granted to Swanner.

I see no evidence whatsoever in the record to suggest that Swanner’s conduct poses a substantial threat to public safety, peace or order such that the burden on Swanner’s rights is justified. For this reason, I fail to see why an exemption to accommodate Swanner’s religious beliefs is not warranted. Mere speculation that housing for unmarried couples may become scarce if an exemption is granted is insufficient to establish a compelling governmental interest. In Frank, we specifically criticized the state for speculating, without any supporting data, that an exemption to moose hunting regulations for an Athabascan funeral potlatch would open the flood gates to widespread poaching. We stated: “‘Justifications founded only on fear and apprehension are insufficient to overcome rights asserted under the First Amendment.’” We further found that, since the state had not presented any evidence that so many moose would be taken for funeral potlatch ceremonies as to jeopardize appropriate population levels, it had not met its burden to justify curtailing the religious practice at issue.6

As in Frank, the record here is completely devoid of any evidence to suggest that there are so many landlords or property managers in Anchorage whose religious beliefs are identical to Swanner’s as to constitute a substantial threat to available housing. In a city the size of Anchorage, it is difficult to conclude based on intuition alone that housing availability for unmarried couples will become so scarce as to constitute a substantial threat to community welfare. If there were some persuasive evidence to support such a

6 Our requirement of evidentiary support for the state’s refusal to grant an exemption is well-supported by U.S. Supreme Court precedent.

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conclusion, I may well have arrived at a different conclusion today.

Conclusion. I believe Swanner has been presented with a Hobson’s choice of either complying with the law or abandoning the precepts of his religion. Since the government’s interest in this particular law does not outweigh Swanner’s fundamental religious rights, Swanner should be granted an exemption to accommodate his beliefs. The AERC relies on nothing more than a pure conclusion that the state has a compelling interest in preventing marital status discrimination in housing. It has not presented any evidence that an exemption in this case would result in a substantial threat to housing availability. Nor does it explain exactly what is so invidious about marital status discrimination as to make its proscription a governmental interest of the highest order, comparable with the state’s interest in eradicating racial or gender discrimination. For these reasons, I fail to see how a limited exemption for Swanner and others similarly situated is not justified. In my opinion, the analysis and result set forth in this case will return to haunt this court in future decisions.

DISCUSSION QUESTIONS: RELIGION AS DEFENSE

92. The issue in Swanner is likely to recur in any jurisdiction that has fair housing laws prohibiting discrimination against unmarried heterosexual cohabitants or on the basis of sexual orientation. Since Swanner was decided, the U.S. Supreme Court held RFRA unconstitutional, removing the most likely source of federal protection for religious landlords who object to these laws. However, several state courts, like Alaska’s, interpret their state constitutions to provide greater protection than does the First Amendment. In general, these states do some variation of the Sherbert test: interference with free exercise of religion is only permissible where the state law in question is narrowly tailored to a compelling state interest. Which Swanner opinion is more convincing about whether this test is met by the statute in question?

93. What arguments can you see about whether a landlord’s free exercise claim should depend at all on how many units the landlord has on the market?

94. The list below contains several types of conduct in which a prospective tenant might engage. Suppose a landlord wishes to exclude the tenant because the conduct is contrary to the landlord’s sincerely-held religious beliefs. Which conduct on the list gives the landlord relatively stronger claims and which relatively weaker?

a. Public statements denigrating the landlord’s religion. b. Interfaith marriage.c. Inter-racial marriage.d. Religious ceremonies that the landlord considers idol worship.e. Same-sex sexual behavior on the premises.f. Advocacy of gay rights.g. Having an abortion.h. Proselytizing for a religion different from that of the landlord.

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2. Privacy

STATE ex re. SPRAGUE v. CITY OF MADISON1996 WL 544099 (Wisc. App. 1996)

SUNDBY, J.: Ann Hacklander-Ready and Maureen Rowe appeal from a decision affirming the Madison Equal Opportunity Commission’s (MEOC) Decision and Order which found that they refused to rent housing to Carol Sprague as their housemate because of her sexual orientation, in violation of §3.23(4)(a) of the Madison General Ordinances (MGO). … We conclude that the trial court correctly found that §3.23, MGO, unambiguously applied to housemates at the time this action arose. …

BACKGROUND. At all times relevant to this action Hacklander-Ready leased a four-bedroom house. … Maureen Rowe began living with Hacklander-Ready and paying rent. [Subsequently,] they advertised for housemates to replace two women who were moving out. They chose Sprague from among numerous applicants. They knew her sexual orientation when they extended their offer to her. Sprague accepted their offer…. However, the following day Hacklander-Ready informed Sprague that they were withdrawing their offer because they were not comfortable living with a person of her sexual orientation.

Sprague filed a complaint with MEOC alleging that appellants discriminated against her on the basis of sexual orientation…. The administrative law judge agreed and awarded Sprague [damages], together with costs and reasonable attorney’s fees. Appellants appealed to MEOC. … MEOC vacated the hearing examiner’s [decision] on the grounds that the Madison City Council (City Council) intended to exempt roommate arrangements from the ordinance. MEOC did not state its reasons for this conclusion, nor did it address the legal arguments the parties raised.

…[T]he trial court reversed MEOC’s order. The court found that the language of the ordinance was “crystal clear” and that MEOC had jurisdiction to provide Sprague with relief. The trial court retained jurisdiction and remanded the matter to MEOC, [which] awarded Sprague [damages,] costs and reasonable attorney’s fees.

APPLICABLE ORDINANCES. At the time of the events in issue, §3.23, MGO, provided:

(1) Declaration of Policy. The practice of providing equal opportunities in housing ... without regard to ... sexual orientation ... is a desirable goal of the City of Madison and a matter of legitimate concern to its government ... In order that the peace, freedom, safety and general welfare of all inhabitants of the City may be protected and ensured, it is hereby declared to be the public policy of the City of Madison to foster and enforce to the fullest extent the protection by law of the rights of all its inhabitants to equal opportunity to ... housing....

(2)(b) “Housing” shall mean any building, structure, or part thereof which is used or occupied, or is intended, arranged or designed to be used or occupied, as a residence, home or place of habitation of one or more human beings, including a mobile home…. Such definition of “housing” is qualified by the exceptions contained in Section 3.23(4)(a).

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(4) It shall be an unfair discrimination practice and unlawful and hereby prohibited: (a) For any person having the right of ownership or possession or the right of transfer, sale, rental or lease of any housing, or the agent of any such person, to refuse to transfer, sell, rent or lease, or otherwise to deny or withhold from any person such housing because of ... sexual orientation .... (b) Nothing in this ordinance shall prevent any person from renting or leasing housing, or any part thereof, to solely male or female persons if such housing or part thereof is rented with the understanding that toilet and bath facilities must be shared with the landlord or with other tenants.

DECISION. … Sprague claims that §3.23, MGO, was intended to apply to housemate arrangements.1 The interpretation of a statute or ordinance is a question of law which we decide without deference to the trial court. Where a statute is unambiguous there is no need to go beyond the clear language of the statute.

Section 3.23(4), MGO, unambiguously prohibits any person having right of rental to refuse to rent to any person because of the person’s sexual orientation. Hacklander-Ready concedes that she held the lease to the house and that she had the right to rent the property to others. Further, she and Rowe admit that the sole reason they withdrew their offer was Sprague’s sexual orientation. Finally, the room that appellants sought to rent falls within the definition of housing … as a part of a building intended as a place of habitation for one or more human beings.

While appellants correctly argue that a statute is ambiguous if it may be construed in different ways by reasonably well-informed persons, we fail to see any reasonable interpretation that would make §3.23, MGO, inapplicable in this case. Appellants also correctly note that a court may resort to construction if the literal meaning of a statute produces an absurd or unreasonable result. However, applying §3.23(4) to the rental of a room within a house with shared common areas is not unreasonable or absurd. Because we find that the ordinance clearly and unambiguously applies to the subleasing of housing by a person having the right of rental, our inquiry in this respect is at an end.

Appellants argue that to apply the ordinance to the lease of housing by a tenant to a housemate makes §3.24(4)(a), MGO, unconstitutional in its application. … Appellants cite many cases which they argue support their constitutional challenge: NAACP v. Alabama, 357 U.S. 449 (1958); Griswold v. Connecticut, 381 U.S. 479 (1965); … Moore v. City of East Cleveland, 431 U.S. 494 (1977)…. However, those cases deal either with the right to privacy in the home or family or the right to engage in first amendment activity free of unwarranted governmental intrusion. Appellants gave up their unqualified right to such constitutional protection when they rented housing for profit. The restrictions placed by the Madison City Council on persons who rent housing for profit are not unreasonable and do not encroach upon appellant’s constitutional protections. We therefore reject appellants’ challenge to the constitutionality of §3.24, MGO, as applied. …

1 …[S]ubsequent to the commencement of this action, the Madison City Council amended the Equal Opportunities Ordinance by adding §3.23(c), MGO, which states, “Nothing in this ordinance shall affect any person’s decision to share occupancy of a lodging room, apartment or dwelling unit with another person or persons.”

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Finally, appellants contend that Sprague’s inquiries as to whether the household would respect her sexual orientation constituted a waiver of her rights under §3.23, MGO. To hold that a prudent inquiry about the environment in which one will live waived the protections afforded by §3.23, MGO, would be an unreasonable construction of the ordinance. We therefore hold that by her inquiries Sprague did not waive her rights under the ordinance. …

DISCUSSION QUESTIONS: PRIVACY

95. The Madison ordinance at issue in Sprague allows sex discrimination in rental housing where “toilet and bath facilities must be shared….” Does the rationale for this exception apply to discrimination on the basis of sexual orientation as well? What is the significance of the amendment described in footnote 1?

96. Is the discussion of waiver in the last paragraph of Sprague consistent with the reasoning of Frazier (97-101)?

97. The cases appellants rely on for their privacy argument in Sprague include NAACP v. Alabama (establishing that state cannot insist on getting membership lists of political organizations); Griswold (establishing right of married people to use contraception); and Moore (establishing right to share housing with blood relatives). Do these cases seem to support the sort of privacy interest claimed here? Should there be a right to choose the people with whom you share living space?

B. Non-Statutory Defenses

1. Defenses to Sex Discrimination

UNITED STATES v. REECE457 F. Supp. 43 (D. Mont. 1978)

BATTIN, District Judge: This case arose out of a fair housing complaint filed with the Secretary of Housing and Urban Development (“HUD”) by two airmen stationed at Logan Field near Billings, Montana, alleging that they were denied housing in an apartment owned by the defendants on the basis of race. ... Discovery undertaken pursuant to this complaint led the plaintiff to file an amended complaint alleging that, in addition to the racial discrimination outlined above, defendant Cleone Reece has maintained certain policies which allegedly discriminate on the basis of sex in violation of 42 U.S.C. §3604. Presently pending is the motion of the United States for partial summary judgment on the issues of sex discrimination ....

[T]he amended complaint alleges that Cleone Reece has engaged in a pattern or practice of sex discrimination.... The allegation is based on statements by Cleone Reece in her deposition and answers to interrogatories, and admissions made in defendant’s brief, to the effect that defendant refused to rent certain apartments to single women without cars, and that defendant did not consider alimony and child support payments in

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determining whether a divorced woman would meet the defendant’s requirements regarding ability to pay rent.

Defendant apparently does not dispute the fact that she adheres to the above-described policies. However, she does deny that the policies contravene the provisions of 42 U.S.C. §3604.... In particular, defendant argues that she requires certain of her single woman tenants to have cars for their own protection,12 and that she doesn’t discriminate against divorced women.

It is somewhat difficult to perceive the impact of defendant’s alimony-child support argument, since it has been poorly briefed by defense counsel. The only defense offered is a statement in Cleone Reece’s unsigned deposition to the effect that divorced women “are sometimes the best pay.” I find that this statement is insufficient to outweigh the fact that the defendant’s requirement that potential tenants “qualify” by demonstrating an economic ability to pay rent is applied in such a manner as to place an unequal burden on women applicants. I therefore conclude that defendant has offered no legal defense to this issue, and that summary judgment should be granted based on the factual admissions of the defendant.

Defendant’s policy toward single women is more clearcut: she simply does not rent certain of her apartments to single women unless they have cars. It is not denied that a similarly situated male, i.e., a single man without a car, would not be disqualified on that basis. The defendant attempts to justify this approach by stating that single women without cars are excluded from renting the apartments in question because the neighborhood in which the apartments are situated is poorly lit, and that the risk of assault or rape “or worse” against these women in walking to and from the apartments is great. I find this defense to be insufficient as a matter of law. A violation of the Fair Housing Act can be proved without establishing a malevolent or unlawful intent. Since this is so, an allegedly benign motivation, especially one as paternalistic and overbroad as the one presented here, cannot provide a defense.

This is simply a case where the plaintiff’s prima facie case is made by the undisputed testimony of the defendants’ depositions, briefs, and answers to interrogatories. Since the defendant has offered no defense sufficient to rebut the damaging impact of her own statements, I will grant summary judgment as to this issue.

DISCUSSION QUESTIONS

98. Wisc. Stat. §106.50(5m)(em)(2) allows people seeking roommates to advertise that they prefer roommates of a particular sex. It does not allow the same type of advertising for racial or religious preferences. What policies support this distinction? Would it be better to allow any type of discrimination in roommate advertising? No discrimination at all? HUD has similarly indicated it will not prosecute roommate ads that indicate a preference based on sex. Should HUD draw this distinction when the FHA does not?

12 The apartments in question are located in the area east of 19th Street North in Billings, Montana, an area allegedly poorly lit and otherwise poorly suited for single women walking alone.

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99. In Reece, the landlord claimed that the local neighborhood was unsafe for women without cars. Assuming that this is true, why shouldn’t a landlord be able to use safety as a reason to choose between potential applicants? Would it violate the FHA to simply tell women (but not men) without cars about the crime in the neighborhood?

BRAUNSTEIN v. DWELLING MANAGERS, INC.

476 F.Supp. 1323 (S. D. N.Y. 1979)

PIERCE, District Judge: This is an action brought by four single parents and their respective four children who claim that because of their sex they have been denied rental of two bedroom apartments in Manhattan Plaza, a federally-subsidized ... housing complex. Defendants are the owners and managers of Manhattan Plaza. …

The facts are undisputed. Defendants acknowledge that a single parent with a child of the same sex is restricted to rental of a one bedroom apartment whereas a single parent with a child of the opposite sex is permitted to rent a two bedroom unit. Defendants claim that they are enforcing a policy instituted by the New York City Department of Housing Preservation and Development (HPD), the municipal agency which supervises Manhattan Plaza. An affidavit from Ruth Lerner, Assistant Commissioner of HPD, agrees that this is HPD’s policy based on its interpretation of regulations promulgated by the agency. Defendants further maintain that the policy comports with federal guidelines.4 Plaintiffs, on the other hand, attack the policy as violating the Fair Housing Act ... and the equal protection and due process clauses of the Constitution.Fair Housing Act. Section 3604, enacted in 1968, was designed primarily to remedy racial discrimination in the rental or sale of housing. ... In 1974, the section was amended to prohibit sex discrimination also.

There are few cases deciding charges of sex discrimination, and detailing the parameters of the statute. The facts here present the Court with a case of first impression in defining the limits of sex discrimination under §3604. While sex discrimination is not specifically defined in the statute, cases construing similar language in Title VII ... have held that discrimination must involve “disparate treatment.” “[S]ex discrimination results when the opportunities or benefits offered . . .to one gender are less valuable or more restricted than those offered to the other.” DeLaurier v. San Diego Unified School District, 588 F.2d 674, 677 (9th Cir. 1978).

The Court does not find present in this case the requisite difference in treatment which would justify a finding of discrimination. A mother and daughter who reside together receive the same treatment as a father and son; neither family is eligible for rental of a two bedroom apartment. Since the essence of sex discrimination is the

4 As the local housing finance agency, the Department of Housing Preservation and Development has primary responsibility for supervision and management of Manhattan Plaza. HPD must comply with HUD regulations and is subject to audit and review by the federal agency. Criteria established by HUD provide “The bedroom size assigned should not require persons of the opposite sex other than husband and wife to occupy the same bedroom other than infants or very young children.”

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difference in treatment of the individual based on gender, and males and females receive similar treatment from the defendants, there is no sex discrimination.

An analogous situation was reviewed by the Fourth Circuit in a case in which plaintiff charged sex discrimination when she lost her job because of a municipal ordinance which banned commercial massages by members of the opposite sex. The court concluded that the statute was not discriminatory since “the restrictions imposed ... apply equally to males and females; neither can perform massages on customers who are members of the opposite sex.” Aldred v. Duling, 538 F.2d 637, 638 (4th Cir. 1976).9

Plaintiffs urge the Court to rely on the Title VII discrimination test recently set forth in City of Los Angeles Dep’t of Water and Power v. Manhart, 435 U.S. 702, 711 (1978), to wit: “whether the evidence shows ‘treatment of a person in a manner which but for that person’s sex would be different.’ “ Plaintiffs contend that “but for” their sex they would be housed in larger apartments. They argue that if all other circumstances remained constant and one of the plaintiffs were of the opposite sex, e.g., if a male parent with a male child were a female parent with a male child, that family would receive a larger apartment.

However, the Court finds that the variable which determines allocation of two bedroom apartments is not the sex of the individual plaintiffs, but the composition of the family unit. A female parent with a female child and a male parent with a male child receive one bedroom apartments; a female parent with a male child and a male parent with a female child receive two bedroom apartments. Distinctions based upon factors other than the individual’s sex do not constitute sex-based discrimination. See General Electric Co. v. Gilbert, 429 U.S. 125, 134-35 (1976).10

The Court concludes that defendants’ housing allocation procedure is gender-neutral, equally affecting both men and women. Accordingly, it does not constitute sex discrimination in violation of the Fair Housing Act.Equal Protection. Plaintiffs also charge that defendants’ housing policy classifies potential tenants and distributes apartments on the basis of gender in violation of the equal protection clause of the Constitution.11

9 Courts considering the legitimacy of legislation against bisexual massages within the context of Title VII have on occasion invalidated the ordinances. See Stratton v. Drumm, 445 F.Supp. 1305, 1312(D.Conn.1978) (effects of such ordinance coupled with realities of the massage business had a disproportionately detrimental impact on women); Cianciolo v. Members of City Council, 376 F.Supp. 719, 722-24 (E.D.Tenn.1974) (ordinance prohibiting bisexual massages was invalid since gender was not bona fide occupational qualification). See note 10 infra. In another Title VII action, male and female basketball coaches of the women’s team complained that they earned less than coaches of the men’s team. The court dismissed the complaint on the ground that “the disparity in treatment [was] not based on Plaintiffs’ sex.” Jackson v. Armstrong School Dist., 430 F.Supp. 1050, 1052 (W.D.Pa.1977); Accord, Kenneweg v. Hampton Township School Dist., 438 F.Supp. 575, 577 (W.D.Pa.1977).10 Neither has there been any showing that the facially neutral plan in this case discriminates against a particular gender in its effect. See General Electric Co. v. Gilbert, 429 U.S. 125, 136-37 (1976).11 Although the equal protection violation is urged upon the Court as a separate ground, it has of necessity been dealt with to a certain extent in the Court’s analysis of the Fair Housing Act. The

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At the outset, it should be noted that the policy by which defendants distribute apartments does not appear to be a gender-based classification of a type outlawed by the equal protection clause. The traditional equal protection case involves a classification that distinguishes broadly between males and females. In such cases, gender is often used “as an inaccurate proxy for other, more germane bases of classification.” Craig v. Boren, 429 U.S.190, 198 (1976).12 Yet, as has been stated previously, the underlying classification and determination of eligibility in the instant case rests on the composition of the family unit rather than the gender of the applicant. This is not a case where sex stereotyping is used as a convenient substitute for more accurate classifying criteria.

However, even if the Court were to agree that classification of the family unit and the allocation of living space were based upon gender, defendants’ housing policy would withstand equal protection scrutiny nevertheless. ... [T]he Supreme Court has held that to withstand equal protection scrutiny “classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.” Orr v. Orr, 440 U.S. 268, 279 (1979), quoting Califano v. Webster, 430 U.S. 313, 316-17 (1977).

Defendants contend that the objectives of their policy are twofold: to maximize the number of persons who may occupy subsidized housing and to reduce the per capita cost of such subsidy. Rent ... is determined as a percentage of total family income; the federal subsidy provides the difference between the rent an eligible tenant pays and the actual cost of the apartment.14 It is acknowledged that there is no Constitutional right to

court notes that in General Electric Co. v. Gilbert, 429 U.S. 125, 136 (1976), the Supreme Court held that the equal protection reasoning in Geduldig v. Aiello, 417 U.S. 484 (1974), was applicable to an action claiming gender-based discrimination under Title VII. In discussing sex discrimination under Title VII, the Supreme Court stated:

The concept of ‘discrimination,’ of course, was well known at the time of the enactment of Title VII, having been associated with the Fourteenth Amendment for nearly a century, and carrying with it a long history of judicial construction. When Congress makes it unlawful for an employer to ‘discriminate ... because of ... sex ...,’ without further explanation of its meaning, we should not readily infer that it meant something different from what the concept of discrimination has traditionally meant.

Id. at 145.12 The Supreme Court elaborated on the “proxy” theory as follows:

‘[A]rchaic and overbroad’ generalizations ... concerning the financial position of servicewomen, Frontiero v. Richardson, (411 U.S. 677, 689 n.23 (1973)), and working women, Weinberger v. Wiesenfeld, 420 U.S. 636 (1975), could not justify use of a gender line in determining eligibility for certain governmental entitlements. Similarly, increasingly outdated misconceptions concerning the role of females in the home rather than in the ‘marketplace and world of ideas’ were rejected as loose fitting characterizations incapable of supporting state statutory schemes that were premised upon their accuracy... . In light of the weak congruence between gender and the characteristic or trait that gender purported to represent, it was necessary that the legislatures choose either to realign their substantive laws in a gender-neutral fashion, or to adopt procedures for identifying those instances where the sex-centered generalization actually comported with fact.

Craig v. Boren, 429 U.S. 190, 198-99 (1976).14 According to the affidavit of Richard R. Kirk, Managing Director of defendant Dwelling Managers, Inc., in December 1978, there were 35 one bedroom apartments in Manhattan Plaza that were occupied by single parents with children of the same sex. Defendants calculate that if these 35 families were to occupy two bedroom apartments, the annual increase in subsidy would

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housing of a particular size or quality. In this context and given the need to maximize use of available apartment space, the government’s interest would best be served by allocating one bedroom apartments to all single parent families. ...

However, in allocating space in Manhattan Plaza, an exception has been carved out where the best interest of parent and child may require separate sleeping accommodations. Reasonable land use regulations are permissible if they protect the public health, safety, morals or general welfare. Euclid v. Ambler, 272 U.S. 365 (1926). The general welfare is not to be narrowly construed; it embraces abroad range of governmental purposes.

In specifying the public interest and general welfare they wish to protect, defendants have argued persuasively that the healthy psycho-social and sexual development of single parents and their children of the opposite sex are best served when each family member has his or her own bedroom.15 Moreover, they claim that individual sleeping arrangements reduce the likelihood of incest and problems relating to gender misidentification. Common societal experience and conventional wisdom confirm that beyond a certain age children ought not to share the same bedroom with a person of the opposite sex.

Plaintiffs respond that empirical research on the potential psychological harm of having a single parent and child of the opposite sex share the same bedroom is limited. However, they do not refute the contention that a significant amount of social and emotional maldevelopment may be avoided where single parents and children of the opposite sex are given two bedroom apartments.

The Court recognizes plaintiffs’ contention that the privacy need of each family member would best be served if all single parent families with one child were given two bedroom apartments. However, limited federal and municipal resources preclude this alternative. Yet, maximizing use of federal housing subsidies and protecting the physical

be $40,740. Thus, defendants claim that “[o]ccupancy of two-bedroom apartments by other than single parents obviously permits a greater number of persons to enjoy the benefits of the [federal] subsidy, and also positively tends, because of the greater number of adults, to reduce the amount of the subsidy because a certain portion of families with two adults will be comprised of multiple wage earners.” ...15 On April 5, 1979, the Court heard oral argument regarding the governmental interest served by assignment of two bedroom apartments to single parents with a child of the opposite sex. Defendants subsequently submitted affidavits and statements from two psychiatrists (Vincenzo Conigliaro, M.D. and Yale Kramer, M.D.) who presented their views on the psychological dangers which result from having a single parent and a child of the opposite sex share the same bedroom. Dr. Kramer concluded that “affectional and sexual overstimulation is more likely to occur where the opposite sexes sleep together, and this leads to ... impaired psychological development.” In addition, where opposite sexes sleep together there may be “traumatic overexposure to adult genitalia which may have powerful pathogenic effects on children....” Finally “there is suggestive evidence that children sleeping with opposite-sexed parents reinforces a gender identification with those parents which leads to later gender-identity conflicts.” Dr. Conigliaro contended that the sharing of the same bedroom by a single parent and child of the opposite sex “could contribute to, or cause, an excessive degree of ‘allosexual identifications’, [where a child identifies with the parent of the opposite sex] with results bearing on character formation, Super Ego formation and sexual identity.”

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and mental welfare of the citizenry are certainly legitimate and substantial state interests. This Court should not “second guess” the government agency which recognized these traditional societal values and economic realities and sought to protect them. Village of Belle Terre v. Boraas, 416 U.S. 1, 8 (1974).

Classifications do not violate equal protection merely because they may be imperfect, imprecise or underinclusive. Where, as here, a standard has evolved which bears a substantial relationship to an important state interest, and which does not use sex as a convenient administrative substitute for a more accurate classifying characteristic, there is no equal protection violation. ...

DISCUSSION QUESTIONS

100. The defendants’ policy in Braunstein treats single-parent families differently if the parent and child are of different sexes. The court says that this is not sex discrimination because both sexes are treated the same. Suppose the policy was to treat married couples differently if the husband and wife were of different races. Could you argue that this is not race discrimination because all races are treated alike? If not, why are the two cases different?

101. Assume that in these one parent-one child families 50% of the children are boys and 50% girls. Assume also that 90% of the single parents are women. What group of people are rendered worse off under the policy?

102. The court in Braunstein says that any sex discrimination is substantially related to the important state interest in protecting the children from harm. What harms does the court see as arising from parents sharing space with children of the other sex? Are these harms important? Is the policy substantially related to preventing them?

2. Integration Maintenance

UNITED STATES v. STARRETT CITY ASSOCIATES840 F.2d 1096 (2d Cir. 1988)

MINER, Circuit Judge: The United States Attorney General, on behalf of the United States (“the government”), commenced this action under Title VIII of the Civil Rights Act of 1968 against defendants-appellants Starrett City Associates, Starrett City, Inc. and Delmar Management Company (collectively, “Starrett”). The government maintained that Starrett’s practices of renting apartments in its Brooklyn housing complex solely on the basis of applicants’ race or national origin, and of making apartments unavailable to black and Hispanic applicants that are then made available to white applicants, violate the Act. The district court granted summary judgment in favor of the government and permanently enjoined appellants from discriminating on the basis of race in the rental of apartments. Starrett appeals from this judgment.

Background. Appellants constructed, own and operate “Starrett City,” the largest housing development in the nation, consisting of 46 high-rise buildings containing 5,881

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apartments in Brooklyn, New York. The complex’s rental office opened in December 1973. The United Housing Foundation abandoned a project to build a development of cooperative apartments at the Starrett City site in 1971. Starrett proposed to construct rental units on the site on the condition that the New York City Board of Estimate approve a transfer to Starrett of the city real estate tax abatement granted to the original project. The transfer created “substantial community opposition” because “the neighborhood surrounding the project and past experience with subsidized housing” created fear that “the conversion to rental apartments would result in Starrett City’s becoming an overwhelmingly minority development.” The transfer was approved, however, “upon the assurance of Starrett City’s developer that it was intended to create a racially integrated community.”

Starrett has sought to maintain a racial distribution by apartment of 64% white, 22% black and 8% Hispanic at Starrett City. Starrett claims that these racial quotas are necessary to prevent the loss of white tenants, which would transform Starrett City into a predominantly minority complex. Starrett points to the difficulty it has had in attracting an integrated applicant pool from the time Starrett City opened, despite extensive advertising and promotional efforts. Because of these purported difficulties, Starrett adopted a tenanting procedure to promote and maintain the desired racial balance. This procedure has resulted in relatively stable percentages of whites and minorities living at Starrett City between 1975 and the present.

The tenanting procedure requires completion of a preliminary information card stating, inter alia, the applicant’s race or national origin, family composition, income and employment. The rental office at Starrett City receives and reviews these applications. Those that are found preliminarily eligible, based on family composition, income, employment and size of apartment sought, are placed in “the active file,” in which separate records by race are maintained for apartment sizes and income levels. Applicants are told in an acknowledgement letter that no apartments are presently available, but that their applications have been placed in the active file and that they will be notified when a unit becomes available for them. When an apartment becomes available, applicants are selected from the active file for final processing, creating a processed applicant pool. As vacancies arise, applicants of a race or national origin similar to that of the departing tenants are selected from the pool and offered apartments.

In December 1979, a group of black applicants brought an action against Starrett. Plaintiffs alleged that Starrett’s tenanting procedures violated federal and state law by discriminating against them on the basis of race. The parties stipulated to a settlement in May 1984, and a consent decree was entered subsequently. The decree provided that Starrett would, depending on apartment availability, make an additional 35 units available each year for a five-year period to black and minority applicants.

The government commenced the present action against Starrett in June 1984, “to place before the [c]ourt the issue joined but left expressly unresolved” in the Arthur consent decree: the “legality of defendants’ policy and practice of limiting the number of apartments available to minorities in order to maintain a prescribed degree of racial balance.” The complaint alleged that Starrett, through its tenanting policies, discriminated in violation of the Fair Housing Act. Specifically, the government maintained that Starrett violated the Act by making apartments unavailable to blacks solely because of

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race, 42 U.S.C. §3604(a); by forcing black applicants to wait significantly longer for apartments than whites solely because of race, §3604(b); by enforcing a policy that prefers white applicants while limiting the numbers of minority applicants accepted, §3604(c); and by representing in an acknowledgement letter that no apartments are available for rental when in fact units are available, §3604(d).

[In its motion opposing summary judgment,] Starrett maintained that the tenanting procedures “were adopted at the behest of the [s]tate solely to achieve and maintain integration and were not motivated by racial animus.” To support their position, appellants submitted the written testimony of three housing experts. They described the “white flight” and “tipping” phenomena, in which white residents migrate out of a community as the community becomes poor and the minority population increases, resulting in the transition to a predominantly minority community. Acknowledging that “‘the tipping point for a particular housing development, depending as it does on numerous factors and the uncertainties of human behavior, is difficult to predict with precision,’” one expert stated that the point at which tipping occurs has been estimated at from 1% to 60% minority population, but that the consensus ranged between 10% and 20%. Another expert, who had prepared a report in 1980 on integration at Starrett City for the New York State Division of Housing and Community Renewal, estimated the complex’s tipping point at approximately 40% black on a population basis. A third expert, who had been involved in integrated housing ventures since the 1950’s, found that a 2:1 white-minority ratio produced successful integration.

The court, however, accepted the government’s contention that Starrett’s practices of making apartments unavailable for blacks, while reserving them for whites, and conditioning rental to minorities based on a “tipping formula” derived only from race or national origin are clear violations of the Fair Housing Act. The district court found that apartment opportunities for blacks and Hispanics were far fewer “than would be expected if race and national origin were not taken into account,” while opportunities for whites were substantially greater than what their application rates projected. Minority applicants waited up to ten times longer than the average white applicant before they were offered an apartment. Starrett City’s active file was 21.9% white in October 1985, but whites occupied 64.7% of the apartments in January 1984. Although the file was 53.7% black and 18% Hispanic in October 1985, blacks and Hispanics, respectively, occupied only 20.8% and 7.9% of the apartments as of January 1984. Appellants did not dispute this. Further, the court found that appellants’ tipping argument was undercut by the “wide elasticity of that standard” and the lack of difficulty they had in increasing their black quota from 21% to 35% “when it became necessary to avoid litigating the private Arthur lawsuit which threatened their unlawful rental practices.” The court also found that Starrett violated the Act by making untrue representations of apartment unavailability to qualified minority applicants in order to reserve units for whites. Finally, the court rejected Starrett’s claim that the duty imposed upon government to achieve housing integration justified its actions, stating that “[d]efendants cannot arrogate to themselves the powers” of a public housing authority.

The court concluded that Starrett’s obligation was “simply and solely to comply with the Fair Housing Act” by treating “black and other minority applicants ... on the same basis as whites in seeking available housing at Starrett City.” The court noted that

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Starrett did not dispute any of the operative facts alleged to show violations of the Fair Housing Act. Accordingly, Judge Neaher granted summary judgment for the government, enjoining Starrett from discriminating against applicants on the basis of race and “[r]equiring [them] to adopt written, objective, uniform, nondiscriminatory tenant selection standards and procedures” subject to the court’s approval. On appeal, Starrett presses arguments similar to those it made before the district court. We affirm the district court’s judgment.

Discussion. Title VIII of the Civil Rights Act of 1968 was enacted pursuant to Congress’ thirteenth amendment powers “to provide, within constitutional limitations, for fair housing throughout the United States.” 42 U.S.C. §3601. Housing practices unlawful under Title VIII include not only those motivated by a racially discriminatory purpose, but also those that disproportionately affect minorities. See, e.g., Robinson v. 12 Lofts Realty, Inc. 610 F.2d 1032, 1036-37 (2d Cir.1979). Starrett’s allocation of public housing facilities on the basis of racial quotas, by denying an applicant access to a unit otherwise available solely because of race, produces a “discriminatory effect ... [that] could hardly be clearer,” Burney v. Housing Auth., 551 F.Supp. 746, 770 (W.D.Pa.1982). Appellants do not contend that the plain language of section 3604 does not proscribe their practices. Rather, they claim to be “clothed with governmental authority” and thus obligated, under Otero v. New York City Housing Auth., 484 F.2d 1122 (2d Cir.1973), to effectuate the purpose of the Fair Housing Act by affirmatively promoting integration and preventing “the reghettoization of a model integrated community.” We need not decide whether Starrett is a state actor, however. Even if Starrett were a state actor with such a duty, the racial quotas and related practices employed at Starrett City to maintain integration violate the antidiscrimination provisions of the Act.

Both Starrett and the government cite to the legislative history of the Fair Housing Act in support of their positions. This history consists solely of statements from the floor of Congress. These statements reveal “that at the time that Title VIII was enacted, Congress believed that strict adherence to the anti-discrimination provisions of the [A]ct” would eliminate “racially discriminatory housing practices [and] ultimately would result in residential integration.” Thus, Congress saw the antidiscrimination policy as the means to effect the antisegregation-integration policy. While quotas promote Title VIII’s integration policy, they contravene its antidiscrimination policy, bringing the dual goals of the Act into conflict. The legislative history provides no further guidance for resolving this conflict.

We therefore look to analogous provisions of federal law enacted to prohibit segregation and discrimination as guides in determining to what extent racial criteria may be used to maintain integration. Both the thirteenth amendment, pursuant to which Title VIII was enacted, and the fourteenth amendment empower Congress to act in eradicating racial discrimination, and both the fourteenth amendment and Title VIII are informed by the congressional goal of eradicating racial discrimination through the principle of antidiscrimination. Further, the parallel between the antidiscrimination objectives of Title VIII and Title VII of the Civil Rights Act of 1964, has been recognized. Thus, the Supreme Court’s analysis of what constitutes permissible race-conscious affirmative action under provisions of federal law with goals similar to those of Title VIII provides a framework for examining the affirmative use of racial quotas under the Fair Housing Act.

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Although any racial classification is presumptively discriminatory, a race-conscious affirmative action plan does not necessarily violate federal constitutional or statutory provisions. However, a race-conscious plan cannot be “ageless in [its] reach into the past, and timeless in [its] ability to affect the future.” Wygant v. Jackson Bd. of Educ., 476 U.S. 267 (1986) (plurality opinion). A plan employing racial distinctions must be temporary in nature with a defined goal as its termination point. See, e.g., Johnson v. Transportation Agency, 107 S.Ct. 1442 (1987). Moreover, we observe that societal discrimination alone seems “insufficient and over expansive” as the basis for adopting so-called “benign” practices with discriminatory effects “that work against innocent people,” Wygant, 106 S.Ct. at 1848, in the drastic and burdensome way that rigid racial quotas do. Furthermore, the use of quotas generally should be based on some history of racial discrimination, see id. at 1847, or imbalance, see Johnson, 107 S.Ct. at 1452-53, within the entity seeking to employ them. Finally, measures designed to increase or ensure minority participation, such as “access” quotas have generally been upheld. However, programs designed to maintain integration by limiting minority participation, such as ceiling quotas are of doubtful validity because they “‘single[ ] out those least well represented in the political process to bear the brunt of a benign program,’ “ Fullilove [v. Klutznick], 448 U.S. 448, 519 (1980) (Marshall, J., concurring) (quoting Regents v. Bakke, 438 U.S. 265, 361 (1978) (Brennan, J., concurring in part and dissenting in part)).

Starrett’s use of ceiling quotas to maintain integration at Starrett City lacks each of these characteristics. First, Starrett City’s practices have only the goal of integration maintenance. The quotas already have been in effect for ten years. Appellants predict that their race-conscious tenanting practices must continue for at least fifteen more years, but fail to explain adequately how that approximation was reached. In any event, these practices are far from temporary. Since the goal of integration maintenance is purportedly threatened by the potential for “white flight” on a continuing basis, no definite termination date for Starrett’s quotas is perceivable. Second, appellants do not assert, and there is no evidence to show, the existence of prior racial discrimination or discriminatory imbalance adversely affecting whites within Starrett City or appellants’ other complexes. On the contrary, Starrett City was initiated as an integrated complex, and Starrett’s avowed purpose for employing race-based tenanting practices is to maintain that initial integration. Finally, Starrett’s quotas do not provide minorities with access to Starrett City, but rather act as a ceiling to their access. Thus, the impact of appellants’ practices falls squarely on minorities, for whom Title VIII was intended to open up housing opportunities. Starrett claims that its use of quotas serves to keep the numbers of minorities entering Starrett City low enough to avoid setting off a wave of “white flight.” Although the “white flight” phenomenon may be a factor “take[n] into account in the integration equation,” Parent Ass’n of Andrew Jackson High School v. Ambach, 598 F.2d 705, 720 (2d Cir.1979), it cannot serve to justify attempts to maintain integration at Starrett City through inflexible racial quotas that are neither temporary in nature nor used to remedy past racial discrimination or imbalance within the complex.

Appellants’ reliance on Otero is misplaced. In Otero, the New York City Housing Authority (“NYCHA”) relocated over 1800 families in the Lower East Side of Manhattan to make way for the construction of new apartment buildings. Pursuant to its regulations, NYCHA offered the former site occupants first priority of returning to any

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housing built within the urban renewal area. However, because the response by the largely minority former site residents seeking to return was nearly seven times greater than expected, NYCHA declined to follow its regulation in order to avoid creating a “pocket ghetto” that would “tip” an integrated community towards a predominantly minority community. It instead rented up half of these apartments to non-former site occupants, 88% of whom were white.

In a suit brought by former site occupants who were denied the promised priority, the district court held as a matter of law that “affirmative action to achieve racially balanced communities was not permitted where it would result in depriving minority groups” of public housing. This court reversed , stating that public housing authorities had a federal constitutional and statutory duty “to fulfill, as much as possible, the goal of open, integrated residential housing patterns and to prevent the increase of segregation, in ghettos,” but we recognized that “the effect in some instances might be to prevent some members of a racial minority from residing in publicly assisted housing in a particular location.”

Otero does not, however, control in this case. The challenge in Otero did not involve procedures for the long-term maintenance of specified levels of integration, but rather, the rental of 171 of 360 new apartments to non-former site occupants, predominantly white, although former site residents, largely minority, sought those apartments and were entitled to priority under NYCHA’s own regulation. The Otero court did not delineate the statutory or constitutional limits on permissible means of integration, but held only that NYCHA’s rent-up practice could not be declared invalid as a matter of law under those limits. In fact, the court in Otero observed that the use of race-conscious tenanting practices might allow landlords “to engage in social engineering, subject only to general undefined control through judicial supervision” and could “constitute a form of unlawful racial discrimination.”

It is particularly important to note that the NYCHA action challenged in Otero only applied to a single event—the initial rent up of the new complexes—and determined tenancy in the first instance alone. NYCHA sought only to prevent the immediate creation of a “pocket ghetto” in the Lower East Side, which had experienced a steady loss of white population, that would tip the precarious racial balance there, resulting in increased white flight and inevitable “non-white ghettoization of the community.” Further, the suspension of NYCHA’s regulation did not operate as a strict racial quota, because the former site residents entitled to a rental priority were approximately 40% white. As a one-time measure in response to the special circumstances of the Lower East Side in the early 1970’s, the action challenged in Otero had an impact on non-whites as a group far less burdensome or discriminatory than Starrett City’s continuing practices.

Conclusion. We do not intend to imply that race is always an inappropriate consideration under Title VIII in efforts to promote integrated housing. We hold only that Title VIII does not allow appellants to use rigid racial quotas of indefinite duration to maintain a fixed level of integration at Starrett City by restricting minority access to scarce and desirable rental accommodations otherwise available to them. We therefore affirm the judgment of the district court.

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JON O. NEWMAN, Circuit Judge, dissenting: Congress enacted the Fair Housing Act to prohibit racial segregation in housing. Starrett City is one of the most successful examples in the nation of racial integration in housing. I respectfully dissent because I do not believe that Congress intended the Fair Housing Act to prohibit the maintenance of racial integration in private housing.

I. ... The development of Starrett City as an apartment complex committed to a deliberate policy of maintained racial integration has at all times occurred with the knowledge, encouragement, and financial support of the agency of the United States directly concerned with housing, the Department of Housing and Urban Development (HUD). Under a contract between HUD and Starrett City, the federal government pays all but one percent of the debt service of the mortgage loan extended to Starrett City by the New York State Housing Finance Agency (HFA). By March 1986 HUD had paid HFA more than $211 million on Starrett City’s behalf. In exchange for this interest subsidy, Starrett City agreed to limit the rent for eligible tenants to a monthly figure specified by HUD or to a stated percentage of the tenant’s monthly income (initially 25%, now 30%), whichever is greater. In addition, HUD has provided rental subsidies for tenants with low incomes. Since 1981 these rental subsidies have been nearly $22 million a year.

Despite its close cooperation in the development of Starrett City as an integrated housing complex, the United States now sues Starrett City to force it to abandon the rental policies that have enabled it to maintain racial integration. The bringing of the suit raises a substantial question as to the Government’s commitment to integrated housing. The timing of the suit puts that commitment further in doubt. In 1979 a class of Black applicants for housing at Starrett City brought suit to challenge on federal statutory and constitutional grounds the same tenant selection policies at issue in this case. With the federal government observing from the sidelines, the parties to [that] litigation engaged in protracted settlement negotiations. More than four years later, a mutually advantageous settlement was reached. Starrett City was permitted to continue its policy of maintaining integration through its tenant selection policies. In return, Starrett City agreed to increase by three percent over five years the proportion of rental units occupied by minority tenants. At the same time, DHCR, the state housing agency, which was also a defendant in the Arthur litigation, agreed to take affirmative steps to promote housing opportunities for minorities in DHCR-supervised housing projects in New York City. Specifically, the State agency agreed to give a priority in other projects to minority applicants on the Starrett City waiting list. No member of the class of minority applicants for housing at Starrett City objected to the settlement. Thus, the needs of the minority class for whose benefit the suit had been brought were met to their satisfaction by providing for more rental opportunities both at Starrett City and elsewhere. Just one month after that settlement was reached, the United States filed this suit, ostensibly concerned with vindication of the rights of the same minority applicants for housing who had just settled their dispute on favorable terms.

II. The only issue in this case is whether Starrett City’s rental policies violate Title VIII of the Civil Rights Act of 1968 The defendants do not dispute that their rental policies fall within the literal language of Title VIII’s prohibition on discriminatory housing practices. Instead they contend that their race-conscious policies further the

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compelling state interest of promoting integrated housing and are narrowly tailored to achieve that interest. At a minimum, they contend, they are entitled to a trial on the merits to prove their claim.

In my view, the defendants are entitled to prevail simply on the statutory issue to which the Government has limited its lawsuit. Though the terms of the statute literally encompass the defendants’ actions, the statute was never intended to apply to such actions. This statute was intended to bar perpetuation of segregation. To apply it to bar maintenance of integration is precisely contrary to the congressional policy “to provide, within constitutional limitations, for fair housing throughout the United States.” 42 U.S.C. §3601. We have been wisely cautioned by Learned Hand that “[t]here is no surer way to misread a document than to read it literally.” That aphorism is not always true with respect to statutes, whose text is always the starting point for analysis and sometimes the ending point. But literalism is not always the appropriate approach even with statutes, as the Supreme Court long ago recognized: “It is a familiar rule, that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intent of its makers.” Church of the Holy Trinity v. United States, 143 U.S. 457, 459 (1892).

Title VIII bars discriminatory housing practices in order to end segregated housing. Starrett City is not promoting segregated housing. On the contrary, it is maintaining integrated housing. It is surely not within the spirit of the Fair Housing Act to enlist the Act to bar integrated housing. Nor is there any indication that application of the statute toward such a perverse end was within the intent of those who enacted the statute. It is true that there are some statements in the legislative history that broadly condemn discrimination for “any” reason. Senator Mondale, the principal sponsor of Title VIII, said that “we do not see any good reason or justification, in the first place, for permitting discrimination in the sale or rental of housing.” But his context, like that in which the entire debate occurred, concerned maintenance of segregation, not integration. His point was that there was no reason for discriminating against a Black who wished to live in a previously all-White housing project. He explicitly decried the prospect that “we are going to live separately in white ghettos and Negro ghettos.” The purpose of Title VIII, he said, was to replace the ghettos “by truly integrated and balanced living patterns.” As he pointed out, “[O]ne of the biggest problems we face is the lack of experience in actually living next to Negroes.” Starrett City is committed to the proposition that Blacks and Whites shall live next to each other. A law enacted to enhance the opportunity for people of all races to live next to each other should not be interpreted to prevent a landlord from maintaining one of the most successful integrated housing projects in America.

None of the legislators who enacted Title VIII ever expressed a view on whether they wished to prevent the maintenance of racially balanced housing. Most of those who passed this statute in 1968 probably could not even contemplate a private real estate owner who would deliberately set out to achieve a racially balanced tenant population. Had they thought of such an eventuality, there is not the slightest reason to believe that they would have raised their legislative hands against it.

This Circuit has previously ruled that Title VIII does not apply literally to prohibit racially based rental policies adopted to promote integration. Otero. In that case a public

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housing authority had committed itself by regulation to give first priority for rental housing to applicants who had been displaced by construction of the project. The housing authority then disregarded its own regulation, based on its apprehension that giving first priority to the class of those displaced from the site, most of whom were non-White, would cause the project to pass the so-called “tipping point” and become predominantly non-White. The first question in Otero was whether the authority’s deliberate decision not to honor its priority policy because the benefitted class was predominantly non-White violated Title VIII. The Court held that the Act was not violated simply because a race-conscious decision had been made in connection with rental policy:

Congress’ desire in providing fair housing throughout the United States was to stem the spread of urban ghettos and to promote open, integrated housing, even though the effect in some instances might be to prevent some members of a racial minority from residing in publicly assisted housing in a particular location.

Once the Court decided that a race-conscious rental policy did not necessarily violate the Act, it then faced the difficult issue in the case—whether the Act imposed an affirmative duty to promote integration of sufficient force to permit the authority to violate its own regulation. On that issue, the Court also ruled in favor of the authority, remanding for a trial at which the defendant could establish that its apprehension concerning a “tipping point” was well founded and that abandonment of its priority policy was necessary to promote integration.

Our case is much easier than Otero. Starrett City is not seeking to be released from a commitment it has previously made to any of the applicants for housing. To prevail it need not find in Title VIII some affirmative obligation compelling it to promote integration. It has freely chosen to promote integration and is entitled to prevail unless something in Title VIII forbids its voluntary policy. If anything in Title VIII prohibited race-conscious rental policies adopted to promote integration, Otero would have been summarily decided against the defendant.

Acknowledging the significance of the ruling in Otero, the Court distinguishes it essentially on the ground that Otero involved a policy of limited duration, applicable only to the period in which those displaced from the site were applying for housing in the new project, whereas Starrett City seeks to pursue a long-term policy of maintaining integration. I see nothing in the text or legislative history of Title VIII that supports such a distinction. If, as the Court holds, Title VIII bars Starrett City’s race-conscious rental policy, even though adopted to promote and maintain integration, then it would bar such policies whether adopted on a short-term or a long-term basis. Since the Act makes no distinction among the durations of rental policies alleged to violate its terms, Otero’s upholding of a race-conscious rental policy adopted to promote integration cannot be ignored simply because the policy was of limited duration.4

4 The Court, drawing a parallel between Title VIII and Title VII, which bars discrimination in employment, supports its view of Title VIII with Supreme Court decisions approving only limited use of race-conscious remedies under statutory and constitutional standards in the employment context. Though Titles VIII and VII share a common objective of combating discrimination, their differing contexts preclude the assumption that the law of affirmative action developed for employment is readily applicable to housing. The Title VII cases have not been concerned with a

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But even if Title VIII can somehow be construed to make the lawfulness of a race-conscious rental policy that promotes integration turn on the duration of the policy, Starrett City is entitled to a trial so that it can prove its contention that its policy is still needed to maintain integration. In the District Court the Government, though seeking summary judgment, contested Starrett City’s factual contention that a race-conscious rental policy was currently needed to prevent the complex from passing the “tipping point” and becoming segregated. The Government relied on a brief affidavit of a HUD employee, who made primarily the unremarkable observation that it is difficult to predict with any certainty the precise “tipping point” in a particular neighborhood. In opposing summary judgment, Starrett City presented detailed affidavits providing abundant evidence to show that abandonment of its rental policies would cause the complex to pass the “tipping point” and soon become a segregated development. This evidence was solidly based on relevant experience. Several housing developments near Starrett City, operating without a policy of integration maintenance, have become racially segregated, including one across the street from Starrett City.

Otero established for this Circuit that a race-conscious rental policy adopted to promote integration does not violate Title VIII and that a defendant must be afforded an opportunity to demonstrate at a trial that its rental policy is needed to prevent a housing complex from becoming segregated. Starrett City’s affidavit evidence may well be sufficient to entitle it to summary judgment on this issue of continued need for a race-conscious rental policy to maintain integration. At a minimum it is entitled to a trial to present its evidence to a trier of fact.

Whether integration of private housing complexes should be maintained through the use of race-conscious rental policies that deny minorities an equal opportunity to rent is a highly controversial issue of social policy. There is a substantial argument against imposing any artificial burdens on minorities in their quest for housing. On the other hand, there is a substantial argument against forcing an integrated housing complex to become segregated, even if current conditions make integration feasible only by means of imposing some extra delay on minority applicants for housing. Officials of the Department of Justice are entitled to urge the former policy. Respected civil rights advocates like the noted psychologist, Dr. Kenneth Clark, are entitled to urge the latter policy, as he has done in an affidavit filed in this suit. That policy choice should be left to the individual decisions of private property owners unless and until Congress or the New York legislature decides for the Nation or for New York that it prefers to outlaw maintenance of integration. I do not believe Congress made that decision in 1968, and it is a substantial question whether it would make such a decision today. Until Congress acts, we should not lend our authority to the result this lawsuit will surely bring about. In the words of Dr. Clark: “[I]t would be a tragedy of the highest magnitude if this litigation were to lead to the destruction of one of the model integrated communities in the United

“tipping point” beyond which a work force might become segregated. Yet that is a demonstrated fact of life in the context of housing. The statutory issue arising under Title VIII should be decided on the basis of what practices Congress was proscribing when it enacted this provision. Whether the constitutional standards for affirmative action differ between the employment and housing contexts need not be considered since the Government has explicitly declined in this litigation to advance any claim of unconstitutional action.

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States.” Because the Fair Housing Act does not require this tragedy to occur, I respectfully dissent.

DISCUSSION QUESTIONS

103. How did the program at issue in Starrett City work? What arguments do you see about whether the program violated the literal language of the statute? What arguments do the judges make from the legislative history? Is this a case where legislative history should be relevant?

104. The majority’s reasoning incorporates an analogy to employer affirmative action programs under Title VII. Develop a list of ways in which the two types of programs are similar and are different. Does the Title VII test the court adopts make sense given your list?

105. What happened in the Otero case? How does the majority distinguish Otero in Starrett City? How does the dissent respond? Who is more convincing?

106. Who is harmed and who is helped by the Starrett City decision? Why did the Reagan administration bring the case? Do you think the result is correct as a matter of statutory interpretation? As a matter of policy?

SOUTH-SUBURBAN HOUSING CENTER v. GREATER SOUTH SUBURBAN BOARD OF REALTORS

935 F.2d 868 (7th Cir. 1991)

COFFEY, Circuit Judge. These consolidated appeals deal with a variety of constitutional and Fair Housing Act challenges to real estate marketing activities and municipal ordinances affecting the real estate market in a number of the southern suburbs of Chicago…. The municipalities involved are the Cities of Blue Island and Country Club Hills and the Villages of Calumet Park, Glenwood, Hazel Crest, Matteson, Park Forest, Richton Park and University Park. … The district court found that these formerly all-white suburbs have become integrated, but now face the threat of resegregation as a result of

a complex mix of market forces. These market forces include racial prejudice: some whites and some blacks prefer to live in segregated communities; the belief that high concentrations of blacks result in a drop in home values; the expectation that an integrated community will eventually become segregated; and housing search practices that are reinforced by certain real estate practices.

In order to stem the tide of these market forces and promote integrated housing patterns, the plaintiff, SSHC [South Suburban Housing Center], “attempted to influence the housing market by encouraging the sales and marketing of real estate in what it terms to be ‘non-traditional’ ways, i.e., encouraging whites to move to black or integrated areas and blacks to move to white or integrated areas.” A controversy between South-

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Suburban Housing Center and the Realtors [Greater South Suburban Board of Realtors and National Association of Realtors] over the propriety of SSHC making special efforts to market houses in black neighborhoods to white home buyers spawned the initial complaint in this litigation….

… SSHC is an Illinois, non-profit corporation whose “purposes are to ‘promote and encourage multiracial communities in the South Suburbs’ of Chicago and ‘promote open housing to all people regardless of race.’ “ SSHC engages in a program of “affirmative marketing” of real estate, which “consists of race conscious efforts to promote integration or prevent segregation through special marketing of real estate to attract persons of particular racial classifications who are not likely to either be aware of the availability or express an interest in the real estate without such special efforts.” …

This action originated as a result of the Realtors’ reaction to South-Suburban Housing Center’s attempts to promote a racial balance in the Village of Park Forest through making special efforts to interest white home buyers in property there. The current racial imbalance came about during the 1970s when many black families moved into an area in the northeast corner of the Village of Park Forest, Illinois known as the Eastgate subdivision. At the time of the 1980 census, the census block including the homes at issue here had become more than fifty-six percent black, more than double the black population of any other census block in the Eastgate subdivision. As a result of the area’s reputation as “a black block,” few white families were interested in buying property. The area became less attractive to home buyers as VA and FHA mortgage foreclosures led to abandoned homes and neighborhood blight. In response to the problem of abandoned homes in the Eastgate subdivision, in 1982 the Village of Park Forest instituted a program of purchasing vacant or abandoned homes for rehabilitation and resale, including vacant homes at numbers 9, 15 and 26 Apache Street. SSHC submitted a proposal, which included affirmative marketing, to Park Forest for the acquisition, rehabilitation and resale of these three homes.

After the Park Forest Board of Trustees accepted the proposal and sold the homes to the South-Suburban Housing Center, the SSHC agreed to list the homes for sale with Century 21-Host Realty through one of its salesmen, William H. Motluck. The parties utilized a standard real estate contract form with the exception of provisions that Century 21-Host Realty was “to implement the affirmative marketing plan attached as appendix.” In addition to securing a buyer, Century 21-Host Realty’s receipt of a commission was conditioned upon its “performance of the attached affirmative marketing plan.”

The affirmative marketing plan (AMP) directed that the realtor “use its best efforts to attract minority and majority groups persons” to the particular Apache Street home, and stated that the SSHC and the Realtor “agree that white home seekers are not likely without special outreach efforts to be attracted to the Apache St. home.” The AMP also provided that the Realtor would use “the following special outreach activities to attract white home seekers to the Apache Street home:

A. Placement of advertisements in newspapers with a predominantly white circulation;

B. Distribution of information to selected rental developments; and

C. Distribution of information to selected employers.

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The Plan also provided that “Realtor shall not take any action which prohibits, restricts, narrows or limits the housing choice of any client on the basis of race.” Century 21 was further required to maintain “a list of all persons, by race, who are shown the Apache Street home....”

The Realtors became involved when Century 21-Host Realty listed the Apache Street homes with GSSBR’s multiple listing service. The AMP created a conflict between Century 21 salesperson William Motluck and the Realtors, as the Realtors believed it was inappropriate under the fair housing laws to affirmatively market homes to one particular race, in this instance whites, in the absence of prior discrimination. … The Realtors allege that SSHC and Park Forest violated … 42 U.S.C. §§3604(a) and (c), in promulgating and implementing the Apache Street affirmative marketing plan. …

1. 42 U.S.C. §3604(a). … §3604(a)… prohibits the “refus[al] to sell or rent ... or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, or national origin.” The Fair Housing Act is concerned with both the furtherance of equal housing opportunity and the elimination of segregated housing. As we observed in Southend Neighborhood Improvement Association v. County of St. Clair, 743 F.2d 1207, 1209-10 (7th Cir.1984):

The Fair Housing Act prohibits both direct discrimination and practices with significant discriminatory effects. For example, although Section 3604(a) applies principally to the sale or rental of dwellings, courts have construed the phrase ‘otherwise make unavailable or deny’ in subsection (a) to encompass mortgage ‘redlining,’ insurance redlining, racial steering, exclusionary zoning decisions, and other actions by individuals or governmental units which directly affect the availability of housing to minorities. Of course, the alleged illegal actions must lead to discriminatory effects on the availability of housing. The Act is concerned with ending racially segregated housing. Section 3604(a) applies to the availability of housing. That section thus is violated by discriminatory actions, or certain actions with discriminatory effects, that affect the availability of housing.

The Realtors argue that the affirmative marketing plan furthers the goal of “ending racially segregated housing” at the expense of limiting the “availability of housing” for black people. They assert that this alleged subordination of equal housing opportunity to the goal of integration is invalid, just as the courts held in United States v. Starrett City Associates, 840 F.2d 1096 (2d Cir.), cert. denied, 488 U.S. 946 (1988), and United States v. Charlottesville Redevelopment and Housing Authority, 718 F.Supp. 461 (W.D.Va.1989). In Starrett City, owners of a government subsidized housing development sought to maintain an ethnic distribution of tenants in their project consisting of sixty-four percent white persons, twenty-two percent black persons and eight percent Hispanic persons through a “tenanting procedure” that filled apartment vacancies with “applicants of a race or national origin similar to that of the departing tenant....” In Charlottesville, a “tenant selection policy ... gave preferential treatment to white applicants for public housing,” based upon an intent to “achieve a 50/50 mix of black and white residents in ... public housing.” The courts determined that each of these “quota” programs violated the Fair Housing Act. In Charlottesville, the court recognized that the Fair Housing Act’s twin purposes of eliminating discrimination in housing and furthering integration in housing are both important, but may occasionally be incompatible:

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The legislative history of the Fair Housing Act suggests to this court that the prime focus or the ‘quickening’ force behind that legislation is prohibition of discrimination in the provision of housing, but also that integration was seen by the creators of that legislation as a prominent goal and a value of great worth. From the perspective of over two decades, it is perhaps excusable to find the unexamined assumption in the Act’s legislative history that the principles of nondiscrimination and integration will always necessarily go hand in hand. With our later perspective, that assumption may be unfounded, but it does not detract from the observation that this legislation was created with both legal (and moral) principles in mind, although primary weight is given to the prohibition of discrimination. However, cases such as Trafficante [v. Metropolitan Life Ins. Co., 409 U.S. 205 (1972) ] illustrate that the legal principle of integration and concern for the achievement of that goal cannot be considered mere surplusage.

The court determined that Charlottesville’s “quota” program presented a conflict between the Act’s purposes of nondiscrimination and integration, and held that:

In the present conflict between these two legal principles, nondiscrimination and integration, the obligation of [the Charlottesville Redevelopment and Housing Authority (CRHA)] to avoid discrimination must ‘trump’ CRHA’s obligation to promote integration, as regards the promotion of integration through the specific policy mechanism and controversy before this court. It is not that this court ascribes to integration a status inferior to nondiscrimination in the pantheon of legal values. It is, rather, that the duty to avoid discrimination must circumscribe the specific particular ways in which a party under the duty to integrate can seek to fulfill that second duty.

Similarly, the Second Circuit in Starrett City held that while integration maintenance with its concern over

the ‘white flight’ phenomenon may be a factor ‘take[n] into account in the integration equation,’ Parent Ass’n of Andrew Jackson High School v. Ambach, 598 F.2d 705, 720 (2d Cir.1979), it cannot serve to justify attempts to maintain integration at Starrett City through inflexible racial quotas that are neither temporary in nature nor used to remedy past racial discrimination or imbalance within the complex.

Thus, Starrett City and Charlottesville both mandate the conclusion that an interest in racial integration alone is insufficient to justify a racial quota system which favors whites and thereby lessens housing opportunities for minorities.

In contrast to the subordination of the goal of equal housing opportunity to the goal of integration presented by the facts in Starrett City and Charlottesville, the Realtors’ challenge to the Apache Street affirmative marketing plan presents the question of whether a real estate organization may engage in limited race conscious marketing which does not exclude minorities from housing opportunities. Thus, we are not dealing with conflicting goals, for the affirmative marketing plan furthers the goal of integration while providing equal opportunities to all.

Essentially, the Realtors’ contention is that the AMP constitutes invalid “steering” of blacks from Park Forest in that it “deterred blacks from buying on Apache Street and in Park Forest generally by directing essential information about housing availability away from blacks and towards whites, and by stigmatizing black residents and home seekers.” This Court has not previously addressed the question of whether an attempt to interest white homeowners in property located in an area of predominant interest to black

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home buyers constitutes “steering” violative of the Fair Housing Act. However, we recently addressed the analysis applicable to an allegation of more traditional, non-benign “steering” in Village of Bellwood v. Dwivedi, 895 F.2d 1521, 1529-30 (7th Cir.1990):

The mental element required in a steering case is the same as that required in employment discrimination cases challenged either under Title VII of the Civil Rights Act of 1964 … or under 42 U.S.C. §1981 … on a theory of disparate treatment. ‘Disparate treatment’ means treating a person differently because of his race; it implies consciousness of race, and a purpose to use race as a decision-making tool. …

In analyzing the question of whether directing information to predominantly white audiences concerning the Apache Street homes violates the Fair Housing Act, we must recognize that these homes likely would have been primarily of interest to black home buyers. But SSHC’s affirmative marketing plan in no way deters black home buyers from pursuing their interest in the Apache Street homes; it merely creates additional competition in the housing market. If the AMP resulted in realtors “refusing to show properties because of the race of the customer, or misleading the customer about the availability of properties because of his race, or cajoling or coercing the customer because of his race to buy this property or that or look in this community rather than that,” id. at 1530, we would agree that racial steering may possibly have been involved. In the absence of concrete evidence of this nature, however, we see nothing wrong with SSHC attempting to attract white persons to housing opportunities they might not ordinarily know about and thus choose to pursue.

The district court explicitly found that:The SSHC’s stated purpose in entering into and implementing the Apache Street listings was to add some ‘white traffic to the properties in addition to the black traffic,’ not to decrease or restrict the black traffic. The relevant evidence supports a finding that that was in fact the SSHC’s purpose.

With respect to the ultimate factual finding of whether the Realtors had proven intentional discrimination, the trial court found:

Since counterplaintiffs offered no evidence respecting any persons who sought to purchase or rent homes and who were denied that right by the SSHC, or that the SSHC denied or made housing available to anyone, or in any way restricted or limited anyone’s housing choice, the court concludes that the counterplaintiffs have failed to prove an ‘intent’ case under the Fair Housing Act.

The record contains neither cases of particular adversely affected black home buyers nor statistical evidence that would lead us to conclude that the trial court’s finding of an absence of intentional discrimination was clearly erroneous.

In addition to furthering the Fair Housing Act’s goal of integration, we are of the opinion that the AMP also advances the purpose of the Act through making housing equally available to all by stimulating interest among a broader range of buyers. Furthermore, this marketing may simply be a wise business move in that it stimulates interest in housing among new and/or potential customers. We disagree with the Realtors’ argument that increased competition among black and white home buyers for the same homes constitutes a violation of the Fair Housing Act. Instead, this is precisely the type of robust multi-racial market activity which the Fair Housing Act intends to

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stimulate. Because the Apache Street affirmative marketing plan merely provided additional information to white home buyers concerning properties they might not ordinarily know about nor consider, and involved no lessening of efforts to attract black home buyers to these same properties, we conclude that the plan was not in violation of 42 U.S.C. §3604(a).

2. 42 U.S.C. §3604(c). The Realtors go on to argue that SSHC and Park Forest violated 42 U.S.C. §3604(c) because the promulgation of the Apache Street AMP constituted the publication of a statement indicating a preference based on race or color or an intention to make such a preference. As discussed previously, the Apache Street AMP merely directs additional promotional and advertising toward a racial group that would normally have little interest in the respective homes. It contains no racial quota or other provision purporting to make race a factor in a decision concerning who would be permitted to see or purchase the Apache Street homes. Thus, we are of the opinion that the Apache Street plan was not an improper statement of racial preference under 42 U.S.C. §3604(c).

C. Statutory Defenses

1. Religious/Private Club Exemptions

UNITED STATES v. COLUMBUS COUNTRY CLUB915 F.2d 877 (3rd Cir. 1990)

SEITZ, Circuit Judge. The government appeals from two orders of the district court resulting in the dismissal without trial of its action to enforce the Fair Housing Act.

I. The facts material to our disposition are not in dispute. The Columbus Country Club (defendant) was formed in 1920 by the Knights of Columbus, a Roman Catholic men’s organization.... In 1936, defendant eliminated the requirement that members belong to the Knights of Columbus but retained the requirement that members be Catholic males. There is no legal relationship with the Knights of Columbus.

Defendant presently maintains a community of 46 summer homes (called “bungalows”) located on a 23-acre tract of land along the Delaware River north of Philadelphia. Defendant’s by-laws prohibit members from occupying their bungalows from October through April. Even if a family wanted to live in a bungalow year round, the lack of running water and heating facilities would make it impracticable. In addition to the summer homes, the property includes a clubhouse, a barn for lawn care equipment, a chapel and a grotto. Recreational facilities include a tennis court, playground, shuffleboard court and a swimming area. Defendant has a liquor license.

Defendant is organized as a non-profit organization, and its membership is comprised of annual, associate and social members. Annual members are those members who own bungalows and vote on all matters affecting the organization. The annual

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members own the land collectively. Pursuant to a leasehold agreement, defendant leases bungalow lots to the annual members for an annual fee. Annual members must be members in good standing of the Roman Catholic Church.1 Associate members are adults over age 21 who live in the bungalows throughout the summer, but are not annual members. These individuals are generally the immediate family of annual members. Social members are close friends and relatives of annual members who do not occupy bungalows throughout the summer. Neither associate members nor social members are required to be Roman Catholic.

Defendant is not formally affiliated with the Roman Catholic Church, nor with any Catholic organization. Prior to 1987, the “purpose” section of defendant’s by-laws did not mention Catholicism or affiliation with the Roman Catholic Church. As laid out in the original charter:

The purpose for which the corporation is formed is the maintenance of a Club for social enjoyments, in order to cultivate cordial relations and sentiments of friendship among its members and provide accommodations for social intercourse, outdoor sport, and healthful recreation for them.

Notwithstanding the lack of formal ties between the Church and defendant, many of its members are practicing Catholics. In 1922, the Archbishop of Philadelphia granted the club special permission for the celebration of mass on the club grounds each Sunday and provided a priest from a nearby town for such services. Some members conduct the rosary each night in the chapel. A statue of the Virgin Mary stands in the grotto near the entrance to the club.

Defendant follows a formal procedure in admitting new members to the community. Since the 1987 amendments to the by-laws, the membership applications must be accompanied by a written recommendation from the applicant’s parish priest stating that the applicant is a practicing Roman Catholic in good standing. The full Board, by majority vote, makes the final decision on the admission of new members. There have been thirty-one transfers of ownership interests in bungalows since 1970. Since 1968, only four applicants have not been approved for annual membership.

II. This lawsuit stems from the efforts of associate member Anita Gualtieri to become an annual member. Mrs. Gualtieri first applied for membership in 1986 so that she could purchase from her mother the leasehold on the bungalow that her family had held since the 1950’s. She was informed that she was not eligible for annual membership because she was a woman. Her husband was also ineligible for annual membership because he was not a member of the Roman Catholic Church. Failing to have the eligibility requirements amended, Mrs. Gualtieri wrote to the Cardinal’s Commission on Human Relations and Urban Ministry to complain of defendant’s discriminatory practices. After an investigation, the Archdiocese informed defendant that the allegations were not unwarranted and threatened to withdraw permission to hold mass at the club. Subsequently, defendant revised its by-laws to make them gender-neutral, but did not alter the requirement that annual members be Roman Catholic. Rather, language was added to the purpose section emphasizing the religious aspects of the community’s life

1 Until amendment of the by-laws in 1987, the club restricted annual membership to men.

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and adding the requirement of a written statement from the parish priest attesting to an applicant’s status as a member of the Roman Catholic Church.

Mrs. Gualtieri reapplied for annual membership in 1987. The Board of Governors considered and voted against her application based allegedly on the family’s prior demonstrated lack of ability to get along with the community and lack of interest in the religious aspects of the community.

Mrs. Gualtieri notified the Civil Rights Division of the Department of Justice of defendant’s policies, and it subsequently filed suit, alleging a pattern and practice of discrimination in the sale of dwellings, on account of religion and sex, in violation of the Fair Housing Act. After a hearing on the parties’ cross-motions for summary judgment, the district court held that defendant was exempt from the Act under both the religious organization and private club exemptions. …

III. Fair Housing Act. The government alleges that defendant’s policy and practice of prohibiting the sale of bungalows to non-Catholics violates the Fair Housing Act. ... Defendant does not deny that it discriminates on the basis of religion; rather, it contends that the bungalows are not “dwellings” because they are not capable of being occupied as year-round residences. Thus, defendant asserts that the Fair Housing Act does not apply to it. ... The Fair Housing Act defines “dwelling” to mean:

any building, structure, or portion thereof which is occupied as, or designed or intended for occupancy as, a residence by one or more families, and any vacant land which is offered for sale or lease for the construction or location thereon of any such building, structure, or portion thereof.

42 U.S.C. §3602(b). Although the meaning of the word “residence” is central to understanding this definition, the Act provides no statutory definition of that term. In such cases, “it is appropriate to assume that the ordinary meaning of the language that Congress employed ‘accurately expresses the legislative purpose.’” Mills Music v. Snyder, 469 U.S. 153, 164 (1985) (quoting Park ‘N Fly v. Dollar Park and Fly, 469 U.S. 189, 195 (1985)).

In U.S. v. Hughes Memorial Home, 396 F.Supp. 544, 549 (W.D. Va.1975), the court followed this rule of statutory construction and concluded that Title VIII applied to a children’s home. In reaching that conclusion, the court applied the definition in Webster’s Third New International Dictionary which provides that a residence is: “a temporary or permanent dwelling place, abode or habitation to which one intends to return as distinguished from the place of temporary sojourn or transient visit.”

Other courts that have looked at the issue of temporary residence have agreed with Hughes Memorial. See Patel v. Holley House Motels, 483 F.Supp. 374, 381 (S.D. Ala.1979) (a motel is not a dwelling because it is not used for occupancy as a residence, but rather provides lodgings to transient guests); Baxter v. City of Belleville, 720 F.Supp. 720, 731 (S.D. Ill.1989) (facility for AIDS victims is a dwelling because persons “will not be living there as mere transients”); see also R. SCHWEMM, HOUSING DISCRIMINATION LAW 53 (1983) (Title VIII “would presumably cover ... facilities whose occupants remain for more than a brief period of time and who view their rooms as a residence ‘to return to.’”). We agree with these cases and hold that the central inquiry is

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whether the defendant’s annual members intend to remain in the bungalows for any significant period of time and whether they view their bungalows as a place to return to.

Applying this standard to the undisputed facts, we conclude that the annual members are not “mere transients.” In any year, annual members may spend up to five months in their bungalows. Furthermore, nearly all of the annual members return to their bungalows summer after summer. Indeed, in the last twenty years there have been only thirty-one transfers of ownership within the community of forty-six bungalows. Consequently, defendant’s bungalows fall within the ordinary meaning of “residence” and must be considered dwellings for purposes of the Fair Housing Act.

Finally, there is no indication in the statutory language that Congress intended to limit coverage of the Act to year-round places of abode and exempt seasonal dwellings. To recognize a distinction based on seasonal residency would, as the government contends, create a broad exception to the Act that would permit, for example, residents in a private development of summer homes to lawfully exclude blacks from owning, renting or occupying the homes. Therefore, we agree with the district court that the bungalows fall within the statutory definition of “dwelling” and that defendant is subject to the provisions of the Act.

IV. Statutory Exemptions. Defendant asserts that ... it is exempt from the Fair Housing Act under the exemptions provided by 42 U.S.C. §3607(a) for religious organizations and private clubs. “Under general principles of statutory construction, ‘[o]ne who claims the benefit of an exception from the prohibition of a statute has the burden of proving that his claim comes within the exception.’“ Mills Music, Inc., v. Snyder, 469 U.S. 153, 188 n.20 (1985) (White, J., dissenting) (quoting 2A C. SANDS, SUTHERLAND ON STATUTORY CONSTRUCTION §47.11, at 145 (rev. 4th ed. 1984)). Thus, defendant has the burden of proving that it falls within the statutory exemption provided for religious organizations or private clubs as a matter of law.

Religious Organization Exemption. Defendant’s first affirmative defense is that it is exempt from the Fair Housing Act under [§3607’s] exemption for religious organizations. ... To fit into this exemption, defendant must prove that it is either: (1) a religious organization, or (2) a non-profit organization “operated, supervised or controlled by or in conjunction with” a religious organization. The district court concluded and defendant does not dispute that it is not itself a “religious organization.” The dispute centers instead upon whether defendant is “operated, supervised or controlled by or in conjunction with” a religious organization.

The government argues that the quoted language implies a hierarchical relationship in which the non-profit entity is subordinate to the religious organization. At the very least, the government contends, there must be some direct affiliation between the religious organization and the other organization, as would be the case with a religious school, for example. This interpretation finds some support in the limited legislative history. Senator Mondale, whose amendment to the 1968 Civil Rights Act was adopted by Congress to create Title VIII, stated: “There is an exemption to permit religious institutions or schools, etc., affiliated with them, to give preference in housing to persons of their own religion despite the Act.”

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As the government argues, the Catholic Church does not operate, supervise or control defendant. There is no formal or legal relationship between them. At the most, the Church approves of and supports defendant by permitting religious services to be conducted on the premises.

Defendant responds that it is “operated in conjunction with a religious organization” and is directly affiliated with the Catholic Archdiocese. In support of its response, defendant argues that the exemption for religious organizations should be read broadly, and that the undisputed facts demonstrate that defendant is entitled to the exemption as a matter of law.

Defendant contends that the broad language of the exemption and the common dictionary meaning of the words used indicate that the relationship between the religious organization and the non-profit organization may consist of anything ranging from a formal, highly structured, hierarchical relationship to an informal, loosely-structured relationship. Additionally, defendant

asserts, the religious exemption reflects Congress’s sensitivity to first amendment rights. Consequently, defendant argues, the exemption should be broadly construed to cover activity that is permitted, but not required, by the Church.

We cannot agree with defendant’s contention that the exemption is to be read broadly. A unanimous Supreme Court mandated in Trafficante a “generous construction” of the Fair Housing Act in order to carry out a “policy that Congress considered to be of the highest priority.” The logical corollary to such a construction, as well as the general rule of statutory interpretation, is to construe narrowly any exemptions to the Act. Such a narrow reading is also supported by the only case interpreting Title VIII’s religious exemption that we have found. See Hughes Memorial Home, 396 F.Supp. at 550 (“In view of the Supreme Court’s holding that the Fair Housing Act must be accorded a generous construction, the general principle requiring the strict reading of exemptions from the Act applies here with even greater force.”).

In holding that defendant fell within the exemption for religious organizations, the district court relied upon the defendant’s affiliation with the Church as evidenced by the Church’s grant of the privilege of having weekly mass celebrated on the grounds and its tacit approval of the recital of the rosary. In reaching its conclusion, the district court found that the Catholic Church does not actually “control” the club or its operations. The district court did state, however, that “the persons who, over the years, have operated and controlled the club, have done so ‘in conjunction with’ their continuing obligations as members of the Roman Catholic faith,” and went on to conclude that “[a]s a practical matter, by virtue of its ability to grant or withhold the privilege of holding religious services in the club chapel ... the Archdiocese does possess a very significant degree of control over the club itself.”

We do not think that these undisputed facts are sufficient to hold that defendant carried its burden. The critical words of the exemption are “in conjunction with,” and so there must be a mutual relationship between the non- profit society and a religious organization. The existence of this relationship cannot depend solely on the activities of the non-profit organization nor be viewed only from its perspective. Indeed, evidence of the club’s unilateral activities would go to whether it is itself a religious organization not

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to whether it is operated “in conjunction with” a religious organization. Furthermore, the Church’s ability to withdraw permission to hold mass and the fact that on one occasion it may have indirectly influenced the club’s Board of Governors by threatening to do so are not enough. Without further evidence of interaction or involvement by the Church, we cannot conclude that as a matter of law the Church controlled the defendant or that the defendant was operated “in conjunction with” the Church. Consequently, on this record and in light of our unwillingness to read the statutory exemption broadly, we hold that the defendant failed to carry its burden of proving its entitlement to the religious organization exemption.

Private Club Exemption. Defendant’s second affirmative defense is that it falls within the exemption for private clubs [under §3607(a)], as the district court held. Again, the defendant has the burden of proving its entitlement to this statutory exemption. ... We believe that to fall within this statutory exemption five conditions must be met. The defendant must: (1) be a “private club not in fact open to the public”; (2) provide “lodgings;” and (3) only limit the “rental or occupancy of such lodgings.” Furthermore, if a defendant provides “lodgings,” those lodgings must be: (4) provided “as an incident to its [defendant’s] primary purpose or purposes;” and (5) owned or operated “for other than a commercial purpose.” We do not address the district court’s determination that the defendant was a private club satisfying condition (1) because we are content that our conclusions with respect to conditions (2) and (3) are fully dispositive.

To determine whether defendant’s bungalows satisfy condition (2), we begin, as we must, by examining the statutory text. Since the private club exemption is part of the same section that provides the exemption for religious organizations, it is instructive to note the differences. In the first place, the word “lodgings” has replaced the word “dwellings,” and the word “sale” has been deleted. Furthermore, the private club exemption requires that the club provide lodgings only “as an incident to its primary purpose or purposes.” Thus, the overall effect of these changes is to carefully limit the exemption.

Congress’ intention to limit the exemption is borne out by the legislative history.4

Senator Kuchel, the sponsor of the amendment that modified the wording of the exemption, explained that the purpose of the changes was: “to tighten the exemption now provided in the substitute referring to bona fide private clubs.”

Defendant argues that it provides “lodgings,” because according to the dictionary, a lodging is a “dwelling,” and Congress drew no durational distinction between the two terms, as it did in Title II when it modified “lodging” with the words “to transient guests.” This indicates, defendant contends, that the word lodging by itself does not connote occupancy of limited duration and therefore the terms “lodging” and “dwelling” should be considered interchangeable. The government responds that defendant does not

4 The private club exemption was introduced in Senator Dirksen’s amendment to his own substitute bill. The original wording was: Nor shall anything in this title prohibit a bona fide private club from limiting the sale, rental, or occupancy of dwellings which it owns or operates for other than a commercial purpose to members of the club or from giving preference to such members. Senator Kuchel subsequently introduced an amendment that substituted the word “lodgings” for “dwellings,” deleted the word “sale,” and added the language “as an incident to its primary purpose or purposes.”

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provide “lodgings” because its bungalows are “dwellings” in the sense of summer residences, not temporary accommodations as Congress intended.

Although the district court recognized that a distinction might be drawn between “dwelling” and “lodging” on the basis of the duration of contemplated occupancy, it did not agree that Congress intended this distinction to have any significance. We do not think that this conclusion comports with Congress’ deliberate substitution of the word “lodging” for “dwelling” and the plain statement of intent repeatedly expressed by Senator Kuchel, the amendment’s sponsor, that the language modifications were designed “to tighten [Senator Dirksen’s] amendment as much as possible to avoid possible abuse.” Therefore, we conclude that defendant has not shown that it provides “lodgings” as required by condition (2) of the private club exemption.

The government also argues that the defendant fails to satisfy condition (3) because the private club exemption, by its express terms, applies only to the “rental or occupancy” of lodgings, not to their sale. Thus, the government claims that even if defendant were found to meet all the other conditions of the private club exemption, it cannot protect the discriminatory sale of dwellings by its annual members. Again, the government asserts that this interpretation is borne out by the legislative history which indicates that the word “sale” was deleted at the same time that the word “lodging” was substituted for “dwelling.”

At oral argument, defendant responded to the government’s argument, contending that it meets the “rental or occupancy” requirement. Defendant’s argument is that by limiting the sale of the bungalows to Catholics, the club is limiting the occupancy of the bungalows and the rental of the ground on which the bungalows sit. So, defendant argues, the club is “in effect” limiting the occupancy and rental of lodgings.

Although the district court noted the government’s argument, it did not address the government’s position. We believe that the plain language of the exemption and the legislative history of the Act exempt only the “rental or occupancy” of lodgings, not their sale. So, even though limiting the sale of bungalows to Catholics might have the effect of limiting the rental or occupancy of lodgings, we conclude that defendant’s policy and practice of discriminating against persons in the sale of bungalows falls outside the plain language of the private club exemption.

We conclude that defendant has failed to show that the bungalows are lodgings and that its restrictions upon the sale of bungalows are merely limits on “rental or occupancy.” Therefore, we conclude that as a matter of law defendant has not met its burden of proving that it falls within Title VIII’s limited statutory exemption for private clubs. ...

MANSMANN, Circuit Judge, dissenting. I dissent because I believe that the panel majority, in construing the religious exemption from the Fair Housing Act, unduly minimizes significant connections between the Columbus Country Club and the Catholic Church. By insisting that a formal hierarchical relationship be established between the Church and the Club before the exemption may be invoked, the majority reaches a result which, in my view, was not anticipated by those drafting the Fair Housing Act. The narrow construction of the exemption has potentially significant implications for those wishing sincerely to live and associate in religious community.

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It is important to note, at the outset, that this case is the first … to construe the Act’s religious exemption provision.1 This has not been a fertile ground for litigation and I believe that our analysis should reflect that fact, by being firmly grounded in the statutory language and the facts of this case.

I. In order to assess the majority’s conclusions regarding the inapplicability of the religious exemption, I must detail the history and dimension of Columbus Country Club’s connection with the Roman Catholic Church. It is against this background that the statutory exemption must be evaluated.

The Columbus Country Club was organized in 1920 by the Knights of Columbus, a Roman Catholic men’s organization. In 1922, while members were still required to belong to the Knights of Columbus, title to the land was taken in the name of a separate non-profit corporation. In 1924, the Club was given its current name and, in 1936, the Club eliminated the requirement that members be affiliated with the Knights of Columbus; membership continued to be limited to Catholic males.

As the majority points out, the Club’s annual members are required to be members in good standing of the Roman Catholic Church. Prospective annual members are required to obtain the endorsement of an annual member and complete a one-page application form containing, among other things, the name of the prospective purchaser’s parish. The applicant must demonstrate that he or she, too, is a practicing Roman Catholic in good standing with his or her parish church; a statement to this effect from the parish priest must accompany the application.

The Club contends that, from its inception, religious expression has been an integral feature of the Club community. When the Club opened, the grounds were dedicated in a special ceremony led by the organization’s spiritual director and two priests. During the period from 1920-1922, a special mass was celebrated each Sunday in the local parish for the benefit of Club members.

In 1922, and for the succeeding sixty-eight years, the Archbishop of Philadelphia has granted the Club special permission to have mass celebrated in a chapel on the Club grounds on each Sunday of the summer season. The Catholic Archdiocese of Philadelphia provides the Club with the services of a priest who celebrates the weekly mass and leads other special religious ceremonies observed by the Club members.

Family members meet in the chapel each summer evening to pray the rosary and a consecrated statue of the Blessed Mother stands in an area of the grounds known as the “grotto.” Both the chapel and the grotto are maintained by club members and the Sunday offering taken in the chapel is remitted to the local parish.

The affidavit of Reverend Richard J. Fleming, pastor of the parish in which the Club is located, was appended to the Club’s motion for summary judgment. [It] states that because Columbus Country Club, “a community of Roman Catholic families who live, pray, and worship together through the summer months ... is a Roman Catholic organization, the Archdiocese of Philadelphia provides it with the special privilege of

1 While the panel majority cites Hughes Memorial Home as having interpreted Title VIII’s religious exemption, that court did not address the exemption substantively as it determined, initially, that the exemption was totally inapplicable to the facts presented.

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celebrating mass on its grounds. This is a very rare and unusual privilege.” The affidavit also establishes that a parish priest celebrates mass at the Club on the Fourth of July and on August 15, a holy day of obligation. Club families take an active role in celebration of the Mass which, each week, is said in honor of the deceased members of a particular Club family.

The same affidavit notes that the statue of the Blessed Mother on Club grounds was consecrated by a priest in a special ceremony for the benefit of Club families and the Club is in the process of applying for the special privilege of having the chapel named in honor of a woman soon to be canonized a saint.

Church doctrine recognizes the value of the assembly of a community of believers as an integral facet of the practice of Catholicism. Furthermore, the affidavit states that “the Roman Catholic church recognizes and approves of the assembly of a group of Roman Catholic families for a summer retreat of weekly worship and daily prayer together as a valuable and legitimate exercise of their religious beliefs.”

II. Congress drafted the religious organization exemption broadly to apply to any “religious organization, association, or society or any non-profit institution or organization operated, supervised or controlled by or in conjunction with a religious organization....” 42 U.S.C.§3607(a). Given the use of the disjunctive form here, the Club argues that Congress intended that the statutory exemption apply to any non-profit organization that is “operated by” or “supervised by” or “controlled by” or “operated in conjunction with” or “controlled in conjunction with” a religious organization. The district court found that, at the very least, the Club operated in conjunction with the Roman Catholic Church, and was, therefore, entitled to the Act’s religious exemption:

[A]lthough, as a strictly legal proposition, the Roman Catholic Archdiocese does not actually “control” the club or its operations, it is clear that the persons who, over the years, have operated and controlled the club have do so “in conjunction with” their continuing obligations as members of the Roman Catholic faith. As a practical matter, by virtue of its ability to grant or withhold the privilege of holding services in the Club chapel—a privilege which is central to the traditional operations of the club—the Archdiocese does possess a very significant degree of control over the club itself.

The majority, evaluating all of the undisputed facts detailed above …, concludes, surprisingly to me, that the Country Club has not carried the burden of establishing entitlement to the religious organization exemption. According to the majority, the words “in conjunction with” imply a “mutual relationship between a non-profit society and a religious organization. The existence of this relationship cannot depend solely on the activities of the non-profit organization nor be viewed only from its perspective.” The majority concludes that “[w]ithout further evidence of interaction or involvement by the Church, we cannot conclude that as a matter of law the Church controlled the defendant or that the defendant was operated ‘in conjunction with’ the Church.”

This result is not compelled by the text of the exemption itself. The language of the exemption does not focus solely upon “control” or “mutuality” but describes a number of different types of relationships which serve to bring an organization within the terms of the exemption. The majority’s reliance on equivocal legislative history notwithstanding, I think it clear that the Columbus Country Club, under the terms of the

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statute itself, qualifies for the religious organization exemption. If Congress had meant to make control or mutuality the determinative evaluative criterion, it certainly would have expressed this intention more clearly. The exemption here must be interpreted at least as broadly as the common meaning of its text, rather than restricted to circumstances far more narrow than the meaning conveys. The majority approach simply is not supported by the plain language of the exemption.

III. Even if a mutuality standard were clearly expressed…, I would find that that standard has been met. In examining the history of Columbus Country Club and, the uncontroverted details of its connections to the Catholic church, I find it difficult to imagine what more the panel majority could want in terms of mutuality. The Club has operated to support the Church, both monetarily and by its members’ living and practicing the tenets of the Roman Catholic faith. The Church, in turn, has supported the Club, by participating in its founding, by providing prayer support and by making clergy available to the community where it does not do so in other cases; the Church’s provision of a priest to conduct services is central to the Club’s purpose and philosophy and, as the district court concluded, certainly provides the Church with a substantial measure of de facto control over Club operations. The Church has, in fact, exercised its influence over the Club in bringing it into compliance with the Church’s policy against sex discrimination.

Throughout this litigation, the government has taken the position, which the majority apparently accepts, that the Columbus Country Club is nothing more than a homeowner’s association whose “one link” to the Church—the weekly mass—is not sufficient to support exemption from the Fair Housing Act. In the government’s view—again tacitly adopted by the majority—the extremely narrow interpretation of the exemption’s phrase “in conjunction with” is appropriate. Otherwise, the argument goes, any group of persons holding the same religious beliefs could exclude others from their housing development simply by calling themselves a religious organization and arranging for a local church to hold certain services on the development’s grounds.

Where the legislative history underlying this exemption is, by the majority’s admission, scant, there is no guiding caselaw, and the wording of the exemption itself is quite broad, I think it inadvisable to read into the exemption a requirement of formality that is not clearly expressed. This is especially so given the first amendment implications of this case.

I conclude that the uncontroverted record does not support the conclusion that the Club is nothing more than a homeowner’s association bent on excluding non-Catholics. The religious dimension of this Club is substantial and does not, as the parties agree, represent a subterfuge to evade the requirements of the Fair Housing Act. The Club’s organization and religious character preceded enactment of the Fair Housing Act by more than 48 years and there is not the slightest indication of bad faith in the Club’s having limited its annual membership to those of the Catholic faith. Subjecting the Club to the Fair Housing Act will destroy its character as a religious community where like-minded individuals are able to support one another, communally express their beliefs and model their values to their children. I cannot believe that this was the kind of “wrong” which the Fair Housing Act was drafted to remedy. From a policy viewpoint, the conclusion reached by the majority here today may have far-reaching impact on groups such as

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church camps, retreats and other organizations through which individuals associate to practice their faith.

UNITED STATES v. LORANTFFY CARECENTER

999 F. Supp. 1037 (N.D. Ohio, 1998)

SAM H. BELL, U.S. District Judge. … In Copley, Ohio, there is a place where elderly immigrants from Hungary can enjoy the care and services of assisted living within a community of others with backgrounds similar to their own. That place is the Lorantffy Care Center [(“LCC”)]. Tibor Domotor established LCC with the idea that Hungarian immigrants deserve a place of their own as they grow older and need care. Domotor knows first-hand the challenges of adjusting to life in a place far from one’s native land. In 1956, he fled Hungary as revolutionaries challenged the totalitarian government backed by the Soviet Union. He came to the U.S. as a minister of the Free Hungarian Reformed Church. After ministering to other Hungarian immigrants in northern Ohio, he came to Copley … to serve as Minister of the Christ Reformed Church.

… Reverend Domotor established the LCC with the support of his church’s council and congregation. LCC, a non-profit corporation, maintained a legal identity separate from the church. But it has always maintained close ties with the church from which it sprung. Church members gave the $200,000 needed to build LCC. The church and LCC share physical and personnel resources, and LCC gives church members first priority in securing beds in its facility. LCC’s charter provides that if LCC ever ends its operations, the church will receive all of its assets and claims.

While all of this appears to be admirable, the government contends that it is not admirable in all respects. In particular, the government asserts that LCC has engaged in a pattern and practice of discrimination against applicants for its services simply because those applicants were African-Americans. This, the government argues, violates both the letter and the spirit of the FHA.

The government reached its conclusion after conducting various tests at LCC… . Using eleven individuals in all, it sent groups of testers to LCC posing as persons interested in admitting an elderly relative. The government wanted to see whether LCC and its employees were treating blacks and whites differently when they asked about a securing a LCC bed. In each test, a black tester and a white tester would visit LCC separately on behalf of a similarly-situated relative. Each asked about current availability, and how long it would take for a space to become available. These conversations were recorded on audio tape, and then compared to determine whether or not LCC employees gave less favorable service or treatment to the black testers.

After reviewing the tapes, the government decided that black testers did receive inferior treatment. They found that in different tests, black testers were consistently told of longer waiting periods and longer waiting lists. Black testers were also less likely to be asked to give a phone number so that a LCC employee could call if a bed became available. None of the white testers represented that they were of particular European or Hungarian ancestry, or belonged to any particular church.

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The government also uncovered various statements made by Reverend Domotor and other LCC staff. The government charges that the statements further reveal a hostility towards the admission of blacks at LCC. For example, Gerri Basso, a former Director of Social Work at LCC, recalled comments made by Domotor after an African-American woman inquired about admitting a family member. According to Basso, Reverend Domotor commented said that while the woman was “obviously educated” or “obviously more cultured,” LCC did not “want to start that here.” Basso also testified about an occasion when Defendant Betty Vargo spoke to a prospective applicant on the telephone. After Vargo hung up, Basso contends, she commented that the caller “sounded black” and that “we don’t want any of those.” Basso further testified that Defendant Elizabeth Schmidt confirmed to other LCC employees that LCC did not want to start admitting black residents.

Based on such information, the government filed the instant suit against LCC and four individuals associated with the facility: Reverend Domotor, Elizabeth Domotor, Elizabeth Schmidt and Betty Vargo. In its complaint, the government alleges that the defendants: (1) refused to rent or make available a dwelling because of race or color, in violation of 42 U.S.C. §3604(a); (2) made or published statements in connection with the rental of a dwelling that shows an intention to discriminate on the basis of a race or color, in violation of 42 U.S.C. §3604(c); (3) represented to individuals based on their race or color that available dwelling units were not available, in violation of 42 U.S.C. §3604(d). … The defendants vehemently deny the government’s charges. …

[The FHA] specifically exempts certain housing decisions from its requirements. The defendants argue that one such exemption applies in this case. … At all times, LCC, not the government, bears the burden of proving that it is exempt from the Act. Defendants specifically claim that LCC is exempt from the Act under the so-called “religious organization exemption.” … 42 U.S.C. §3607(a). …

The government does not concede that LCC is exempt as a religious organization. But it focuses its argument instead on the scope of the exemption, even if LCC does qualify. The government first notes that the exemption permits qualified religious organizations only to prefer members of the religion over non-members. The exemption does not, it continues, permit a religious group to prefer non-blacks to blacks when it selects from among those individuals whose religious identity is unknown. The government then notes that, in its complaint, it specifically claims that LCC gave preferential treatment to non-blacks over blacks, without considering whether the non-blacks were members of the Reformed Christ Church. As a result, the government concludes, the exemption simply does not apply in this case.

The court agrees. First, the court must always construe any exemption to the Act narrowly. Second, when Congress considered the FHA, it recognized that the Act might impose an undue burden on various religious organizations which, without any discriminatory animus, merely sought to provide to housing for its members. Thus, Congress made it clear that these organizations could, under certain circumstances, give preference to their members, without any fear of liability under the Act. This is not, however, the liability which the government charges in its complaint in this case. Here, the government charges that LCC did not take its applicants’ religious, or even ethnic, membership into account at all. It further charges that among this non-selected group,

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LCC preferred non-blacks to blacks. Consequently, it is irrelevant to this case whether LCC is entitled to the exemption, because the exemption is limited to actions which are not the subject of the government’s challenge. …

… The defendants first argue that the government did not appropriately test LCC’s procedure for admitting residents… . In Havens, the Supreme Court discussed the role of “testers” in ferreting out racial discrimination in housing. … The Court initially noted the importance of controlled testing. It then held that testers even had standing under the Act to bring claims in their individual capacity, despite the fact that they had no actual interest in purchasing or renting a dwelling. … Other courts have similarly found that “it would be difficult indeed to prove the discrimination in housing without this means of gathering evidence” and that “the evidence provided by testers is frequently valuable, if not indispensable... .” Hamilton v. Miller, 477 F.2d 908, 910 n.1 (10th Cir. 1973); Richardson v. Howard, 712 F.2d 319, 321 (7th Cir. 1983). While conceding that testing is not in itself impermissible, Defendants note that the testers in this case simply walked into LCC and asked about bed availability. They then note that most residents at LCC are referred by a hospital and carefully assessed to make sure that they are medically suitable for care at LCC. As a result, Defendants conclude, the tests were not at all representative of the actual admissions process, and reveal nothing about any discriminatory intent in the admission process.

This conclusion misses the broader purpose of the FHA. Clearly, the Act prohibits discrimination in the sale or rental of a dwelling, including the admission of residents to a nursing home. Cf. Harsons, Inc. v. Township of Brick, 89 F.3d 1096, 1102 (3rd Cir. 1996) (holding that a nursing home is a “dwelling” under the terms of the FHA). But it also recognizes that decisionmakers can discriminate against applicants long before they reach the point of deciding whether to accept an application. They may discriminate in how they solicit and encourage applications. They may discriminate in how they treat applicants who ask questions about the dwelling, and in the process by which they inform applicants about a residency opening. They may also discriminate in the terms of residency which they offer to an otherwise successful applicant. All of these actions might discourage an interested person from pursuing an application to the point of ultimate decision. Consequently, these actions might be just as effective in limiting housing opportunities for members of a protected group as any policy which ultimately turns them away on the basis of their group membership.

Defendants may be accurate in that LCC does not usually admit residents on the basis of a walk-in inquiry. They also may be accurate in that the government offers no evidence that LCC unlawfully discriminates in admitting residents from hospital referrals, its usual practice. However, the government does offer sufficient evidence that LCC engaged in a pattern and practice of treating black “walk-ins” less favorably than their white counterparts. If true, this clearly violates the FHA. …

DISCUSSION QUESTIONS

107. Columbus Country Club holds that summer homes are “dwellings” within the meaning of §3602(b). What statutory arguments support the court’s decision? What

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policy arguments could you make about whether summer homes should be considered “dwellings”?

108. Why does the defendant in Columbus Country Club fail to qualify for the private club exemption? What might be the purpose of that exemption? Is it met here?

109. Columbus Country Club holds that the defendant does not qualify for the “religious organization” exemption of §3607(a). What test does the court develop for determining whether a housing provider qualifies for that exemption? What evidence suggests the test is met here? What evidence suggests it is not? Does the majority or the dissent have the stronger argument on this point?

110. What is the purpose of the religious exemption? Is it met in Columbus Country Club? Note that the exemption allows qualified defendants to discriminate on the basis of religion or sex or handicap, but not race or color or national origin. Does this make any sense?

111. The defendants in Lorantffy Carecenter argued that the government’s testing was improper. What was the basis for this claim? Do you agree with the way the court handled it?

112. If the defendants in Lorantffy Carecenter had been engaging in religious, rather than racial discrimination, would their facility have qualified for the religious exemption under the analysis employed in Columbus Country Club? Is it the sort of facility that should be covered by the exemption?

2. Smallholders’ Exemptions

SINGLETON v. GENDASON545 F.2d 1224 (9th Cir. 1976)

HUFSTEDLER, Circuit Judge. The appellants appeal from a summary judgment in favor of the appellees, the Gendasons, in a housing discrimination suit brought under Title VIII … and under the Civil Rights Act of 1866. The district court held that the single-family exemption, 42 U.S.C. §3603(b)(1), removed the appellees’ conduct from Title VIII; and … that the appellants’ Section 1982 claim was similarly barred. Apparently, the lower court concluded that since Title VIII and Section 1982 both deal with housing discrimination, any exemption barring a Title VIII action should also bar a suit brought under Section 1982. We hold that Section 3603(b)(1) does not bar the appellants’ Title VIII claim, and we remand both the Title VIII and Section 1982 claims for relief.

The appellants are three black women who allege that the appellees racially discriminated against them in refusing to rent them an unfurnished three-bedroom single-family house in San Francisco in 1974. Appellees were lessees of the house and were seeking a sublessee for it. The owners of the house (the appellees’ lessors) are Lola and Selig Eisenberg. The availability of the house was advertised in the San Francisco Chronicle and at a rental service known as “Rosalie’s Rentals and Realty” (“Rosalie’s Rentals”). Rosalie’s Rentals is a rental organization that receives notices of available housing from various landlords and compiles a list which it then sells for a fee to persons

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seeking housing. According to the appellees, the only other contact Rosalie’s Rentals has with a landlord is to determine whether an apartment or a house is still available for rent. Rosalie’s Rentals receives no commission from a landlord and makes no appointments between landlords and prospective tenants. The appellants allege that they found the appellees’ house through the advertisements in the Chronicle and at Rosalie’s Rentals. ...

The appellees fail to satisfy their burden in arguing that §3603(b)(1) exempts them from the prohibitions of Title VIII. ... Tenants of a dwelling cannot claim the protection of §3603(b)(1) because that exemption is only available to owners.3 The Gendasons, as tenants, claim that despite the express language in the statute their conduct is exempt because they acted as agents of the owners. The record does not support their claim. To be sure, the complaint alleged that the Gendasons were agents of their lessors, but the Gendasons’ answer denied that allegation. Furthermore, even if an owner’s agent would be deemed an “owner” under the exemption, triable issues of fact as to the nature and scope of the claimed agency are raised by the record which foreclose summary judgment.

Assuming, arguendo, that the Gendasons could avoid that barrier, they have not succeeded in showing that their use of Rosalie’s Rentals did not deprive them of the protection of the exemption. Section 3603(b)(1) does not exempt the rental of single-family houses from the obligations of §3604(a) when the services of a real estate broker or any person in the business of renting dwellings are involved in the rental transaction. The appellees claim that Rosalie’s Rentals is not a real estate broker or organization in the business of renting dwellings.

Rosalie’s Rentals is not a real estate broker, dealer, or agent, but the services it offers fall within the broad category of services embraced in the language “business of renting dwellings.”4 Congress intended to make fair housing available to persons who have been the victims of discrimination. This purpose is clear from the words of Title VIII: “It is the policy of the United States to provide, within constitutional limitations, for fair housing throughout the United States.” §3601. To further that purpose, Congress severely restricted the exemption of owners by broadly defining the category of persons the use of whose services would defeat an exemption otherwise available. The single-family dwelling owner can escape the rigors of §3604(a) only if he goes his

3 The legislative history of Title VIII indicates that Congress intended that the word “owner” in §3603(b)(1) be given its plain meaning. One of Title VIII’s most vigorous opponents so concluded in discussing the companion exemption to §3603(b)(1) even though his conclusion admitted a wider application of the bill:

Furthermore, the limited exemption relating to four-unit dwellings contained in the pending amendment applies only to owners. It would not protect a person who was himself renting or leasing his home and taking in boarders. A person in this category would still be compelled to meet all the burdensome requirements of the act and throw open his private home to any one who wanted to move in with him.

Remarks of Senator Stennis in 114 Cong.Rec. 3345 (February 19, 1968).4 Section 3603(b)(1) itself enumerates those members of the real estate industry, the use of whose services would not deprive the single-family owner of his exemption. (E.g., “attorneys, escrow agents, abstractors, title companies, and other such professional assistance as necessary to perfect or transfer the title.”) Multiple listing services … are not included among them.

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discriminatory way alone. If he seeks the help of others who furnish any rental service for compensation, he forfeits his exemption. Rosalie’s Rentals performs such services by selling its lists of rental units.6

Giving multiple listing organizations like Rosalie’s Rentals special treatment under §3603(b)(1) would be contrary to the spirit of Title VIII. Nor does it make any practical sense to distinguish between Rosalie’s Rentals and other organizations in the business of renting housing. Both are capable of the kind of racial discrimination that Title VIII was designed to prohibit. A multiple listing service, like a real estate broker, can participate in racial steering by giving special lists to black customers. The humiliation suffered by black homeseekers is the same, whether at the hands of a real estate agent or a multiple listing organization. Calling Rosalie’s Rentals a “library” or a source of housing information does not distinguish it from that part of a real estate broker’s business which also provides information about the availability of housing. Nor does the labeling of Rosalie’s Rentals as a “finder” improve the attempted distinction since a real estate broker can be similarly characterized.7 As the district court observed:

... [A] client or a member of the public may go to the so-called rental library just as he may go to a real estate broker. He may be supplied with a rental library, with a list of available properties just as he might be supplied such a list from a real estate broker. He takes that list, just as he would a list from a real estate broker and looks at the various properties and decides if he wants any and as in such cases involving real estate brokers, the negotiation may [sic] directly with the landlord, so in this case the negotiations are always with the landlord who makes the determination as to whether to rent or not.8

What remains is a naked charge of racial discrimination. The use of Rosalie’s 6 The legislative history of §3603(b)(1) is illuminating. The Senate rejected an amendment which would have permitted a single-family homeowner to discriminate while using the services of a real estate broker so long as he did not instruct the broker to discriminate. In his criticism of the proposed amendment, Senator Percy said: “I am for plugging every loophole in this bill.... I am earnestly entreating the Senate once and for all, to mean what we say in this country when we advocate equality of opportunity for all people.” To permit an owner to discriminate in the rental of his home when he utilizes the services of a multiple listing business, such as Rosalie’s Rentals, but not when he uses the services of any other organization in the rental business would be the creation of just such a loophole. Furthermore, Congress drafted Title VIII with intent to remove those economic pressures on the real estate industry that force it to discriminate:

... Continued exemption of most housing from Federal nondiscrimination requirements offers ammunition to those who attack present requirements on the ground that they unfairly single out certain categories of persons and firms and place them at a competitive disadvantage. Time and again the Committee has been told by builders, real estate brokers, and apartment house owners that their discriminatory actions have been motivated by business reasons, not personal prejudice. A uniform fair housing law, by covering the entire housing market, would enable them to offer housing to all without fear of suffering business loss.

Hearings on … the Proposed Civil Rights Act of 1967, Before the Subcommittee on Constitutional Rights of the Senate Comm. on the Judiciary, 90th Cong., 1st Sess. pp.207-208.7 Indeed, for purposes of licensing, California has placed real estate brokers and multiple listing organizations such as Rosalie’s Rentals in the same subset. Cal. Bus. & Prof. Code §10131(a).8 Our determination that the appellees’ use of Rosalie’s Rentals destroys their claim to the single-family house exemption is not intended to impute any illegal discriminatory conduct to Rosalie’s Rentals.

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Rentals stripped the appellees of any claim to the single-family house exemption notwithstanding their ability to prove that they were otherwise entitled to the exemption as owners. This determination compels reversal. The district court did not consider the appellants’ §1982 action because the court concluded that it, too, was barred by the single-family house exemption. Since we hold that exemption is not applicable to the present case, the district court, on remand, will reconsider the existence of any claim for relief that the appellants may state under both Sections 3604 and 1982.

DISCUSSION QUESTIONS

113. What are the purposes of the exemptions for single family homes (§3603(b)(1)) and for owner-occupied dwellings housing no more than four families(§3603(b)(2))? Are they the same? Do the purposes justify either exemption (or both)?

114. What is the difference between §3603(b) and the approach taken by Wisconsin in Wisc. Stat. §106.04(5)(em)? Which do you prefer?

115. The court in Singleton finds that the §3603(b)(1) defense is unavailable because the defendants are tenants trying to sublet. Is this holding supported by the statutory language? By the policy behind the exemption?

116. Singleton also holds that the use of a multiple listing organization removes the exemption because of the language of §3603(b)(1)(B). What is the purpose of this provision? Would the exemption apply if a real estate broker tried to sell her own house and she otherwise met its requirements?

LAMB v. SALLEE

417 F.Supp. 282 (E. D. Ky. 1976)

SILER, District Judge. This action was brought under 42 U.S.C. §§3601 et seq., 42 U.S.C. §§1981, 1982, and the Thirteenth Amendment to the U.S. Constitution. Trial without a jury was held... . The following facts were found by the Court… .

1. The plaintiff Carmella Lamb ... is a black citizen of the United States, but appears to be white. The plaintiff James Randall Roberts ... is a white citizen of the United States. They were not married, but lived together.

2. [D]efendants Bennie and Beulah Sallee were owners of a single-family house known as # 8 Stevies Ridge Road (hereinafter “house”) located in Erlanger, ... Kentucky. In addition, they owned two other single-family houses and one duplex housing unit that were kept for rent. They also owned the home in which they lived.

3. At the time of the acts complained of, the house had been placed by the defendants on the open market for rental.

4. On August 14, 1975, the defendant, Beulah Sallee, acting as business agent for herself and her husband, offered to rent the house to the plaintiffs for $200.00 per month with no lease and a $100.00 deposit, occupancy to begin on September 1, 1975.

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5. Plaintiffs were willing to rent the house on the terms specified by the defendant.

6. Plaintiffs communicated this willingness to Mrs. Sallee on August 14, 1975, at a time when the property was available for rent and Lamb wrote a check in the amount of $100.00 for the deposit which was tendered to and accepted by Mrs. Sallee.

7. Plaintiffs started moving into the leased premises on Saturday, August 23, 1975, and were assisted in moving by Lamb’s mother, sister, and brother, all of whom are black citizens of the United States. Unlike Lamb, they appear to be black.

8. On Sunday, August 24, 1975, defendants, having heard complaints from neighbors of the house that blacks were there assisting in the move and having learned from plaintiff that the people who helped them move were members of Lamb’s family, refused to allow them to continue moving in.*

9. Defendants’ actions constituted a refusal to rent the house to plaintiffs on terms which defendants had previously indicated would be otherwise satisfactory, and were based solely upon the fact that Lamb is a member of the Negro race.

10. Plaintiffs removed their possessions from the ... house on Monday, August 25, 1975.

11. Mrs. Sallee gave plaintiffs a check for $115.00, refunding their $100.00 rent deposit and reimbursing them for the $15.00 fee required to initiate water service for the house. The water company also refunded the latter fee to plaintiffs. ...

13. Each plaintiff was humiliated and suffered emotional and mental anguish as a result of defendants’ actions.

14. Defendants’ actions were willful and made in bad faith. They knew or should have known that fair housing is the law of the land. ...

DISCUSSION. ... [A]s to plaintiffs’ cause of action under the Fair Housing Act..., the defendants own, in addition to the house in which they live, four other houses which they rent. However, one of these is a duplex. ... The Court has found no authority construing §3603(b)(1) and counsel for the respective parties have cited none. However, in the Court’s opinion, the language of the Act precludes the possibility that a duplex can be considered a “single-family house” within the meaning of the statute. In addition, the language excepting from the Act owners who do not own more than three “such single-family houses” obviously refers to “sold or rented” houses and not to a private owner’s personal residence. Therefore, the defendants own only three single-family rental houses

* [In a portion of the opinion edited out of these materials, the court explained what happened in more detail:

[T]here is no apparent reason for defendants’ action other than Lamb’s race. Defendants did not dispute Lamb’s testimony that she explained to Mrs. Sallee that she and Roberts were not married but “were living together.” In fact, Mrs. Sallee testified that she and Lamb talked Roberts into agreeing to rent the house. Lamb testified that, when she and Roberts brought a lot of possessions into the house on Sunday, August 24, Mrs. Sallee stated, “I hear you had some colored people helping you to move in.” Lamb replied, “Yes, they are my family.” Whereupon, Mrs. Sallee said, “Oh, we just can’t. You can’t move in. They’ll burn down all my houses.” This conversation was substantially confirmed by the testimony of Roberts. Lamb and both defendants testified that when Mr. Sallee was consulted, he stated that he “didn’t think it would work.” ... ]

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and do not come within the Act. [The court went on to find that defendants had violated §1982 and awarded the plaintiffs actual and punitive damages and attorneys’ fees.]

HOGAR AGUA Y VIDA EN EL DESIERTO v. SUAREZ-MEDINA36 F.3d 177 (1st Cir. 1994)

CYR, Circuit Judge. Hogar Agua y Vida en el Desierto (“HAVED”), a nonprofit organization which operates group homes for persons infected with the Human Immunodeficiency Virus (“HIV”), brought a civil action ... alleging discriminatory conduct by defendants-appellees in violation of the Fair Housing Act. The district court ruled that the principal defendants, Jorge Suarez Medina and Baudilla Albelo Suarez..., were exempt from liability under the FHA by virtue of the “private individual owner” provision which applies to persons who own less than four “single-family houses.” …

I. Background. In September 1992, appellant HAVED entered into an oral agreement with Suarez to rent, with option to buy, two houses located on an undivided lot in ... Corozal, Puerto Rico. Upon learning that HAVED intended to use the site as a group home for persons infected with HIV, defendants Milton Dolittle and Antonio Padilla organized neighborhood opposition and threatened and coerced Suarez into reneging on the rental-sale agreement. HAVED ... initiated the present action charging defendants Suarez, Dolittle and Padilla with violations of FHA §§3604 and 3617, and Suarez with breach of contract .... Suarez moved to dismiss the complaint ... citing FHA §3603(b)(1)….

A. The Suarez Properties. At the time of the September 1992 rental-sale agreement with HAVED, Suarez owned four separate parcels of land on which were located five structures. First, the “Los Llanos Property,” the subject of the abortive rental-sale agreement, consists of one undivided lot containing two unattached residences. Suarez holds undisputed title to the entire lot and one residence (House A) where the Suarezes once resided. Their son built the second house on the lot (House B) as a residence for his own family. However, Mr. Suarez, Sr., was robbed while residing in House A, and the Suarezes and their son moved away from Los Llanos. Houses A and B remained unoccupied at the time of the HAVED-Suarez rental-sale agreement.

Second, the “Guarico Residence,” ... was designed as a two-story house with a separately equipped, single-family apartment on each floor. Suarez held title to the lot and the house. At the time of the rental-sale agreement, the Suarezes resided primarily in the second-floor apartment, and the son and his family resided in the first-floor apartment. Due to his physical impairments, however, Mr. Suarez, Sr., sometimes lived “interchangeably” with his son’s family in the first-floor apartment. The district court ruled that the Guarico Residence constituted one single-family house.

Third, the “Guarico Rental” is a two-story, single-family structure located near the Guarico Residence but on a separate lot. At the time of the rental-sale agreement, Suarez held title to the house and the lot, and the house was being rented to a single family.

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The fourth real estate parcel, the “La Aldea Rental,” is a single lot ... containing a one-story structure which Suarez purchased in April 1991, and rented to a single family (Apartment 1). Prior to the rental-sale agreement, however, Suarez renovated the basement of the building into a separate apartment (Apartment 2), and it was rented to another tenant.

B. The District Court Proceedings. Following an evidentiary hearing, the district court dismissed the HAVED complaint.... Pursuant to Provisos 1 and 3 of §3603(b)(1), the court ruled that at the time of the rental-sale agreement with HAVED in September 1992, Suarez had a bona fide ownership interest in only three “single-family houses” (hereinafter: “SFH” or “SFHs”): (i) the Guarico Rental, (ii) the La Aldea Rental (Apartment 1), and (iii) the La Aldea Rental (Apartment 2).

Thus, the district court explicitly declined to treat three abodes as SFHs. First, the court ruled that the Guarico Residence is not a SFH under FHA §3603(b)(1) because only SFHs that are “sold or rented” can be counted toward the four-SFH threshold. In other words, in the district court’s view a defendant’s current residence is not counted as an SFH under Provisos 1 and 3 unless it is the subject of the sale or rental transaction giving rise to the cause of action under the FHA, or it is “on the market” at the time of the challenged transaction. Second, since Suarez, Sr., had been forced to vacate House A at the Los Llanos Property after the robbery, and to acquire the Guarico Residence, the district court concluded that it would be “inequitable” to treat House A as a SFH under either Proviso 1 or 3.

Finally, relying on the same equitable grounds noted in relation to House A, the district court ruled that House B on the Los Llanos Property should not be treated as a SFH. The court ruled, in the alternative, that House B should not be treated as a SFH because the Suarezes’s son, who constructed House B, was its bona fide owner under Puerto Rico law; whereas the Suarezes simply held an unexercised “right of accession” based on their ownership of the land on which House B is situated.3

II. Discussion. Since the only dispute on appeal concerns the legal sufficiency of undisputed jurisdictional facts, we review the Rule 12(b)(1) dismissal de novo. We conclude, as a matter of law, that the Suarezes’s claim to exemption is precluded by the FHA.

We employ traditional tools of statutory interpretation, particularly the presumption that ambiguous language in a remedial statute is entitled to a generous construction consistent with its reformative mission. See, e.g., Cia. Petrolera Caribe v. Arco Caribbean, 754 F.2d 404, 428-29 (1st Cir.1985) (noting that this canon of construction represents an “especially reliable and legitimate” indicator of congressional intent). This presumption has been relied on consistently by the courts in interpreting the omnibus remedial provisions of the Civil Rights Act of 1968, which … include the Fair Housing Act itself. An important corollary for present purposes is that ambiguous exemptions from FHA liability are to be narrowly construed. See, e.g., Columbus Country Club.

3 The district court implicitly concluded as well that HAVED’s claims against codefendants Dolittle and Padilla under FHA §3617 should be dismissed because the Suarezes are exempt from liability under FHA §3604. Although this ruling is contested by HAVED, we need not reach it.

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From this … perspective we consider which Suarez properties were “single-family houses” within the meaning of Provisos 1 and 3 of §3603(b)(1). The parties agree that two properties—the Guarico Rental and the La Aldea Rental—qualify as “single-family houses” within the meaning of the exemption.4 Thus, given the four-SFH limit established in §3603(b)(1), the FHA exemption cannot stand if the Suarezes were bona fide “owners” of two SFHs in addition to the Guarico Rental and the La Aldea Rental.

A. Los Llanos Property, House A. First, HAVED argues that the district court exceeded its authority by fashioning an “equitable” exception which resulted in the exclusion of Los Llanos, House A, from the four-SFH calculus on the ground that the Suarezes had been forced to vacate the Los Llanos area due to neighborhood crime. Although courts have on occasion engrafted equitable exceptions where rigid adherence to literal legislative language clearly would disserve legislative intent, generally courts are loath “to announce equitable exceptions to legislative requirements or prohibitions that are unqualified by the statutory text.” Guidry v. Sheet Metal Workers Nat’l Pension Fund, 493 U.S. 365, 376 (1990). Moreover, “[w]here Congress explicitly enumerates certain exceptions to a general prohibition, additional exceptions are not to be implied, in the absence of contrary legislative intent.” Andrus v. Glover Constr. Co., 446 U.S. 608, 616-17 (1980). Further, exemptions from the requirements of a remedial statute—like the FHA—are to be construed narrowly to limit exemption eligibility. ...

For the foregoing reasons, we decline to endorse the equitable exception adopted by the district court, especially since Congress elected not to do so when it undertook to narrow FHA liability in §3603(b). Nothing in section 3603(b), nor in its legislative history, manifests a congressional intent to temper either the inflexible four-SFH formula or the categorical “ownership” standard. Thus, we believe these FHA provisions reflect the sort of “considered congressional policy choice” that elevates the “effectuation of certain broad social policies ... over the desire to do equity between particular parties.” Guidry, 493 U.S. at 376. Guidry cautions against creating equitable exceptions to comprehensive remedial statutes in an effort to protect individual defendants from occasional inequities, even inequities attributable to misfeasance by the plaintiffs. Id. (holding that the district court had no equitable power to contravene ERISA’s unqualified anti-garnishment provision by imposing a constructive trust upon pension benefits payable to a former union official who embezzled union funds). The Guidry admonition holds even stronger sway where, as here, defendant-Suarez’s misfortunes were in no sense due to HAVED’s conduct. The Court recognized in Guidry that any attempt to calibrate the precise point at which an individual defendant’s vicissitudes are so “‘especially’ inequitable” as to outweigh the broad prophylactic policies underlying the congressional decision to protect the plaintiff class would immerse the courts in an inappropriate and “impracticab[le]” task.5 4 Absent appellate briefing, we hazard no view on the correctness of their stipulation.5 The cases Suarez cites in support of the equitable exception fashioned by the district court concerned the equitable remedies a district court may impose after a defendant has been found in violation of a statutory prohibition. For example, if the statute empowers the court to restrain violations, and neither expressly nor “by a necessary and inescapable inference [ ] restricts the court’s jurisdiction in equity,” Porter v. Warner Holding Co., 328 U.S. 395, 398 (1946), the court could utilize all its traditional equitable powers or even desist from extending any equitable relief to the plaintiff where the equities warrant. Nonetheless, the latter rubric provides no basis for

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B. The Guarico Residence. HAVED next contends that the district court committed reversible error in not treating the Guarico Residence as a SFH under Provisos 1 and 3 of §3603(b)(1). HAVED argues that nothing in §3603(b)(1) excludes “owner-occupied” houses from the term “single-family house.” Furthermore, HAVED notes, Proviso 2 explicitly qualifies the term SFH (“any such single-family house by a private individual owner not residing in such house at the time of such sale”), a qualification that would be entirely unnecessary if the term “SFH” itself excluded owner-occupied houses.

On the other hand, Suarez says that the Guarico Residence is excluded from consideration under Provisos 1 and 3 because the prefatory clause in FHA §3603(b)(1) (exempting “any single-family house sold or rented by the [defendant]” in a discriminatory manner) suggests that Congress did not intend that any property of the defendant count toward the four-SFH threshold unless that property itself was up for sale or rent at the time of the allegedly discriminatory transaction. Suarez argues that this must be so because the references to “such [SFHs]” in Provisos 1 and 3 can only relate back to the prefatory clause, and incorporate the requirement that only “sold or rented” SFHs are to be included in calculating the four-SFH threshold. Thus, Suarez says, a defendant’s residence normally would not be included as a SFH unless it were on the market at the time of the alleged discriminatory sale or rental. Suarez discounts the value of Proviso 2 as a tool for interpreting the prefatory clause in FHA §3603(b)(1), since Proviso 2 creates a considerably “narrower” and altogether independent exemption that allows one discriminatory sale (but not a rental) of an owner-occupied SFH to be excluded within any two-year period. Proviso 1, on the other hand, creates a “broader exemption” for owners who own no more than three SFHs that are either for sale or rent by the owner.7

The present dispute prompts two inquiries. The first is whether a defendant’s current residence is excluded from the threshold four-SFH calculus under Provisos 1 and 3 simply because it is his primary or current residence, even though all other SFHs owned but not occupied by the defendant are included without regard to whether they were concurrently “on the market.” The second inquiry is whether Congress meant to exclude from the threshold four-SFH calculus all SFHs owned by the defendant (including the primary residence) not on the market at the time the defendant—for discriminatory reasons--refused to sell or rent a different SFH to the plaintiff. We turn to these questions.

extending an FHA exemption by withholding from HAVED all relief against Suarez’s alleged discriminatory refusal to sell or rent the Los Llanos Property. Moreover, even if the court were permitted to withhold injunctive relief, Suarez would be answerable for legal damages (actual and punitive) for any FHA violation. More importantly, however, Suarez could have asserted no cognizable equitable defense in light of the fact that his misfortunes while residing in Los Llanos were in no sense attributable to HAVED.7 Alternatively, Suarez argues that the Guarico Residence is excluded under the so-called “Mrs. Murphy” exemption in §3603(b)(2)…. The “Mrs. Murphy” exemption is totally inapposite, however. It provides an exemption from section 3604 liability. It does not exclude a structure from the Proviso 1 and 3 analyses under §3603(b)(1). See §3604(b) (“nothing in section [3604] ... shall apply to ... rooms and units....”). Thus, the “Mrs. Murphy” exemption could have relevance only if, for example, Suarez had refused to sell or rent one unit in the Guarico Residence to HAVED.

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1. Exclusion for Residence Qua Residence. As its prefatory clause makes clear, the FHA §3603(b)(1) exemption—assuming its four provisos are satisfied—applies to any “single-family house sold or rented by the owner” in a discriminatory manner. For section 3603(b)(1) purposes, therefore, the relevant SFHs in this case are Houses A and B, located on the Los Llanos Property Suarez refused to rent or sell to HAVED. Section 3603(b)(1) neither defines the term “SFH,” nor does its prefatory clause expressly limit the term “SFH” to structures in which the defendant does not reside. Conversely, as Suarez acknowledges, if the Suarezes had refused to rent or sell their Guarico Residence to HAVED, the prefatory clause would not have debarred the Suarezes from a §3603(b)(1) exemption merely because the property being rented or sold was their residence.

The statutory context in which the prefatory clause appears undermines the Suarez contention as well. See Skidgel v. Maine Dep’t of Human Servs., 994 F.2d 930, 937 (1st Cir.1993) (meaning of particular statutory language assessed in light of entire statute). The four §3603(b)(1) provisos do not give rise to four independent exemptions, as Suarez suggests, but represent four cumulative preconditions to the single exemption set out in the prefatory clause. If any of the four provisos is not satisfied, no section 3603(b)(1) exemption is appropriate.

Proviso 2 refers specifically to a discrete subset of the “discriminatory” SFH sales focused upon in the section 3603(b)(1) prefatory clause, namely, sales of SFHs in which the defendant is not residing. If the unqualified term “SFH” in the prefatory clause were intended to embrace only SFHs in which the defendant is not residing, no such further qualification would be needed in Proviso 2. See Mosquera-Perez v. INS, 3 F.3d 553, 556 (1st Cir.1993) (court should avoid interpretations which render any part of statute meaningless). Thus, if the term “SFH,” as used in the prefatory clause, applies to residences and nonresidences, the pendent references to “such [SFHs]” in Provisos 1 and 3 also necessarily encompass the Suarezes’s Guarico Residence qua residence.

Finally, the legislative history discloses no basis for second-guessing the “plain language” of section 3603(b)(1). See Laracuente v. Chase Manhattan Bank, 891 F.2d 17, 23 (1st Cir.1989) (“Absent a clearly expressed legislative intention to the contrary, the plain language of the statute is conclusive.”). As initially introduced in Congress, the FHA contained few significant exemptions from liability, see, e.g., supra note 7 (describing “Mrs. Murphy” exemption), and the breadth of the FHA’s coverage caused vigorous Senate opposition. Senator Everett M. Dirksen proposed to assuage opposition by exempting sales and rentals of “any single-family house sold or rented by an owner residing in such house at the time of such sale or rental, or who was the most recent resident of such house prior to such sale or rental.” Yet even the “Dirksen substitute,” later modified and enacted as Proviso 2, failed to gain enough Senate support. To break the deadlock, Senator Robert C. Byrd proposed the expanded four-part exemption, later codified as present section 3603(b)(1). During floor debate, Senator Byrd offered two illuminating hypotheticals to demonstrate the coverage which would be provided under his proposal, but not under the Dirksen substitute:

A widow owns and lives in a single-family dwelling. She also owns a single-family dwelling across the street, the tenant therein being her daughter. The daughter moves to another State. The widow cannot qualify for exemption under the Dirksen substitute

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because she neither resides in the house across the street—of which she is the owner—nor is the “most recent resident” of such dwelling prior to a subsequent sale or rental.

An individual lives in his own single-family dwelling located on a three-quarter-acre lot. He decides to build a second house on the lot. Ten years later misfortune forces him to parcel the lot and sell the house thereon. He does not qualify under the Dirksen substitute exemption because he is neither “residing in” the adjacent dwelling nor was he the “most recent resident” thereof.

Asked why “it was necessary to raise the number of houses owned by one party to three,” Senator Byrd referred to these two hypotheticals, and noted that he had “already discussed situations in which there would be at least two [single-family] houses involved.” Significantly, both hypotheticals assumed that the houses in which the seller currently resided would be counted toward the four-SFH threshold in Provisos 1 and 3. See Rice v. Rehner, 463 U.S. 713, 728 (1983) (noting that interpretation of statute by sponsor is “‘authoritative guide to the statute’s construction’”); see also Brock v. Pierce County, 476 U.S. 253, 263 (1986) (sponsor’s statements credited if consistent with statutory language). Other senators likewise recognized that the “more than three” threshold would include houses in which the seller resided. See 114 Cong.Rec. 5641 (1968) (“I know we have people who have a summer home or a winter home.... One could easily have three homes.”) (statement of Senator Jordan). Since this legislative history, at the very least, precludes our finding “a clearly expressed legislative intention to the contrary,” Laracuente, 891 F.2d at 23, we must conclude that a defendant’s residence, qua residence, is not to be excluded under Provisos 1 and 3 of section 3603(b)(1).8

2. Exemption for “Off Market” SFHs. Suarez proposes to exclude the Guarico Residence under Provisos 1 and 3 because it was neither for rent nor sale at the time he refused to sell the Los Llanos Property to HAVED. See Lamb v. Sallee. The theory is that the term “such [SFHs]” in Provisos 1 and 3 unambiguously relates back to the complete phrase—”single-family house sold or rented by an owner”—in the section 3603(b)(1) prefatory clause. The language of the statute is not dispositive on this issue, and the interpretation proposed by Suarez is at least plausible.

Although it is conceivable that Congress’s choice of the indeterminate modifier “such” was intended only to require the counting of residences qua residences under Provisos 1 and 3—in direct contrast to the more constricted scope of the term “SFH” 8 The legislative history contains a reference arguably supportive of the Suarez interpretation of Provisos 1 and 3. Senator Byrd suggested that he chose “three” as the threshold figure under Provisos 1 and 3 to match the “Mrs. Murphy exemption,” see supra note 7, which provides an exemption to a resident landlord of multi-family quarters (containing not more than four family quarters) who refuses to rent any family quarters in the building. Senator Byrd noted that “Mrs. Murphy” must live in one of the four family quarters, so as to confine the “protective reach” of the “Mrs. Murphy” exemption “to three units other than the one in which she lives. In my amendment, therefore, I use ‘three’ as the number, in order to have parallel construction.” We note two sound reasons for devaluing this statement. First, as noted, inconsistent expressions of sponsor intent are insufficient to override the plain import of the statutory language. Second, Senator Byrd’s more generalized statements concerning a rough numerical symmetry in statutory construction were preceded by his detailed recitation of the two fact-specific hypotheticals discussed above.

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under Proviso 2—Provisos 1 and 3 reasonably might be read to impose the additional, distinct requirement that any SFH, regardless whether it is the defendant’s “residence,” be counted under Provisos 1 and 3 only if it is a “single-family house sold or rented by an owner.” Indeed, Congress’s choice of words—”sold or rented”—in the §3603(b)(1) prefatory clause is a most curious usage. In order for liability to attach under §3604, a defendant need never have consummated the discriminatory rental or sale of the SFH to which the §3603(b)(1) prefatory clause adverts. Rather, FHA liability attaches as soon as the defendant “refuses to sell or rent after [the plaintiff makes] a bona fide offer,” without regard to whether the SFH is ever “sold” or “rented” to anyone. With these linguistic difficulties in mind, it seems arguable at least, in keeping with the structure and language of the statute, that the term “such,” as used in Provisos 1 and 3, imports the same “on the market” qualification necessarily implicit in the §3603(b)(1) prefatory clause.

As noted earlier, however, normally latent ambiguity in a statutory modifier like “such” should be construed in furtherance of the statute’s remedial goals. See Cia. Petrolera, 754 F.2d at 428. (“When Congress uses broad generalized language in a remedial statute, and that language is not contravened by authoritative legislative history, a court should interpret the provision generously so as to effectuate the important congressional goals.”) Not only does the authoritative legislative history not contravene the HAVED interpretation, it contradicts the Suarez contention. Most importantly, neither hypothetical advanced by Senator Byrd assumed or intimated that the seller’s residence was “on the market” at the time the discriminatory sale of the second house took place, yet Senator Byrd included both these SFHs under Provisos 1 and 3. Notwithstanding a conceivable vestige of literal ambiguity, therefore, we are persuaded to the view that the Guarico Residence must be included in the four-SFH calculus under section 3603(b)(1) consistent with the FHA’s legislative history and its broad remedial design.9

III. CONCLUSION. At the time HAVED was denied the opportunity to acquire the Los Llanos Property, allegedly on discriminatory grounds, Suarez held an undisputed ownership interest in “more than three” “single-family houses”: the Guarico Rental, the La Aldea Rental, the Los Llanos Property, House A, and the Guarico Residence. Since Suarez cannot satisfy either Proviso 1 or Proviso 3, the alleged discriminatory refusal to proceed with the HAVED rental-sale agreement relating to the Los Llanos Property did not qualify for exemption under §3603(b)(1). The district court judgment is vacated. The case is remanded for further proceedings consistent with this opinion. …

DISCUSSION QUESTIONS117. What is the purpose of the first proviso of §3603 (B)(1)? The court in Lamb held that the defendants fell within this proviso. Is this holding supported by the language of the provision? By the policy behind it?

9 The only case to address this precise issue, see Lamb v. Sallee, reached the opposite conclusion, without reference to the legislative history and without analysis. See id. (“The Court has found no authority construing [§3603(b)(1)] and counsel for the respective parties have cited none.”).

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118. Elaborate in your own words the arguments about whether the Los Llanos property, House A and the Guarico Residence in Hogar Agua were single-family homes within the meaning of the first and third provisos of §3603 (B)(1)? Did the court satisfactorily resolve these questions?

119. Can a real estate agent’s sale of her own property ever be exempt? What arguments do you see from the language of the exemption and the policies behind it?

120. Pulcinella v. Ridley Township (E.D.Penn. 1993), addressed a challenge under §3604(f)(3)(B) to a refusal by a local municipality to allow a variance so that a person with a recently acquired disability could make his house usable. The court held that the FHA did not apply because the single-family house in question was owned by a person who owned no other residential property. Is this holding supported by the language of §3603 (b)(1)? By the policy behind the statute?

3. Occupancy Limits

CITY OF EDMONDS v. OXFORD HOUSE514 U.S. 725 (1995)

Justice GINSBURG delivered the opinion of the Court. The Fair Housing Act (FHA or Act) prohibits discrimination in housing against … persons with handicaps. Section 3607(b)(1) of the Act entirely exempts from the FHA’s compass “any reasonable local, State, or Federal restrictions regarding the maximum number of occupants permitted to occupy a dwelling.” This case presents the question whether a provision in petitioner City of Edmonds’ zoning code qualifies for §3607(b)(1)’s … exemption…. The provision, governing areas zoned for single-family dwelling units, defines “family” as “persons [without regard to number] related by genetics, adoption, or marriage, or a group of five or fewer [unrelated] persons.” Edmonds Community Development Code (ECDC) §21.30.010 (1991).

The defining provision at issue describes who may compose a family unit; it does not prescribe “the maximum number of occupants” a dwelling unit may house. We hold that §3607(b)(1) does not exempt prescriptions of the family-defining kind, i.e., provisions designed to foster the family character of a neighborhood. Instead, §3607(b)(1)’s absolute exemption removes from the FHA’s scope only total occupancy limits, i.e., numerical ceilings that serve to prevent overcrowding in living quarters.

I. In the summer of 1990, respondent Oxford House opened a group home in the City of Edmonds, Washington for 10 to 12 adults recovering from alcoholism and drug addiction. The group home, called Oxford House-Edmonds, is located in a neighborhood zoned for single-family residences. Upon learning that Oxford House had leased and was operating a home in Edmonds, the City issued criminal citations to the owner and a resident of the house. The citations charged violation of the zoning code rule that defines who may live in single-family dwelling units. The occupants of such units must compose a “family,” and family, under the City’s defining rule, “means an individual or two or more persons related by genetics, adoption, or marriage, or a group of five or fewer

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persons who are not related by genetics, adoption, or marriage.” ECDC §21.30.010. Oxford House-Edmonds houses more than five unrelated persons, and therefore does not conform to the code.

Oxford House asserted reliance on the [FHA], … which declares it unlawful “[t]o discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap of ... that buyer or a renter.” The parties have stipulated, for purposes of this litigation, that the residents of Oxford House-Edmonds “are recovering alcoholics and drug addicts and are handicapped persons within the meaning” of the Act.

Discrimination covered by the FHA includes “a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford [handicapped] person[s] equal opportunity to use and enjoy a dwelling.” Oxford House asked Edmonds to make a “reasonable accommodation” by allowing it to remain in the single-family dwelling it had leased. Group homes for recovering substance abusers, Oxford urged, need 8 to 12 residents to be financially and therapeutically viable. Edmonds declined to permit Oxford House to stay in a single-family residential zone, but passed an ordinance listing group homes as permitted uses in multifamily and general commercial zones.

Edmonds sued Oxford House … seeking a declaration that the FHA does not constrain the City’s zoning code family definition rule. Oxford House counterclaimed under the FHA, charging the City with failure to make a “reasonable accommodation” permitting maintenance of the group home in a single-family zone. The United States filed a separate action on the same FHA-”reasonable accommodation” ground, and the two cases were consolidated. Edmonds suspended its criminal enforcement actions pending resolution of the federal litigation.

… The District Court held that ECDC §21.30.010, defining “family,” is exempt from the FHA under §3607(b)(1) as a “reasonable ... restrictio[n] regarding the maximum number of occupants permitted to occupy a dwelling.” The U.S. Court of Appeals for the Ninth Circuit reversed, holding §3607(b)(1)’s absolute exemption inapplicable…. We granted certiorari … and we now affirm… .

II. The sole question before the Court is whether Edmonds’ family composition rule qualifies as a “restrictio[n] regarding the maximum number of occupants permitted to occupy a dwelling” within the meaning of the FHA’s absolute exemption.4 In answering this question, we are mindful of the Act’s stated policy “to provide, within constitutional limitations, for fair housing throughout the United States.” We also note precedent recognizing the FHA’s “broad and inclusive” compass, and therefore according a “generous construction” to the Act’s complaint-filing provision. Trafficante. Accordingly, we regard this case as an instance in which an exception to “a general statement of policy” is sensibly read “narrowly in order to preserve the primary operation of the [policy].” Commissioner v. Clark, 489 U.S. 726, 739 (1989).5

4 Like the District Court and the Ninth Circuit, we do not decide whether Edmonds’ zoning code provision defining “family,” as the City would apply it against Oxford House, violates the FHA’s prohibitions against discrimination set out in §§3604(f)(1)(A) and (f)(3)(B).

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A. Congress enacted §3607(b)(1) against the backdrop of an evident distinction between municipal land use restrictions and maximum occupancy restrictions. Land use restrictions designate “districts in which only compatible uses are allowed and incompatible uses are excluded.” D. MANDELKER, LAND USE LAW §4.16, pp.113-114 (3d ed.1993). These restrictions typically categorize uses as single-family residential, multiple-family residential, commercial, or industrial.

Land use restrictions aim to prevent problems caused by the “pig in the parlor instead of the barnyard.” Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 388 (1926). In particular, reserving land for single-family residences preserves the character of neighborhoods, securing “zones where family values, youth values, and the blessings of quiet seclusion and clean air make the area a sanctuary for people.” Village of Belle Terre v. Boraas, 416 U.S. 1, 9 (1974); see also Moore v. City of East Cleveland, 431 U.S. 494, 521 (1977) (Burger, C.J., dissenting) (purpose of East Cleveland’s single-family zoning ordinance “is the traditional one of preserving certain areas as family residential communities”). To limit land use to single-family residences, a municipality must define the term “family”; thus family composition rules are an essential component of single-family residential use restrictions.

Maximum occupancy restrictions, in contradistinction, cap the number of occupants per dwelling, typically in relation to available floor space or the number and type of rooms. These restrictions ordinarily apply uniformly to all residents of all dwelling units. Their purpose is to protect health and safety by preventing dwelling overcrowding.

We recognized this distinction … in Moore. In Moore, the Court held unconstitutional the constricted definition of “family” contained in East Cleveland’s housing ordinance. East Cleveland’s ordinance “select[ed] certain categories of relatives who may live together and declare[d] that others may not”; in particular, East Cleveland’s definition of “family” made “a crime of a grandmother’s choice to live with her grandson.” In response to East Cleveland’s argument that its aim was to prevent overcrowded dwellings, streets, and schools, we observed that the municipality’s restrictive definition of family served the asserted, and undeniably legitimate, goals “marginally, at best.” Another East Cleveland ordinance, we noted, “specifically addressed ... the problem of overcrowding”; that ordinance tied “the maximum permissible occupancy of a dwelling to the habitable floor area.” Justice Stewart, in dissent, also distinguished restrictions designed to “preserv[e] the character of a

5 The dissent notes Gregory v. Ashcroft, 501 U.S. 452 (1991), as an instance in which the Court did not tightly cabin an exemption contained in a statute proscribing discrimination. Gregory involved an exemption in the Age Discrimination in Employment Act, 29 U.S.C. §§621-634, covering state and local elective officials and “appointee[s] on the policymaking level.” The question there was whether state judges fit within the exemption. We held that they did. A state constitutional provision, not a local ordinance, was at stake in Gregory—a provision going “beyond an area traditionally regulated by the States” to implicate “a decision of the most fundamental sort for a sovereign entity.” 501 U.S., at 460. In that light, the Court refused to attribute to Congress, absent plain statement, any intent to govern the tenure of state judges. Nothing in today’s opinion casts a cloud on the soundness of that decision.

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residential area,” from prescription of “a minimum habitable floor area per person,” in the interest of community health and safety.7

Section 3607(b)(1)’s language—“restrictions regarding the maximum number of occupants permitted to occupy a dwelling”—surely encompasses maximum occupancy restrictions.8 But the formulation does not fit family composition rules typically tied to land use restrictions. In sum, rules that cap the total number of occupants in order to prevent overcrowding of a dwelling “plainly and unmistakably,” see A.H. Phillips, Inc. v. Walling, 324 U.S. 490, 493 (1945), fall within §3607(b)(1)’s absolute exemption from the FHA’s governance; rules designed to preserve the family character of a neighborhood, fastening on the composition of households rather than on the total number of occupants living quarters can contain, do not.9

B. Turning specifically to the City’s Community Development Code, we note that the provisions Edmonds invoked against Oxford House … are classic examples of a use restriction and complementing family composition rule. These provisions do not cap the number of people who may live in a dwelling. In plain terms, they direct that dwellings be used only to house families. Captioned “USES,” ECDC §16.20.010 provides that the sole “Permitted Primary Us[e]” in a single-family residential zone is “ [s]ingle-family dwelling units.” Edmonds itself recognizes that this provision simply “defines those uses permitted in a single family residential zone.”

A separate provision caps the number of occupants a dwelling may house, based on floor area:

Floor Area. Every dwelling unit shall have at least one room which shall have not less than 120 square feet of floor area. Other habitable rooms, except kitchens, shall have an area of not less than 70 square feet. Where more than two persons occupy a room used for sleeping purposes, the required floor area shall be increased at the rate of 50 square feet for each occupant in excess of two.

7 Other courts and commentators have similarly differentiated between land use restrictions and maximum occupancy restrictions. See, e.g., State v. Baker, 405 A.2d 368, 373 (N.J. 1979); 7A E. MCQUILLIN, THE LAW OF MUNICIPAL CORPORATIONS §24.504 (3d ed. 1989); Abbott, Housing Policy, Housing Codes and Tenant Remedies, 56 B.U.L.Rev. 1, 41 (1976).8 The plain import of the statutory language is reinforced by the House Committee Report, which observes:

A number of jurisdictions limit the number of occupants per unit based on a minimum number of square feet in the unit or the sleeping areas of the unit. Reasonable limitations by governments would be allowed to continue, as long as they were applied to all occupants, and did not operate to discriminate on the basis of race, color, religion, sex, national origin, handicap or familial status.

9 Tellingly, Congress added the §3607(b)(1) exemption … at the same time it enlarged the FHA to include a ban on discrimination based on “familial status.” The provision making it illegal to discriminate in housing against families with children under the age of 18 prompted fears that landlords would be forced to allow large families to crowd into small housing units. See, e.g., Fair Housing Amendments Act of 1988: Hearings on H.R. 1158 before the Subcommittee on Civil and Constitutional Rights of the House Committee on the Judiciary, 100th Cong., 1st Sess., 656 (1987) (remarks of Rep. Edwards) (questioning whether a landlord must allow a family with 10 children to live in a two-bedroom apartment). Section 3607(b)(1) makes it plain that, pursuant to local prescriptions on maximum occupancy, landlords legitimately may refuse to stuff large families into small quarters. …

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ECDC §19.10.000. This space and occupancy standard is a prototypical maximum occupancy restriction.

Edmonds nevertheless argues that its family composition rule, ECDC §21.30.010, falls within §3607(b)(1), the FHA exemption for maximum occupancy restrictions, because the rule caps at five the number of unrelated persons allowed to occupy a single-family dwelling. But Edmonds’ family composition rule surely does not answer the question: “What is the maximum number of occupants permitted to occupy a house?” So long as they are related “by genetics, adoption, or marriage,” any number of people can live in a house. Ten siblings, their parents and grandparents, for example, could dwell in a house in Edmonds’ single-family residential zone without offending Edmonds’ family composition rule.

Family living, not living space per occupant, is what ECDC §21.30.010 describes. Defining family primarily by biological and legal relationships, the provision also accommodates another group association: five or fewer unrelated people are allowed to live together as though they were family. This accommodation is the peg on which Edmonds rests its plea for §3607(b)(1) exemption. Had the City defined a family solely by biological and legal links, §3607(b)(1) would not have been the ground on which Edmonds staked its case. It is curious reasoning indeed that converts a family values preserver into a maximum occupancy restriction once a town adds to a related persons prescription “and also two unrelated persons.”11

Edmonds additionally contends that subjecting single-family zoning to FHA scrutiny will “overturn Euclidean zoning” and “destroy the effectiveness and purpose of single-family zoning.” This contention both ignores the limited scope of the issue before us and exaggerates the force of the FHA’s antidiscrimination provisions. We address only whether Edmonds’ family composition rule qualifies for §3607(b)(1) exemption. Moreover, the FHA antidiscrimination provisions, when applicable, require only “reasonable” accommodations to afford persons with handicaps “equal opportunity to use and enjoy” housing. … It remains for the lower courts to decide whether Edmonds’ actions against Oxford House violate the FHA’s prohibitions against discrimination…. For the reasons stated, the judgment … is Affirmed.

Justice THOMAS, with whom Justice SCALIA and Justice KENNEDY join, dissenting. Congress has exempted from the requirements of the Fair Housing Act (FHA) “any reasonable local, State, or Federal restrictions regarding the maximum number of occupants permitted to occupy a dwelling.” (emphasis added). In today’s decision, the Court concludes that the challenged provisions of petitioner’s zoning code do not qualify for this exemption, even though they establish a specific number—five—as the maximum number of unrelated persons permitted to occupy a dwelling in the

11 This curious reasoning drives the dissent. If Edmonds allowed only related persons (whatever their number) to dwell in a house in a single-family zone, then the dissent, it appears, would agree that the … exemption is unavailable. But so long as the City introduces a specific number—any number (two will do)—the City can insulate its single-family zone entirely from FHA coverage. The exception-takes-the-rule reading the dissent advances is hardly the “generous construction” warranted for antidiscrimination prescriptions. See Trafficante.

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single-family neighborhoods of Edmonds, Washington. Because the Court’s conclusion fails to give effect to the plain language of the statute, I respectfully dissent.

I. Petitioner’s zoning code reserves certain neighborhoods primarily for “[s]ingle-family dwelling units.” To live together in such a dwelling, a group must constitute a “family,” which may be either a traditional kind of family, comprising “two or more persons related by genetics, adoption, or marriage,” or a nontraditional one, comprising “a group of five or fewer persons who are not [so] related.” As respondent United States conceded at oral argument, the effect of these provisions is to establish a rule that “no house in [a single-family] area of the city shall have more than five occupants unless it is a [traditional kind of] family.” In other words, petitioner’s zoning code establishes for certain dwellings “a five-occupant limit, [with] an exception for [traditional] families.”

To my mind, the rule that “no house ... shall have more than five occupants” (a “five-occupant limit”) readily qualifies as a “restrictio[n] regarding the maximum number of occupants permitted to occupy a dwelling.” In plain fashion, it “restrict[s]”—to five—“the maximum number of occupants permitted to occupy a dwelling.” To be sure, as the majority observes, the restriction imposed by petitioner’s zoning code is not an absolute one, because it does not apply to related persons. But §3607(b)(1) does not set forth a narrow exemption only for “absolute” or “unqualified” restrictions regarding the maximum number of occupants. Instead, it sweeps broadly to exempt any restrictions regarding such maximum number. It is difficult to imagine what broader terms Congress could have used to signify the categories or kinds of relevant governmental restrictions that are exempt from the FHA.1

Consider a real estate agent who is assigned responsibility for the city of Edmonds. Desiring to learn all he can about his new territory, the agent inquires: “Does the city have any restrictions regarding the maximum number of occupants permitted to occupy a dwelling?” The accurate answer must surely be in the affirmative--yes, the maximum number of unrelated persons permitted to occupy a dwelling in a single-family neighborhood is five. Or consider a different example. Assume that the Federal Republic of Germany imposes no restrictions on the speed of “cars” that drive on the Autobahn but does cap the speed of “trucks” (which are defined as all other vehicles). If a conscientious visitor to Germany asks whether there are “any restrictions regarding the maximum speed of motor vehicles permitted to drive on the Autobahn,” the accurate answer again is surely the affirmative one—yes, there is a restriction regarding the maximum speed of trucks on the Autobahn.

The majority does not ask whether petitioner’s zoning code imposes any restrictions regarding the maximum number of occupants permitted to occupy a dwelling. Instead, observing that … “any number of people can live in a house,” so long as they are

1 A broad construction of the word “any” is hardly novel. See, e.g., John Hancock Mut. Life Ins. Co. v. Harris Trust and Savings Bank, 114 S.Ct. 517, 524 (1993) (citing, as examples where “Congress spoke without qualification” in ERISA, an exemption for “‘any security’ issued to a plan by a registered investment company” and an exemption for “‘any assets of ... an insurance company or any assets of a plan which are held by ... an insurance company’” (quoting 29 U.S.C. §§1101(b)(1), 1103(b)(2)) (emphasis in John Hancock )); Citizens’ Bank v. Parker, 192 U.S. 73, 81 (1904) (“The word any excludes selection or distinction. It declares the exemption without limitation”).

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“related ‘by genetics, adoption, or marriage,’” the majority concludes that §21.30.010 does not qualify for [the] exemption because it “surely does not answer the question: ‘What is the maximum number of occupants permitted to occupy a house?’” The majority’s question, however, does not accord with the text of the statute. To take advantage of the exemption, a local, state, or federal law need not impose a restriction establishing an absolute maximum number of occupants; under §3607(b)(1), it is necessary only that such law impose a restriction “regarding” the maximum number of occupants. Surely, a restriction can “regar[d]”—or “concern,” “relate to,” or “bear on”—the maximum number of occupants without establishing an absolute maximum number in all cases.

I would apply §3607(b)(1) as it is written. Because petitioner’s zoning code imposes a qualified “restrictio[n] regarding the maximum number of occupants permitted to occupy a dwelling,” and because the statute exempts from the FHA “any” such restrictions, I would reverse….

II. The majority’s failure to ask the right question about petitioner’s zoning code results from a more fundamental error in focusing on “maximum occupancy restrictions” and “family composition rules.” These two terms—and the two categories of zoning rules they describe—are simply irrelevant to this case.

A. As an initial matter, I do not agree with the majority’s interpretive premise that “this case [is] an instance in which an exception to ‘a general statement of policy’ is sensibly read ‘narrowly in order to preserve the primary operation of the [policy].’” Why this case? Surely, it is not because the FHA has a “policy”; every statute has that. Nor could the reason be that a narrow reading of §3607(b)(1) is necessary to preserve the primary operation of the FHA’s stated policy “to provide ... for fair housing throughout the United States.” Congress, the body responsible for deciding how specifically to achieve the objective of fair housing, obviously believed that §3607(b)(1)’s exemption for “any ... restrictions regarding the maximum number of occupants permitted to occupy a dwelling” is consistent with the FHA’s general statement of policy. We do Congress no service--indeed, we negate the “primary operation” of §3607(b)(1)—by giving that congressional enactment an artificially narrow reading. See Rodriguez v. U.S., 480 U.S. 522, 526 (1987) (per curiam) (“[I]t frustrates rather than effectuates legislative intent simplistically to assume that whatever furthers the statute’s primary objective must be law”); Board of Governors, FRS v. Dimension Financial Corp., 474 U.S. 361, 374 (1986) (“Invocation of the ‘plain purpose’ of legislation at the expense of the terms of the statute itself ..., in the end, prevents the effectuation of congressional intent”).4

4 The majority notes “precedent recognizing the FHA’s ‘broad and inclusive’ compass, and therefore according a ‘generous construction’ to the Act’s complaint-filing provision.” Ante (quoting Trafficante). What we actually said in Trafficante was that “[t]he language of the Act is broad and inclusive.” This is true enough, but we did not “therefore” accord a generous construction either to the FHA’s “antidiscrimination prescriptions,” or to its complaint-filing provision,. Instead, without any reference to the language of the Act, we stated that we could “give vitality to [that provision] only by a generous construction which gives standing to sue to all in the same housing unit who are injured by racial discrimination in the management of those facilities within the coverage of the statute.” If we were to apply such logic to this case, we would presumably “give vitality” to §3607(b)(1) by giving it a generous rather than a narrow construction.

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In any event, as applied to the present case, the majority’s interpretive premise clashes with our decision in Gregory v. Ashcroft, 501 U.S. 452 (1991), in which we held that state judges are not protected by the [ADEA]. Though the ADEA generally protects the employees of States and their political subdivisions, it exempts from protection state and local elected officials and “appointee[s] on the policymaking level.” In concluding that state judges fell within this exemption, we did not construe it “narrowly” in order to preserve the “primary operation” of the ADEA. Instead, we specifically said that we were “not looking for a plain statement that judges are excluded” from the Act’s coverage. Moreover, we said this despite precedent recognizing that the ADEA “‘broadly prohibits’” age discrimination in the workplace. …

Behind our refusal in Gregory to give a narrow construction to the ADEA’s exemption for “appointee[s] on the policymaking level” was our holding that the power of Congress to “legislate in areas traditionally regulated by the States” is “an extraordinary power in a federalist system,” and “a power that we must assume Congress does not exercise lightly.” Thus, we require that “‘Congress should make its intention “clear and manifest” if it intends to pre-empt the historic powers of the States.’” It is obvious that land use—the subject of petitioner’s zoning code—is an area traditionally regulated by the States rather than by Congress, and that land use regulation is one of the historic powers of the States. As we have stated, “zoning laws and their provisions ... are peculiarly within the province of state and local legislative authorities.” Warth v. Seldin, 422 U.S. 490, 508 n.18 (1975). … Accordingly, even if it might be sensible in other contexts to construe exemptions narrowly, that principle has no application in this case.

B. I turn now to the substance of the majority’s analysis, the focus of which is “maximum occupancy restrictions” and “family composition rules.” The first of these two terms has the sole function of serving as a label for a category of zoning rules simply invented by the majority: rules that “cap the number of occupants per dwelling, typically in relation to available floor space or the number and type of rooms,” that “ordinarily apply uniformly to all residents of all dwelling units,” and that have the “purpose ... to protect health and safety by preventing dwelling overcrowding.”5 The majority’s term does bear a familial resemblance to the statutory term “restrictions regarding the maximum number of occupants permitted to occupy a dwelling,” but it should be readily apparent that the category of zoning rules the majority labels “maximum occupancy restrictions” does not exhaust the category of restrictions exempted from the FHA by §3607(b)(1). The plain words of the statute do not refer to “ available floor space or the

5 To my knowledge, no federal or state judicial opinion—other than three §3607(b)(1) decisions dating from 1992 and 1993—employs the term “maximum occupancy restrictions.” Likewise, not one of the model codes from which the majority constructs its category of zoning rules uses that term either. Accordingly, it is difficult to conceive how Congress, in 1988, could have “enacted §3607(b)(1) against the backdrop of an evident distinction between municipal land use restrictions and maximum occupancy restrictions.” … The majority surely cannot hope to invoke the rule that where “‘Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed.’” Molzof v. U.S., 502 U.S. 301, 307 (1992) (quoting Morissette v. U.S., 342 U.S. 246 (1952)). …

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number and type of rooms”; they embrace no requirement that the exempted restrictions “apply uniformly to all residents of all dwelling units”; and they give no indication that such restrictions must have the “purpose ... to protect health and safety by preventing dwelling overcrowding.”

Of course, the majority does not contend that the language of §3607(b)(1) precisely describes the category of zoning rules it has labeled “maximum occupancy restrictions.” Rather, the majority makes the far more narrow claim that the statutory language “surely encompasses” that category. I readily concede this point. But the obvious conclusion that §3607(b)(1) encompasses “maximum occupancy restrictions” tells us nothing about whether the statute also encompasses … the zoning rule at issue here. In other words, although the majority’s discussion will no doubt provide guidance in future cases, it is completely irrelevant to the question presented in this case.

The majority fares no better in its treatment of “family composition rules,” a term employed by the majority to describe yet another invented category of zoning restrictions. Although today’s decision seems to hinge on the majority’s judgment that ECDC §21.30.010 is a “classic exampl[e] of a ... family composition rule,” the majority says virtually nothing about this crucial category. Thus, it briefly alludes to the derivation of “family composition rules” and provides a single example of them. Apart from these two references, however, the majority’s analysis consists solely of announcing its conclusion that “the formulation [of §3607(b)(1)] does not fit family composition rules.” This is not reasoning; it is ipse dixit. Indeed, it is not until after this conclusion has been announced that the majority (in the course of summing up) even defines “family composition rules” at all. …

Although the majority does not say so explicitly, one might infer from its belated definition of “family composition rules” that §3607(b)(1) does not encompass zoning rules that have one particular purpose (“to preserve the family character of a neighborhood”) or those that refer to the qualitative as well as the quantitative character of a dwelling (by “fastening on the composition of households rather than on the total number of occupants living quarters can contain”). Yet terms like “family character,” “composition of households,” “total [that is, absolute] number of occupants,” and “living quarters” are noticeably absent from the text of the statute. Section 3607(b)(1) limits neither the permissible purposes of a qualifying zoning restriction nor the ways in which such a restriction may accomplish its purposes. Rather, the exemption encompasses “any” zoning restriction—whatever its purpose and by whatever means it accomplishes that purpose—so long as the restriction “regard[s]” the maximum number of occupants. As I have explained, petitioner’s zoning code does precisely that.8

8 All that remains of the majority’s case is the epithet that my reasoning is “curious” because it yields an “exception-takes-the-rule reading” of §3607(b)(1). It is not clear why the majority thinks my reading will eviscerate the FHA’s antidiscrimination prescriptions. The Act protects handicapped persons from traditionally defined (intentional) discrimination, and three kinds of specially defined discrimination: “refusal to permit ... reasonable modifications of existing premises”; “refusal to make reasonable accommodations in rules, policies, practices, or services”; and “failure to design and construct [multifamily] dwellings” such that they are accessible and usable. Yet only one of these four kinds of discrimination–the “reasonable accommodations” prescription …–is even arguably implicated by zoning rules like ECDC §21.30.010. In addition, because the exemption refers to “local, State, or Federal restrictions,”

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In sum, it does not matter that ECDC §21.030.010 describes “[f]amily living, not living space per occupant,” because it is immaterial under §3607(b)(1) whether §21.030.010 constitutes a “family composition rule” but not a “maximum occupancy restriction.” The sole relevant question is whether petitioner’s zoning code imposes “any ... restrictions regarding the maximum number of occupants permitted to occupy a dwelling.” Because I believe it does, I respectfully dissent.

DISCUSSION QUESTIONS

121. Both the majority and dissent in Edmonds rely on plain meaning arguments for their positions. Try to articulate in your own words what these arguments are. Who has the better plain meaning argument? What other arguments do the Justices use to bolster their positions? Whose arguments do you find more convincing?

122. What does the dissent in Edmonds see as the relevance of Gregory v. Ashcroft? How does the majority respond? Which argument do you find more convincing.

123. What purposes might there be for the §3607(b)(1) exemption? You might consider that the only cases to date that have discussed the exemption have involved claims based on familial status and handicap. What do the purposes suggest about the proper outcome of the case? Do you see arguments based on statutory purpose in either opinion?

124. Wisconsin limits its exemption for occupancy requirements to familial status claims. Why might it have done so? Is this preferable to the federal approach?

125. What arguments might you make about the proper interpretation of §3607(b)(1) if you were to employ Professor Blatt’s interpretive communities ideas?

even the broadest reading of §3607(b)(1) could not possibly insulate private refusals to make reasonable accommodations for handicapped persons. Finally, … restrictions must be “reasonable” in order to be exempted by §3607(b)(1).

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D. Introduction to Canons of Construction William S. Blatt, Interpretive Communities:

The Missing Element In Statutory Interpretation95 Nw. U. L. Rev. 629, 675-84 (2001)

Interpretive Communities and the Rules Governing Statutory Interpretation The interpretive community account bears not only on questions about the appropriate theory or why judges reach agreement. It also bears on the question: “What rules of interpretation should courts adopt?” Interpretive communities shape widely held norms for statutory interpretation, the most prominent of which is representative democracy. …

The interpretive community account grounds theoretical accounts of representative democracy in the “ways and attitudes of varied people” that comprise our “working Constitution.” Governance involves a chain of authority. Sovereignty resides in the public community, the persons ultimately affected by governmental decisions. The public community entrusts decisions to the political community. Responding to the national mood as expressed in the media and public opinion polls, the political community makes trade-offs among competing goods and delegates the remaining issues to the policy community to “work out” over time. Representing the public, the policy community selects among a relatively narrow range of options, relying on expertise to determine the public good.

Accordingly, representative democracy directs judges to adopt the perspective of the community responsible for the issue. As Felix Frankfurter observed, “If a statute is written for ordinary folk, it would be arbitrary not to assume that Congress intended its words to be read with the minds of ordinary men. If they are addressed to specialists, they must be read with the minds of specialists.”315 This means that public issues should be decided by reference to the views of the public community, that political issues should be decided by reference to the views of the political community, and that policy issues should be decided by reference to the views of the policy community. Though derived from representative democracy, this approach also furthers another widely held norm for statutory interpretation-- the rule of law, which protects against anarchy, allows people to plan their affairs, and limits official arbitrariness. … [T]he rule of law consists of multiple strands: originalism, which connects judicial opinions to democratically accountable legislatures; formalism, which provides private actors with clear prescriptions to guide behavior; and legal process, which roots law in a current normative consensus. Justice Frankfurter’s observation furthers all three strands. It connects judicial opinions to legislatures by identifying the issues of greatest concern to legislators. It provides private actors with clear prescriptions by identifying the

315 Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 COLUM. L. REV. 527, 536 (1947). The entire statement reads:

Statutes are not archeological documents to be studied in a library. They are written to guide the actions of men. As Mr. Justice Holmes remarked upon some Indian legislation “The word was addressed to the Indian mind.” If a statute is written for ordinary folk, it would be arbitrary not to assume that Congress intended its words to be read with the minds of ordinary men. If they are addressed to specialists, they must be read with the minds of specialists.

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audience requiring guidance. It roots law in consensus by identifying the communities in which consensus should be sought. … Justice Frankfurter’s precept provides a means for assessing rules of interpretation. In a world in which most issues fall below the political radar screen, rules adopting the policy perspective are useful guidelines, applicable to most issues. Rules adopting other perspectives apply to fewer issues. Rules adopting the political perspective for policy issues are misleading.Useful Guidelines: Rules Adopting the Policy Perspective: Rules adopting the policy perspective are useful guidelines because most issues facing judges are delegated to the policy community. Purposive interpretation, therefore, is usually the appropriate theory of interpretation. Its assumption of “reasonable persons pursuing reasonable ends reasonably” captures the congressional expectation that the policy community will work out details consistent with the political deal. This expectation gives courts wide leeway to modify the original enactment for unforeseen circumstances. … Purposive interpretation is not the only rule adopting the policy perspective. Various doctrines of interpretation adopt this perspective as well. One such doctrine is the traditional hierarchy of legislative history. By pointing toward the policy community and away from public understandings, that hierarchy highlights the materials most likely relevant to courts. Another such doctrine is the canon assigning specialized meaning to technical terms,334 generally appropriate because it incorporates the vocabulary of the policy community. A third such doctrine is the canon reading statutes in pari materia (that is, along with others relating to the same subject matter), which assumes the ongoing life typical of the policy community. Finally, the canons avoiding redundancies336 and reading statutes ejusdem generis (that is, an enumeration limits general words) are useful because they assume a rational actor speaking with a single voice. Limited Principles Rules Adopting the Political Perspective. Rules adopting the political perspective are limited principles, applying to unusual situations in which the political community opined on the issue. In such cases, Congress expects a particular result, not necessarily a reasonable one. Accordingly, in these situations, purposive interpretation should give way to theories aimed at discerning a particular result. Imaginative reconstruction of the “deal” does so by replaying the circumstances of enactment, and plain meaning does so by encouraging the political community to state its views clearly. Both theories narrow judicial latitude. … Likewise, some canons of construction do not apply to political issues. For such issues, the canon giving words a technical meaning should give way to the one assigning words ordinary meaning. Take, for example, Nix v. Hedden.343 In deciding whether a

334 See [Karl N. Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes Are to Be Construed, 3 VAND. L. REV. 395, 404 (1950)] (“Words are to be taken in their ordinary meaning unless they are technical terms or words of art,” but “[p]opular words may bear a technical meaning and technical words may have a popular signification.”).336 See [id.] (“Every word and clause must be given effect.”).343 149 U.S. 304 (1893).

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tomato was a fruit or a vegetable for tariff purposes, the Court in that case rejected the botanical definition of fruit as the pulp associated with a seed, and instead looked to common parlance which regards fruit as a sweet plant served as dessert. In the same way, the canon reading statutes in pari materia becomes less persuasive for political issues. The political community’s volatility reduces the chance that its views would carry over from statute to statute.

Finally, the canons avoiding redundancies and reading terms ejusdem generis lose power for the political community. That community’s distance from statutory language makes it far more tolerant of redundancies. For instance, during enactment of the Civil Rights Act of 1964, Senator Dirksen demanded explicit statutory language stating that Title VII of the bill did not mandate quotas for minorities, notwithstanding the fact that such language was likely superfluous. Likewise, ejusdem generis loses credibility for issues from the political community. That community often lacks an overall intention that relates general language to enumerations. Indeed, the lack of such intention supports the canon expressio unius (that is, the expression of one thing excludes the other). In bargaining between opposing interests, the expression of one thing usually excludes another.

Rules Adopting the Public Perspective. Rules adopting the public perspective are very limited principles, applying only in the rare situations in which the political community fails to give voice to public understandings. When the political machinery breaks down, democratic values permit the judiciary to leapfrog the legislature, modifying or imposing legislative mandates in the name of popular sovereignty. The best-established rules adopting the public perspective are the canons governing strict and liberal construction. These canons apply widely but with limited impact, affecting statutes at the margin. The democratic justification for these canons is that they mitigate systemic imperfections in the legislative process. Strict construction cures over-responsiveness to organized groups, and liberal construction increases the power of under-represented interests. The difficulty, of course, is identifying the statutes deserving strict or liberal construction. … [P]eople argue over whether civil rights statutes deserve strict or liberal construction. Civil rights statutes might be viewed as conferring economic benefits on an organized group at the expense of society at large.* Justice Scalia, in Johnson v. Transportation Agency, for example, used the diffuse interests of white men to justify a narrow reading of Title VII.361 Such a view, however, runs counter to the history of race relations in America. Notwithstanding their discrete status, racial minorities are not privileged, but marginalized. Furthermore, Americans do not regard racial equality simply as an economic issue involving a narrow group, but as an ideological issue impacting all of society.

* [Instructor’s Note: An example of this is the “special rights” argument commonly made in opposition to civil rights statutes protecting sexual orientation.]361 See Johnson v. Transp. Agency, 480 U.S. 616, 676-77 (1987) (Scalia, J., dissenting) (noting that [an alternate reading of Title VII] would accommodate the demands of organized groups at the expense of unknown, unaffluent, unorganized individuals).

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