AMENDED MEMORANDUM ORDER

EDWARD J. LODGE, District Judge.

Intermountain Fair Housing Council, Janene Cowles, and Richard Chinn (collectively "Plaintiffs") brought this action against Boise Rescue Mission (the "Rescue Mission") claiming the Rescue Mission discriminated in housing in violation of the Fair Housing Act on the basis of religion and sex. The Court previously granted the Rescue Mission's motion for summary judgment (Docket No. 18) in a Memorandum Order filed on September 10, 2009. See Mem. Order, 655 F.Supp.2d 1150 (D.Idaho 2009). Currently before the Court is Plaintiffs' Motion to Alter or Amend a Judgment Pursuant to Federal Rule of Civil Procedure 59(e). (Docket No. 34). The Court grants in part and denies in part Plaintiffs' Motion to Alter or Amend (Docket No. 34). The Court grants the motion only to the extent that the Court has amended its decision as reflected in this Amended Memorandum Order to address arguments raised by Plaintiffs. The Court otherwise denies the motion. The Court also reaffirms its previous order granting Defendants' Motion for Summary Judgment (Docket No. 18) and dismissing the case in its entirety.

I.

The Rescue Mission is an Idaho nonprofit corporation funded through charitable donations from businesses, churches, and the general public. Roscoe Aff. 1, ¶¶ 1, 4 (Docket No. 18, Attachment 3); Def. Stmt. Mat. Facts 1-2, ¶¶ 1, 4 (Docket No. 18, Attach. 1). The Rescue Mission operates two facilities in Boise: the River of Life Rescue Mission located on 13th Street ("River of Life Facility"), and the City Light Home for Women and Children located on Jefferson Street ("City Light Facility"). Roscoe Aff. 2, ¶ 6. The Rescue Mission also formerly operated a facility on Front Street in Boise that has now been closed.

A. The Homeless Shelter Component and Plaintiff Chinn.

The Rescue Mission operates an "Emergency Services Program" that provides food, shelter, clothing, and other life necessities to anyone in need, along with programs that provide education, job-search, and work discipline training. Id. 3, ¶ 7. The Emergency Services Program includes a homeless shelter component that provides a place of overnight repose and safety for persons who otherwise would likely sleep on the streets, under bridges, in cars, or in other unsafe places. Id. 3, ¶ 10. The Rescue Mission also offers a variety of religious services to shelter guests, such as chapel services, pre-meal prayers, and morning devotions. Id. 7, ¶ 14. The Rescue Mission does not charge fees to shelter guests as a condition of receiving services, and the operation of the shelter does not generate revenue. Id. 7, ¶¶ 18-19.

In general, the homeless shelter operates as follows:

Roscoe Aff. 3-6, ¶¶ 11-12 (emphasis in original) (footnote added); Def. Stmt. Mat. Facts 3-6, ¶¶ 11-12 (emphasis in original) (footnote added).

Plaintiff Richard Chinn was periodically homeless during the years 2005 and 2006. Chinn Aff. 1, ¶ 1 (Docket No. 28, Attach. 3). He was a guest of the homeless shelter located at the River of Life Facility for the periods of May 2-7, 2005 (five nights); October 9-10, 2005 (one night); April 11-20, 2006 (nine nights); and May 11-17, 2006 (six nights).2 Id. at ¶ 2; Roscoe Aff. 9-10, ¶ 31. During his stays at the shelter, he had no other place to stay and intended to remain in the shelter in excess of several months. Chin Aff. 2, ¶ 3. He always intended to return to the shelter whenever he left. Id.

Chinn asserts that he was told by shelter staff that he would be required to participate in Christian religious activities such as chapel services in order to reside and eat meals at the shelter.3 Id. at ¶ 4. He observed that guests of the shelter who did not attend chapel services were either required to wait in the dining room or were not permitted to enter the shelter until chapel services were completed. Id. Guests who attended chapel services were able to obtain food before those individuals who did not attend chapel services because they were always first in the food line. Id. at ¶ 5. If the prepared food ran out, individuals who did not attend chapel services would be given substitute food of inferior quality. Id.

Chinn found the practices of the shelter to be coercive, unpleasant, embarrassing, and offensive to his religion. Id. 2, ¶ 6. He did, however, participate in the religious services out of fear that if he did not participate, he would be denied housing and other services. Id. Of the approximately fifty to seventy individuals staying at the shelter, Chinn observed fifteen to twenty guests who refused to participate in religious services. Id. 2-3, ¶ 6. Individuals who attended religious services or participated in the religious programs received better treatment than those individuals who did not. Id. 3, ¶ 8. Because of the treatment he received at the shelter, he stopped living at the shelter. Id. at ¶ 9.

B. Discipleship Program and Plaintiff Cowles

The Rescue Mission also provides a New Life Discipleship/Recovery Program ("Discipleship Program" or "Program"), which is an intensive, one-year Christian-based residential recovery program for individuals with drug or alcohol dependency. Def. Stmt. Mat. Facts 7, ¶ 20; Roscoe Aff. 7-8, ¶ 20. The women's Discipleship Program is operated out of the City Light Facility. Def. Stmt. Mat. Facts 7, ¶ 20; Roscoe Aff. 8, ¶ 20 and Exs. D-E.

The Discipleship Program is only open to individuals who are or desire to be of the same faith as the Rescue Mission. Def. Stmt. Mat. Facts 7, ¶ 22; Roscoe Aff. 8, ¶ 22. Residents of the Discipleship Program are required to participate in a wide range of religious activities, including worship services, Bible study, prayer, religious singing, public Bible reading, and public prayer. Def. Stmt. Mat. Facts 7, ¶ 23; Roscoe Aff. 8, ¶ 23. Residents also are required to participate in housekeeping duties, such as sorting clothes, laundry, cooking, housekeeping, and office work. Roscoe Aff. at Ex. E. The Rescue Mission does not charge fees to individuals participating in the Discipleship Program and the Discipleship Program does not generate revenue. Def. Stmt. Mat. Facts 8, ¶¶ 26-27. However, residents who work full or part time generally are required to pay a $100 monthly room and board fee. Roscoe Aff. at Ex. E. This money is held for the resident and given back to the resident once he or she moves out of the facility with the goal being that this money will be used by the resident upon moving out as a down payment toward a place to live. Id.

In October 2005, Plaintiff Cowles was in jail on drug-related criminal convictions. Def. Stmt. Mat. Facts 9, ¶ 33. Cowles contacted the Rescue Mission and requested that she be admitted into the Discipleship Program, stating that she was "focused on changing my life through God and spiritual growth," and that she is "desp[e]rately looking to fill this void in my life with spirituality and not drugs." Id. 9, ¶¶ 33-34; Roscoe Aff. 10, ¶¶ 33-34 and Ex. F. The judge presiding over Cowles' criminal case required Cowles to participate in City Light's residential substance abuse treatment program (the Discipleship Program) as a condition of being placed on probation. Cowles Aff. 1, ¶ 1 (Docket No. 28, Attach. 2).

In March 2006, while she was still in jail, Cowles was interviewed by Discipleship Program staff and specifically informed of the Program's intense faith-based curriculum and the various rules of the Program. Def. Stmt. Mat. Facts 9, ¶ 35. On March 7, 2006, Cowles was informed that she had been accepted into the Program. Id. at ¶ 36. Cowles chose to enter the Program and was transported from the jail to the City Light Facility on March 14, 2006. Id. at ¶ 37; Cowles Aff. 1, ¶ 1. When Cowles entered the Program, she was not a member of any particular faith or religion. Cowles Aff. 2, ¶ 4.

As a resident of the Discipleship Program, Cowles was required to participate in religious activities including: church services every Sunday either at the facility or at one of four Christian churches specified by Program staff; daily religious services that went throughout the day and during which Christian music was played; prayers and verse recitation from the Christian Bible; "laying on of hands" and praying out loud; and "casting out demons" using oil and holy water. Id. 2, ¶ 6. Cowles participated in all of the required services and activities except the required praying out loud. Id. at ¶ 7.

Cowles was upset at being forced to adopt the Christian religion and repeatedly was told by Discipleship Program staff that "time is running," that she is "going to Hell," and that she "would be left behind" if she did not accept Jesus Christ as her personal savior. Id. 2, ¶ 8. She was told by Program staff that no one had ever graduated from the Program without becoming a Christian. Id. She was permitted only to read Christian books and listen to Christian music. Id. When Cowles requested that she be allowed to change to a non-religious program, she was put on "30-day restriction" during which all her telephone calls with her attorney were monitored by Program staff and she was not allowed to participate in other limited activities that she previously had been allowed. Id. 3, ¶ 12. Cowles also was required by Program staff to sing in a religiously-based choir and engage in a public Bible reading. Id. 3-4, ¶ 13.

Discipleship Program staff wrote a letter to Cowles' attorney in June 2006, requesting that Cowles immediately be removed from the City Light Facility because the Discipleship Program is a Christian-based program and Cowles was not in agreement with the biblically based curriculum and classes required by City Light. Id. 4, ¶ 15. On August 20, 2006, Program staff discussed with Cowles her continued participation in the Discipleship Program. Id. at ¶ 16. Cowles told staff that she had participated in the required activities but that she was not a Christian. Id. Cowles informed staff that she had been advised by her attorney regarding transfer to another facility, and requested the staff's assistance in obtaining a transfer. Id. The staff responded that because Cowles had not opened her heart to Christianity, her only option was to go back to jail. Id. The staff subsequently contacted Cowles' probation officer on August 30, 2006. Id. Cowles was removed from the Program and the City Light Facility because she was not a Christian. Id. 4, ¶ 17; id. 5, ¶ 19.

Discipleship Program staff wrote a letter to the judge presiding over Cowles' criminal case and informed the judge that Cowles "struggled with the Christian based program that was offered." Id. at Ex. E. Staff informed the judge that Cowles' attitude was "normally very appropriate," but that Cowles struggled because she did not agree philosophically with the Program. Id. Staff recommended to the judge that Cowles be given an opportunity to complete a non-faith-based program to allow her to "better focus on her recovery without the confliction of her beliefs." Id.

Plaintiffs filed this action against the Rescue Mission alleging the Rescue Mission violated the Fair Housing Act by engaging in religious and sex discrimination as prohibited by 42 U.S.C. §§ 3604(a) (otherwise make unavailable a dwelling), 3604(b) (discriminate in terms, conditions, or privileges), and 3617 (interference in exercise or enjoyment of fair housing rights). See V. Compl. 12-13, ¶¶ 48, 50, 52 (Docket No. 1). The Rescue Mission moved the Court for summary judgment on all claims raised by Plaintiffs. The Court granted the motion in a Memorandum Order filed on September 10, 2009. See Mem. Order (Docket No. 32). Plaintiffs have moved the Court to alter or amend the judgment pursuant to Federal Rule of Civil Procedure 59(e). See Mot. Alter or Amend Judg. (Docket No. 34). The Court grants the motion to amend only to the extent that the Court has amended its decision as reflected in this Amended Memorandum Order to address arguments raised by Plaintiffs. The Court otherwise denies the motion and reaffirms its previous order granting Defendants' Motion for Summary Judgment.

II.

Summary judgment is proper when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). An issue is "genuine" only if there is a sufficient evidentiary basis on which a reasonable factfinder could find for the nonmoving party, and a dispute is "material" only if it could affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The party moving for summary judgment has the burden of showing the absence of a genuine issue of material fact. Id. at 256-57, 106 S.Ct. 2505. The Court must view all the evidence in the light most favorable to the nonmoving party. County of Tuolumne v. Sonora Cmty. Hosp., 236 F.3d 1148, 1154 (9th Cir.2001).

In response to a properly submitted summary judgment motion, the burden shifts to the opposing party to set forth specific facts showing that there is a genuine issue for trial. Henderson v. City of Simi Valley, 305 F.3d 1052, 1055-56 (9th Cir.2002). The nonmoving party "may not rely on denials in the pleadings but must produce specific evidence, through affidavits or admissible discovery material, to show that the dispute exists." Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir.1991).

An affidavit supporting summary judgment "must be made on personal knowledge, set forth such facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated." Fed.R.Civ.P. 56(e). "Conclusory affidavits that do not affirmatively show personal knowledge of specific facts are insufficient." Casey v. Lewis, 4 F.3d 1516, 1527 (9th Cir.1993).

A court "generally cannot grant summary judgment based on its assessment of the credibility of the evidence presented." Agosto v. INS, 436 U.S. 748, 756, 98 S.Ct. 2081, 56 L.Ed.2d 677 (1978). "[A]t the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249, 106 S.Ct. 2505.

III.

A. The homeless shelter component of the River of Life Facility4 is not a "dwelling" and therefore is not subject to the requirements of the Fair Housing Act.

The FHA makes it unlawful to "discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling . . . because of race, color, religion, sex, familial status, or national origin." 42 U.S.C. § 3604(b) (emphasis added). The FHA defines a "dwelling" as "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); see 24 C.F.R. § 100.20(b) (providing the same definition of "dwelling"); 24 C.F.R. § 100.201(defining "dwelling unit" as including "sleeping accommodations in shelters intended for occupancy as a residence for homeless persons" (emphasis added)).

Although the term "residence" is central to the definition of a "dwelling," the FHA does not define "residence." However, the ordinary meaning of "residence," which the Court assumes Congress intended, see Mills Music, Inc. v. Snyder, 469 U.S. 153, 164, 105 S.Ct. 638, 83 L.Ed.2d 556 (1985), is "a temporary or permanent dwelling place, abode or habitation to which one intends to return as distinguished from a place of temporary sojourn or transient visit." United States v. Hughes Mem'l Home, 396 F.Supp. 544, 549 (W.D.Va. 1975) (quoting Webster's Third New Int'l Dictionary); see United States v. Columbus Country Club, 915 F.2d 877, 881 (3d Cir. 1990).

In determining whether the shelter is a "dwelling," and therefore covered by the FHA, the Court is cognizant of the FHA's stated policy "to provide, within constitutional limitations, for fair housing throughout the United States"; and generously construes the FHA to further the "broad and inclusive" compass of its protections. City of Edmonds v. Oxford House, Inc., 514 U.S. 725, 731, 115 S.Ct. 1776, 131 L.Ed.2d 801 (1995) (quoting 42 U.S.C. § 3601; Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 209, 93 S.Ct. 364, 34 L.Ed.2d 415 (1972)).

Courts have found two factors relevant in determining whether a facility is a dwelling under the FHA: (1) "whether the facility is intended or designed for occupants who `intend to remain in the [facility] for any significant period of time'"; and (2) "whether those occupants would `view [the facility] as a place to return to' during that period." Lakeside Resort Enterps. v. Bd. of Supervisors of Palmyra Township, 455 F.3d 154, 158 (3d Cir.2006); see Schwarz v. City of Treasure Island, 544 F.3d 1201, 1215-16 (11th Cir.2008); Cohen v. Township of Cheltenham, 174 F.Supp.2d 307, 323 (E.D.Pa.2001); see also Hughes Mem'l Home, 396 F.Supp. at 549(holding that a children's home is a dwelling because the home is more than a place of temporary sojourn to the children who live there).

The Ninth Circuit has not "squarely addressed the issue of whether all temporary shelters fit within the [FHA's] definition of `dwelling.'" Cmty. House, Inc. v. City of Boise, 490 F.3d 1041, 1048 n. 2 (9th Cir. 2007). In Turning Point, Inc. v. City of Caldwell, 74 F.3d 941, 942 (9th Cir.1996), the Ninth Circuit applied the FHA to a homeless shelter, but did not address whether the FHA generally applies to homeless shelters because the parties did not dispute the FHA's applicability. See id.; see also Community House, 490 F.3d at 1048 n. 2.

In Community House, the Ninth Circuit was again faced with application of the FHA to a homeless shelter. See Cmty. House, 490 F.3d at 1048 n. 2. However, the Court declined to address whether a homeless shelter would fall within the FHA's definition of a "dwelling" because the proposed facility at issue in the case would serve not only as a homeless shelter providing transient overnight housing, but also would provide forty-nine transitional housing units in which residents would reside for up to a year and a half, generating up to $125,000 in rent each year. Id. Thus, the facility "contained both a homeless shelter and a low income housing unit." Id. at 1046. Under this factual scenario, the Court had "little trouble concluding that at least part of the facility" was a "dwelling" and therefore was subject to the FHA. Id.

Apparently, the facility at issue in Community House was housed in the same building that now houses the River of Life Facility. The facility at issue in Community House was managed by the City of Boise and, at the time of the Community House case, included rent-generating transitional housing units. See Cmty. House, 490 F.3d at 1045. The building subsequently was leased to the Rescue Mission and no evidence in the record indicates that the River of Life Facility operated by the Rescue Mission contains transitional housing units or that the facility generates rental income. The Community House decision does not, therefore, control the outcome of the present case.

In Woods v. Foster, 884 F.Supp. 1169, 1173-74 (N.D.Ill.1995), the District Court for the Northern District of Illinois held that, under the generous construction a court must give to the FHA, a homeless shelter was a "dwelling" because the individuals who stayed at the shelter had no other place to "return to" or reside. The shelter at issue in Woods provided housing for homeless families and assisted those families in obtaining other services, including permanent housing. Id. at 1171. The Woods court noted that although the length of time an individual expected to live at the shelter was a factor in determining whether the shelter was a "residence" and thus a "dwelling," it was not the exclusive factor. Id. at 1173. "Because the people who live in the Shelter have nowhere else to `return to,' the Shelter is their residence in the sense that they live there and not in any other place." Id. at 1173-74. The court was not persuaded that a one-hundred-twenty-day stay—which the defendants claimed was the maximum period of time an individual was allowed to stay at the shelter—was a "transient visit" making the shelter merely a form of accommodation, like a hotel. Id. at 1174. "The women in the Shelter inhabit the Shelter, although the length of time they live there depends on their success in finding more permanent housing. Their residence is not so short-lived or transient that the Shelter can be considered a mere public accommodation." Id.

In Johnson v. Dixon, 786 F.Supp. 1, 4 (D.D.C.1991), the District Court for the District of Columbia found it doubtful that an emergency overnight shelter would be subject to the FHA:

Id. The court assumed, however, that the FHA anti-discrimination provisions applied to shelters for the homeless for purposes of addressing (and ultimately denying) the plaintiffs' motion for a preliminary injunction. Id.

Outside of the homeless shelter context, courts have held that the term "dwelling" does not extend to cover a city jail, see Garcia v. Condarco, 114 F.Supp.2d 1158, 1160 (D.N.M.2000); or lodging for transient guests, such as a hotel or a bed and breakfast. See Patel v. Holley House Motels, 483 F.Supp. 374, 381 (S.D.Ala.1979) (hotel); Schneider v. County of Will, 190 F.Supp.2d 1082, 1086-87 (N.D.Ill.2002) (bed and breakfast).

On the other hand, courts have held that the term "dwelling" does cover summer bungalows, see Columbus Country Club, 915 F.2d at 881; cabins for migrant farm workers, Villegas v. Sandy Farms, Inc., 929 F.Supp. 1324, 1327-28 (D.Or.1996); a nursing home, Hovsons, Inc. v. Township of Brick, 89 F.3d 1096, 1102 (3d Cir.1996); a drug-and-alcohol treatment facility, Lakeside Resort Enterprises, 455 F.3d at 160; a group home for recovering drug and alcohol addicts, Schwarz, 544 F.3d at 1214; a group home for children, Cohen, 174 F.Supp.2d at 323; and a former office building converted to a hospice facility for AIDS patients, see Baxter v. City of Belleville, 720 F.Supp. 720, 721 (S.D.Ill.1989).

Here, the undisputed evidence demonstrates that guests of the shelter are not charged a fee for staying in the shelter; are assigned a bed in a dormitory-style room, a hallway, or the day room; generally are allowed to stay for a maximum of seventeen consecutive nights (except during the winter months when the maximum stay is more flexible due to the danger that cold weather presents to homeless individuals during the night); are not guaranteed the same bed each night they return; with limited exceptions, are not allowed to stay at the shelter during the day, are required to leave the shelter every morning by 8:00 a.m., and may not return, except for lunch, until 4:00 p.m.; are not allowed to leave the shelter once they arrive in the evening; generally are not allowed to stay at the shelter on a particular evening if they do not check in during the designated hours; are not allowed to personalize the bed area assigned to them or leave belongings in their bed area; and, with extremely limited exceptions, are not allowed to receive phone calls, mail, or have visitors at the shelter.

The Court finds that the shelter is neither intended nor designed for occupants who intend to remain there for any significant period of time. See Lakeside Resort, 455 F.3d at 158. Moreover, although shelter guests may have the subjective intent of returning to the shelter, see id., the Court finds that the conditions under which a guest may stay at the shelter demonstrate that the shelter is not "a temporary or permanent dwelling place, abode or habitation to which one intends to return," but is instead a "place of temporary sojourn or transient visit." Hughes Mem'l Home, 396 F.Supp. at 549 (quoting Webster's Third New Int'l Dictionary); see Johnson, 786 F.Supp. at 4. Accordingly, the Court holds that the homeless shelter is not a "dwelling" subject to the FHA.

The Court recognizes that in Woods, a homeless shelter was found to be a "dwelling." See Woods, 884 F.Supp. at 1173-74. The Woods case is, however, distinguishable from the present case because the guests in Woods were allowed to stay for a much longer period of time (up to one-hundred-twenty days) and nothing indicates that the shelter in Woods imposed restrictions on the guests similar to those the Rescue Mission imposes on its shelter guests. See id. Further, the Court is not convinced that a homeless shelter is a "dwelling" simply because the guests have "nowhere else to `return to,'" see id., because, under that interpretation of "dwelling," any building or structure in which a homeless person is sleeping and storing his or her possessions would be considered a "dwelling" based simply on the intent and circumstances of the homeless person.5

B. The Rescue Mission's operation of the homeless shelter and the Discipleship Program does not fall within the FHA's religious exemption.

The Rescue Mission denies that it requires guests of its homeless shelter to attend or participate in religious services, or that it gives preference to guests of the homeless shelter based on such attendance or participation. The Rescue Mission argues that, even assuming it did impose such requirements or give such preference, its actions in doing so would fall within the FHA's religious exemption, 42 U.S.C. § 3607(a). Similarly, the Rescue Mission argues that the religious requirements it imposes on the residents of its Discipleship Program fall within the FHA's religious exemption.

The FHA's religious exemption provides:

42 U.S.C. § 3607(a).

There is no evidence, nor argument by the parties, that membership in the Rescue Mission's religion is restricted on account of race, color, or national origin. See 42 U.S.C. § 3607(a). Therefore, to demonstrate that its activities fall within the religious exemption, the Rescue Mission must demonstrate (1) that it is a religious organization, or is operated, supervised, or controlled by or in conjunction with a religious organization; (2) that it operates the homeless shelter and Discipleship Program for "other than a commercial purpose"; and (3) that it limits occupancy of the shelter and residence in the Discipleship Program to persons of the same religion, or gives preference to such persons.

1. The Rescue Mission is a religious organization that operates the homeless shelter and Discipleship Program.

The Rescue Mission was "created for the purpose of providing for the worship of God, the teaching and preaching of the Word or God, the winning of people to a personal faith in the Lord Jesus Christ and in the spiritual improvement of mankind." Def. Stmt. Mat. Facts 2, ¶ 3. The Rescue Mission provides "spiritual guidance, Christian counseling, and Christian religious services to" its guests, residents, and members of the general public "who desire to learn about Jesus Christ." Id. at ¶ 9. It "conducts numerous religious activities every day, including worship services, bible studies and prayer." Id. The Rescue Mission operates both the River of Life Facility homeless shelter in which Chinn stayed and the City Light Facility Discipleship Program in which Cowles resided. Id. 2, ¶ 6; id. 3, ¶ 10; id. 7, ¶ 20. The Court holds that these undisputed facts demonstrate that the Rescue Mission is a religious organization that operates the homeless shelter and the Discipleship Program.

2. The Rescue Mission operates the homeless shelter and the Discipleship Program for "other than a commercial purpose."

The FHA does not define "commercial purpose." However, the Sixth Edition of Black's Law Dictionary,6 defines "commercial activity" as "including any type of business or activity which is carried on for a profit." Black's Law Dictionary 270 (6th Ed. 1990).

The Court finds that defining "commercial activity" as one carried on for a profit, and hence a "commercial purpose" as one that has the purpose of generating a profit, is consistent with the ordinary meaning of "commercial," which the Court assumes Congress intended. See Mills Music, 469 U.S. at 164, 105 S.Ct. 638. This definition also is consistent with the statutory language of the religious exemption. Specifically, the statutory language of the exemption encompasses not only the occupancy of a religious organization's dwellings, but also the sale and rental of such dwellings. See 42 U.S.C. § 3607(a). This statutory language demonstrates that a purpose is not a "commercial purpose" simply because it generates revenue (e.g., through either the rental or sale of the religious organization's dwellings), but instead must be a purpose beyond simply generating revenue, such as generating a profit.

The Court holds, based on the ordinary meaning of "commercial" and the religious exemption's statutory language, that a religious organization owns or operates dwellings for a "commercial purpose" if it owns or operates those dwellings for the purpose of generating a profit. The Court further holds that the Rescue Mission's operation of the homeless shelter and the Discipleship Program is not for a commercial purpose because the Rescue Mission does not operate the shelter or the Discipleship Program for the purpose of generating revenue, let alone for generating a profit.

Plaintiffs argue that the Rescue Mission facilities are operated for a "commercial purpose," pointing only to the facts that the Rescue Mission is incorporated under the laws of the State of Idaho, and that the operation of the facilities "furthers the purposes for which [the Rescue Mission was] established." Pls. Resp. Mot. Summ. J. at 8. The mere incorporation of the Rescue Mission with the state as a non-profit corporation, and the furthering of the Rescue Mission's purposes does not demonstrate that the Rescue Mission's operation of the shelter and Discipleship Program is for a "commercial purpose" in the absence of any evidence that such operation is carried on for the purpose of generating a profit.

3. The Rescue Mission does not limit occupancy of the shelter and residency in the Discipleship Program to persons of the same religion, or give preference to such persons.

To qualify for the religious exemption, the Rescue Mission must demonstrate that the alleged conduct that Plaintiffs are challenging falls within the parameters of limiting occupancy of the shelter and residency in the Discipleship Program to persons of the same religion, or giving preference to such persons. See 42 U.S.C. § 3607(a).

Chinn explicitly disclaims that he is of the same religion as the Rescue Mission, and no evidence shows that he became "the same religion" as the Rescue Mission simply by attending religious services. Further, the Rescue Mission's alleged preferential treatment of individuals who attend or participate in religious services does not fall within the meaning of giving preference to "persons of the same religion." See 42 U.S.C. § 3607(a).

Cowles also explicitly disclaims that she is of the same religion as the Rescue Mission, and no evidence shows that Cowles became "of the same religion" as the Rescue Mission by participating in the Discipleship Program. Further, the Rescue Mission's requirement that residents in the Discipleship Program participate in religious activities, and imposition of a requirement that the residents who are not Christian convert to Christianity to graduate from the Program, does not fall within the meaning of limiting occupancy to, or giving preference to, "persons of the same religion." See 42 U.S.C. § 3607(a).

In sum, the evidence does not support the conclusion that the Rescue Mission limits occupancy of the shelter or residency in the Discipleship Program to, or gives preference to, "persons of the same religion." Accordingly, the Court holds that the FHA's religious exemption does not apply to the Rescue Mission's operation of the shelter and Discipleship Program.

C. The Rescue Mission's activities are protected under the First Amendment.

The Rescue Mission argues that its activities are protected under the First Amendment to the U.S. Constitution and that application of the FHA to prohibit its activities violates the Religious Freedom Restoration Act ("RFRA"), 42 U.S.C. § 2000bb, et seq.

1. Applicability of the Religious Freedom Restoration Act.

The Religious Freedom Restoration Act (RFRA) provides: "Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability," unless the government demonstrates that "application of the burden to the person . . . (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest." 42 U.S.C. § 2000bb-1(a), (b).

Plaintiffs argue, for the first time in their Motion to Alter or Amend the Judgment, that the RFRA does not apply to this action because the action is a dispute between private parties.

The Ninth Circuit has not directly addressed the use of the RFRA as a defense to the enforcement of a federal statute in a lawsuit between private parties. It has, however, addressed the applicability of the RFRA in other contexts. In Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826 (9th Cir.1999), the defendant, a private employer, offered a job to the plaintiff, and the plaintiff accepted. Id. at 829. Prior to the start of employment, the defendant employer required, among other things, that the plaintiff provide his social security number, which the plaintiff refused to do, citing religious grounds. Id. at 829-30. The defendant refused to hire the plaintiff, and the plaintiff filed suit, alleging that the defendant employer violated his rights under the RFRA and other statutory provisions. Id. at 830. The Ninth Circuit held that because the employer was a private party, and not a government actor, it could not be held liable for violating the RFRA. Id. at 834. The Court did not, however, address whether the RFRA could be used in a private action as a defense to enforcement of a federal statute.

In Worldwide Church of God v. Philadelphia Church of God, 227 F.3d 1110 (9th Cir.2000), the plaintiff filed a copyright infringement lawsuit against the defendant, alleging that the defendant was copying and distributing the plaintiff's copyrighted material without permission. Id. at 1112. The defendant raised the RFRA as a defense, claiming that the copyrighted material "is central to its religious practice and required reading for all members." Id. at 1113. The Ninth Circuit declined to address whether the RFRA applied, holding instead that even if the RFRA did apply, the defendant had not demonstrated that the relief sought by the plaintiff-preventing the defendant from copying and distributing the copyrighted material without prior permission and, presumably, payment of a fee-would substantially burden the free exercise of religion. Id. at 1120-21.

The Second Circuit is the only circuit court to squarely address the use of the RFRA as a defense in a private action between private parties. See Hankins v. Lyght, 441 F.3d 96, 103 (2d Cir.2006). In Hankins, the Second Circuit held that the RFRA could be used as a defense in a private action between private parties seeking to enforce the Age Discrimination in Employment Act ("ADEA"). Id. The court reasoned:

Id.; but see id. at 114 (Sotomayor, J., dissenting) ("RFRA by its terms does not apply to suits between private parties."); Rweyemamu v. Cote, 520 F.3d 198, 203-04 (2d Cir.2008) (expressing "doubts about Hankins's determination that RFRA applies to actions between private parties when the offending federal statute is enforceable by a government agency"); Tomic v. Catholic Diocese of Peoria, 442 F.3d 1036, 1042-43 (7th Cir.2006) (finding the Hankins decision "unsound" because the RFRA was applicable only to suits in which the government is a party); Redhead v. Conference of Seventh-Day Adventists, 440 F.Supp.2d 211, 218-19 (E.D.N.Y. 2006) (voicing doubts about the RFRA's applicability to suits between private parties, but applying the RFRA to a suit between private parties because of the constraints of controlling precedent).

The Court declines to resolve whether the RFRA can be invoked as a defense in this action because, as discussed below, regardless of whether the RFRA applies, the Rescue Mission's activities in operating the homeless shelter and the Discipleship Program are protected by the Free Exercise Clause of the First Amendment.

Moreover, according to the Rescue Mission, Plaintiffs receive "Private Enforcement Initiative" grants from HUD to engage in private enforcement activities, such as this lawsuit. If this is true, Plaintiffs possibly would be deemed "government actors." If Plaintiffs are deemed "government actors," under Ninth Circuit precedent, the RFRA would apply to Plaintiffs' attempt to enforce the FHA against the Rescue Mission. See Sutton, 192 F.3d at 834. However, because Plaintiffs raised this issue for the first time in a Rule 59(e) Motion to Alter or Amend, Defendants have not had the opportunity to submit to the Court evidence demonstrating that Plaintiffs receive such funds. For this additional reason, the Court declines to resolve the applicability of the RFRA to this action.

2. Free Exercise Clause of the First Amendment.

The Rescue Mission argues that their activities are protected under the Free Exercise Clause of the First Amendment. The Court agrees and holds that application of the FHA to prohibit the Rescue Mission's activities in the operation of the homeless shelter and the Discipleship Program would violate the Free Exercise Clause.

The Free Exercise Clause provides that "Congress shall make no law. . . prohibiting the free exercise [of religion]." U.S. Const. amend. I. "A statute burdens the free exercise of religion if it `put[s] substantial pressure on an adherent to modify his behavior and to violate his beliefs. . . .'" Guam v. Guerrero, 290 F.3d 1210, 1222 (9th Cir.2002) (citation omitted). "[T]he right to the free exercise of religion unquestionably encompasses the right to preach, proselyte, and perform other similar religious functions. . . ." McDaniel v. Paty, 435 U.S. 618, 626, 98 S.Ct. 1322, 55 L.Ed.2d 593 (1978) (citation omitted).

In determining whether application of a statute would violate the Free Exercise Clause, a court

Bollard v. Cal. Province of the Soc'y of Jesus, 196 F.3d 940, 946 (9th Cir.1999) (citations and internal quotation marks omitted).

a. Application of the FHA would have a tremendous negative impact on the Rescue Mission's exercise of religious beliefs.

As discussed above, the Rescue Mission is a Christian-based religious organization that was formed "for the purpose of providing `for the worship of God, the teaching and preaching of the Word of God, the winning of people to a personal faith in the Lord Jesus Christ and in the spiritual improvement of mankind.'" Roscoe Aff. 2, ¶ 3; see Def. Stmt. Mat. Facts 2, ¶ 3. The Rescue Mission provides spiritual guidance, Christian counseling, and religious services to shelter guests and the general public, and conducts numerous religious activities daily, including worship services, bible studies, and prayer. Def. Stmt. Mat. Facts 2, ¶ 9. Specific to the Discipleship Program, the Rescue Mission operates the Program to enable residents "to free themselves from the addictions and destructive habits of their old life by his or her personal faith in Christ," and believes that "[r]eligious study is the very essence of the Discipleship Program, and the program would be nothing if stripped of its religious component." Def. Stmt. Mat. Facts at 7, ¶¶ 21, 24.

Applying the FHA to prohibit the Rescue Mission from teaching, preaching, and proselytizing to individuals on its own property, whether they be shelter guests, Discipleship Program residents, or other individuals; requiring shelter guests to attend religious services, or giving preference to such guests; limiting participation in the Discipleship Program to those who are, or who desire to be, of the same religion; and requiring Discipleship Program participants to comply with the religious component of the Program, would have a tremendous negative impact upon the exercise of the Rescue Mission's religious beliefs. See McDaniel, 435 U.S. at 626, 98 S.Ct. 1322 ("[T]he right to the free exercise of religion unquestionably encompasses the right to preach, proselyte, and perform other similar religious functions. . . ."). Indeed, as pointed out by the Rescue Mission, prohibiting the Rescue Mission from engaging in the activities challenged by Plaintiffs would result in requiring "a religious organization to remove religion from its religious programs," and prohibit a religious organization from choosing how "to introduce its religious beliefs to people who voluntarily come to the organization."

b. The compelling government interest does not justify the burden imposed on the Rescue Mission's exercise of religious beliefs.

There is no doubt that providing fair housing through the prohibition of religious discrimination is a compelling government interest. However, "[s]ome religious interests under the Free Exercise Clause are so strong that no compelling [governmental] interest justifies government intrusion into the ecclesiastical sphere." Bollard, 196 F.3d at 946. For example, "[a] secular court may not . . . adjudicate matters that necessarily require it to decide among competing interpretations of church doctrine, or other matters of an essentially ecclesiastical nature, even if they also touch upon secular rights." Id. (citations omitted). "A church's selection of its own clergy is one such core matter of ecclesiastical self-governance with which the state may not constitutionally interfere." Id.

The Court finds the following activities of the Rescue Mission to also be among the religious interests that are so strong that no compelling governmental interest justifies intrusion into the ecclesiastical sphere: teaching, preaching, and proselytizing to individuals on its own property; treating preferentially guests on its property who attend religious services; limiting participation in a residential addiction recovery program to individuals who are or who wish to be of the same faith; and imposing requirements that guests and residents on its property attend and/or participate in religious services and activities. See id.

c. The recognition of an exemption under these circumstances would not impede the purpose of the FHA.

Finally, the purpose of the FHA is "to provide, within constitutional limitations, for fair housing throughout the United States." 42 U.S.C. § 3601. Allowing religious discrimination would, under most circumstances, impede that purpose. However, the FHA already recognizes a religious exemption from its requirements, demonstrating that in some circumstances, religious discrimination is allowed under the FHA. See 42 U.S.C. § 3607(a).

As discussed above, the Rescue Mission's operation of the shelter and the Discipleship Program does not fall within the FHA's religious exemption only because the Rescue Mission does not limit occupancy of the shelter and residency in the Discipleship Program to persons of the same religion, or give preference to such persons. Although the Rescue Mission does not qualify for the FHA's religious exemption, the Court finds that recognizing an exemption from the FHA under the circumstances of this case would not impede the purpose of the FHA.

Accordingly, the Court holds that the government's compelling interest in providing fair housing through the prohibition of religious discrimination is insufficient, under the circumstances of this case, to overcome the Rescue Mission's religious rights and interest in engaging in their activities of teaching, preaching, and proselytizing to individuals on its own property; requiring shelter guests to attend religious services, or giving preference to such guests; limiting participation in the Discipleship Program to those who are, or who desire to be, of the same religion; and requiring Discipleship Program participants to comply with the religious component of the Program. See EEOC v. Catholic Univ. of Am., 83 F.3d 455, 467-68, 470 (D.C.Cir.1996) (holding that government's interest in eliminating employment discrimination is insufficient to overcome a religious institution's interest in being able to employ ministers of its choice; and that employment discrimination claims impermissibly burden the church's free exercise of religion and are therefore barred by the Free Exercise Clause); cf. Bollard, 196 F.3d at 947 (allowing sexual harassment claim to go forward against religious organization because the religious organization did not offer a religious justification for the alleged harassment and indeed condemned the alleged harassment as inconsistent with the values and beliefs of the organization).

D. The Rescue Mission is entitled to summary judgment on Plaintiffs' claim of "interference" under 42 U.S.C. § 3617.

Under the FHA's "interference" or "retaliation" provision, it is "unlawful to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, or on account of his having exercised or enjoyed, or on account of his having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by" the FHA. 42 U.S.C. § 3617. "[T]he language `interfere with' has been broadly applied `to reach all practices which have the effect of interfering with the exercise of rights' under the federal fair housing laws." United States v. City of Hayward, 36 F.3d 832, 835 (9th Cir.1994) (citations omitted).

As discussed above, the shelter is not a "dwelling" and is therefore not subject to the FHA. Moreover, as also discussed above, the Rescue Mission's alleged activities in relation to both the shelter and the Discipleship Program are protected by the First Amendment. Accordingly, those activities cannot be deemed as "interfering" with the exercise by Chen or Cowles of "rights" protected by the FHA. See 42 U.S.C. § 3617.

E. The Rescue Mission is entitled to summary judgment on Plaintiffs' sex discrimination claim.

While the focus of this case is religious discrimination, Plaintiffs also raise a sex discrimination claim. Specifically, Plaintiffs allege that similarly situated male residents in the Discipleship Program at the River of Life Facility were permitted to work when Cowles was not, and were permitted to have more frequent visitors of the opposite sex. See V. Compl. 10, ¶ 37. The only evidence Plaintiffs put forth in support of this allegation is Cowles' affidavit.

In her affidavit, Cowles states:

See Cowles Aff. 5, ¶ 20.

Cowles' affidavit does not demonstrate that she has personal knowledge of specific males residents of the River of Life Discipleship Program who were similarly situated to her and who were treated differently than she was in terms of being permitted to work and have visitors of the opposite sex. Her conclusory affidavit is thus insufficient to defeat summary judgment on this issue. See Fed.R.Civ.P. 56(e) ("A supporting or opposing affidavit must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated."); Casey, 4 F.3d at 1527 ("Conclusory affidavits that do not affirmatively show personal knowledge of specific facts are insufficient.").

IV.

The Court grants summary judgment on all claims raised by Plaintiffs.

The Court holds that the homeless shelter is not a dwelling and is not, therefore, subject to the requirements of the FHA. The Court further holds that, even assuming the shelter is a dwelling and thus is subject to the FHA, the Rescue Mission's alleged activities of requiring shelter guests to attend religious services and/or giving preference to such guests are protected by the Free Exercise Clause of the First Amendment.

The Court holds that the Rescue Mission's alleged activities of limiting residency in the Discipleship Program to those who are or desire to be of the same faith as the Rescue Mission, requiring residents of the Program who are not Christian to convert to Christianity to graduate from the Program, and requiring residents of the Program to participate in the religious services and activities also are protected by the Free Exercise Clause of the First Amendment.

The Court holds that because the Rescue Mission's alleged activities are protected by the First Amendment, those activities cannot "interfere" with the exercise by Chen or Cowles of "rights" protected by the FHA.

Finally, the Court holds that Plaintiffs have failed to put forth evidence sufficient to defeat summary judgment on Plaintiffs' claim of sex discrimination.

ORDER

Being fully advised in the premises, the Court hereby orders that Plaintiffs' Motion to Alter or Amend a Judgment Pursuant to Federal Rule of Civil Procedure 59(e) (Docket No. 32) is GRANTED in part and DENIED in part. The motion is granted only to the extent that the Court has amended its decision as reflected in this Amended Memorandum Order to address arguments raised by Plaintiffs. The motion is otherwise DENIED. The Court reaffirms its previous order GRANTING Defendants' Motion for Summary Judgment (Docket No. 18), and DISMISSING the case in its entirety.