Sep 15, 2011

For several years, the City of Boise served its homeless residents in a joint partnership with a private nonprofit organization that operated an emergency shelter and soup kitchen. Following a dispute between the parties, the City took over the operation of the facility and then requested public bids for an overseer. The City received several bids, and ultimately selected the Boise Rescue Mission, a religious organization, to run the facility. The City then entered into a sweetheart deal with the Mission, providing it with the facility and its furnishings for an annual rent of $1. Meanwhile, the Mission required beneficiaries to attend religious services as a condition of receiving food or shelter. The organization that had previously operated the facility, Community House, filed suit, raising Establishment Clause and other challenges. The district court granted a preliminary injunction against the coercion of beneficiaries, but otherwise approved the arrangement. On appeal, we joined with the Anti-Defamation League in an amicus brief filed in February 2006. The brief argued that the arrangement was unconstitutional from its inception because the sweetheart deal with a religious organization was impermissible, and because the arrangement — which involves a publicly built and formerly publicly operated facility being managed by a religious organization in a symbiotic relationship with the City — would cause a reasonable observer to conclude that the City endorses religion. The Ninth Circuit issued its decision in November 2006, holding that the district court abused its discretion by failing to order a broader preliminary injunction with respect to plaintiffs’ Establishment Clause claim. The Court explained: "the plaintiffs have raised serious questions as to whether the . . . religious activities at the publicly-financed Community House facility constitute governmental indoctrination of religion, [and thus] they have established that serious questions exist . . . regarding an Establishment Clause violation." The court concluded that the balance of hardships tilted sharply in favor of the plaintiffs, and that "the district court should have enjoined the conduct of the chapel services and other religious activities at Community House, even if participation in those activities is voluntary." Shortly after the Ninth Circuit’s decision, the City of Boise filed a petition for rehearing en banc. In June 2007, the court denied rehearing en banc, issuing a slightly amended opinion that did not change the holdings described above. The City did not petition for certiorari.