PRECEDENTIAL
No. 18-1212
________________
Appellants
v.
_
Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 3-16-cv-05928)
District Judge: Honorable Brian R. Martinotti
_
Lenora M. Lapidus
Sandra S. Park (Argued)
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Jeanne LoCicero
Liza F. Weisberg
Edward Barocas
American Civil Liberties Union of New Jersey Foundation
89 Market Street
P.O. Box 32159
Newark, NJ 07102
Daniel Mach
Heather L. Weaver
American Civil Liberties Union
915 15th Street, N.W., 6th Floor
Washington, DE 20005
Jose D. Roman
Powell & Roman
131 White Oak Lane
Old Bridge, NJ 08857
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Lila Miller
Sasha M. Samberg-Champion
Relman Dane & Colfax PLLC
1225 19th Street, N.W., Suite 600
Washington, DE 20036
Amicus Appellant
National Fair Housing Alliance
Kevin T. Snider
Pacific Justice Institute
9851 Horn Road, Suite 115
Sacramento, CA 95827
David J. Hallstrom
3C01 Lansdowne Terrace
London, WC1N 1AS
United Kingdom
Amicus Appellee
Pacific Justice Institute
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At least she owned a unit there when this lawsuit was filed.
The same is true of the Lusardis. It appears, though this is not
contained in the record and does not affect the outcome of our
case, that some or all of the plaintiffs have subsequently
moved out of the condo facility.
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Although the Condominium Association’s pool use policy
was motivated by the Orthodox Jewish residents’ religious
beliefs, the Association did not mention the Religious
Freedom Restoration Act, 42 U.S.C. § 2000bb et seq.
(“RFRA”), at any point in its filings in the District Court or in
its merits brief before us. (At our request, the parties
discussed RFRA implications in supplemental memoranda.)
Thus we determine that the Association has waived any
possible RFRA defense to the plaintiffs’ FHA claim.
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This is different from when a plaintiff relies on indirect
evidence of discrimination. In those cases, a plaintiff must
first make out a prima facie case of discrimination, which
usually means showing circumstances supporting a plausible
inference of discrimination. Then the defendant must give a
legitimate, nondiscriminatory reason for its actions, which the
plaintiff may then show was a pretext for discrimination. See
generally McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802–04 (1973).
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Plaintiffs argue that any schedule of sex-segregated
swimming hours would necessarily violate the FHA, and they
see the Association’s arguments as akin to the “separate but
equal” framework rejected in Brown v. Board of Education,
347 U.S. 483 (1954). We need not address that contention,
and its potentially far-reaching implications, as this specific
pool schedule is plainly discriminatory in its specifics. Thus
we also need not consider the Association’s argument that
prohibiting single-sex swimming hours altogether would
discriminate against the Orthodox Jewish residents and
thereby itself violate the FHA. Moreover, as Judge Fuentes
notes in his concurrence, the Association fails to substantiate
its claim that eliminating segregated swimming hours would
have a discriminatory effect on the Orthodox residents at A
Country Place, as we do not know how many of the Orthodox
community use the pool or how many would not use a mixed-
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* * * * *
In this context we reverse and remand the case to the
District Court to enter summary judgment in favor of the
plaintiffs on their claim under the Fair Housing Act. We
leave to the Court whether it continues to decline the exercise
of supplemental jurisdiction over plaintiffs’ state law claims.
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347 U.S. 483, 495 (1954).
2
388 U.S. 1, 8 (1967).
3
N.L.R.B. v. Local 106, Glass Bottle Blowers Ass’n, 520 F.2d
693, 695 (6th Cir. 1975).
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78 F.3d 128, 132 (3d Cir. 1996). Although Healey was an
employment discrimination case, we frequently rely on our
Title VII jurisprudence to guide our understanding of the
FHA’s antidiscrimination provisions. See Cmty. Servs., Inc. v.
Wind Gap Mun. Auth., 421 F.3d 170, 176 n.5 (3d Cir. 2005).
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Maj. Op. at 4.
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42 U.S.C. § 3604(b) (prohibiting discrimination “because of
race, color, religion, sex, familial status, or national origin”).
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Section 3607 creates a narrow exception by allowing
religious organizations that sell or rent housing to give
preference to members of the same religion, unless
membership in the religion itself is “restricted on account of
race, color, or national origin.” See id. § 3607(a). That
exception is inapplicable here.
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Cmty. House, Inc. v. City of Boise, 490 F.3d 1041, 1050 (9th
Cir. 2007); Larkin v. State of Mich. Dep’t of Soc. Servs., 89
F.3d 285, 290 (6th Cir. 1996); Bangerter v. Orem City Corp.,
46 F.3d 1491, 1503–04 (10th Cir. 1995). As an example of
how analysis of gender-based facial discrimination under the
FHA might work, in Community House v. City of Boise, the
Ninth Circuit determined that a religious homeless shelter’s
policy of excluding women and families was facially
discriminatory “because it explicitly treats women and families
different from men.” Cmty. House, 490 F.3d at 1045. The
court also addressed the shelter’s suggestion that it would
create a separate shelter for women and families, casting doubt
on that justification because “there is a serious question that
sheltering women and families . . . separately from men would
benefit women and families by satisfying a required safety
need.” Id. at 1052.
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Familystyle of St. Paul, Inc. v. City of St. Paul, 923 F.2d 91,
93 (8th Cir. 1991).
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United States v. Virginia, 518 U.S. 515, 550 (1996).
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The contemporaneous evidence suggests that the
Association justified the pool schedule as the will of the
majority rather than as a necessary accommodation to
Orthodox Jewish residents. The Association informed Ms.
Curto that “[t]he vast majority of people would abolish any
mixed swimming, because that is the will of the majority.” J.A.
174. The Association also informed Mr. Lusardi that “we are
well within our rights to serve the vast majority of the
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