915 F.

2d 877
59 USLW 2253

UNITED STATES of America, Appellant,

v.
COLUMBUS COUNTRY CLUB.
No. 90-1196.

United States Court of Appeals,

Third Circuit.
Argued Aug. 14, 1990.
Decided Oct. 12, 1990.
Order on Denial of Rehearing and
Rehearing En Banc Dec. 18, 1990.

Michael M. Baylson, U.S. Atty., Philadelphia, Pa., John R. Dunne, Asst.

Atty. Gen., David K. Flynn, Thomas E. Chandler (argued), U.S. Dept. of
Justice, Civil Rights Div., Washington, D.C., for appellant.
Joseph P. Gallagher (argued), White and Williams, Philadelphia, Pa., for
appellee.
Before MANSMANN, GREENBERG and SEITZ, Circuit Judges.
OPINION OF THE COURT
SEITZ, Circuit Judge.

The government appeals from two orders of the district court resulting in the
dismissal without trial of its action to enforce Title VIII of the Civil Rights Act
of 1968 (the Fair Housing Act), as amended, 42 U.S.C. Sec. 3601 et seq.
(1988). Jurisdiction in the district court was based on 42 U.S.C. Sec. 3613
(1982), recodified at 42 U.S.C. Sec. 3614 (1988), and 28 U.S.C. Sec. 1345
(1988). We have jurisdiction under 28 U.S.C. Sec. 1291 (1988).

I.
2

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, and incorporated in 1922 as the Tri-Council
Country Club. It changed its name to the Columbus Country Club in 1924. 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 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:

6 purpose for which the corporation is formed is the maintenance of a Club for
The
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.
7

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.
8

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.
9

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.2 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 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.

10

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.

11

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' crossmotions for summary judgment, the district court held that defendant was
exempt from the Act under both the religious organization and private club
exemptions. The court granted defendant's motion for summary judgment on
the religious discrimination claim. The court went on to deny both parties'
motions for summary judgment on the sex discrimination claim because there
was a disputed issue of material fact. The government filed a motion for
reconsideration, noting that if the private club exemption applied, it would bar
both the sex and religious discrimination claims. The district court subsequently
granted the motion and then dismissed the action in its entirety with prejudice.
12

The government filed a timely notice of appeal. This court exercises plenary
review over the grant of summary judgment. United States v. One 107.9 Acre
Parcel of Land, 898 F.2d 396, 398 (3d Cir.1990). Viewing the record in the
light most favorable to the government, we may affirm only if there is no
genuine issue of material fact and defendant is entitled to judgment as a matter
of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505,
2511, 91 L.Ed.2d 202 (1986). The parties do not assert that there are material
issues of fact. Therefore, our task is to determine whether the "evidence ... is so
one-sided that one party must prevail as a matter of law." Liberty Lobby, 477
U.S. at 251-52, 106 S.Ct. at 2511-12.

III.
FAIR HOUSING ACT
13

The government alleges that defendant's policy and practice of prohibiting the
sale of bungalows to non-Catholics violates the Fair Housing Act. That Act
makes it unlawful "[t]o refuse to sell or rent ... or otherwise make unavailable
or deny, a dwelling to any person because of race, color, religion, sex, familial
status, or national origin." 42 U.S.C. Sec. 3604(a) (1988). 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.

14

This court exercises plenary review over questions of statutory construction.

Chrysler Credit Corp. v. First Nat'l Bank and Trust Co., 746 F.2d 200, 202 (3d
Cir.1984). Furthermore, "[t]o the extent that we review the application of the
law to the facts, our review is plenary." United States v. Lansdowne Swim
Club, 894 F.2d 83, 85 (3d Cir.1990); see also Petrella v. Kashlan, 826 F.2d
1340, 1343 (3d Cir.1987); United States v. Adams, 759 F.2d 1099, 1106 (3d

Cir.), cert. denied, 474 U.S. 906, 106 S.Ct. 275, 88 L.Ed.2d 236 (1985).
15

This court must first determine whether defendant's bungalows are dwellings.
The Fair Housing Act defines "dwelling" to mean:

16 building, structure, or portion thereof which is occupied as, or designed or

any
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.
17

42 U.S.C. Sec. 3602(b) (1988). 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, Inc. v. Snyder, 469 U.S. 153,
164, 105 S.Ct. 638, 645, 83 L.Ed.2d 556 (1985) (quoting Park 'N Fly, Inc. v.
Dollar Park and Fly, Inc., 469 U.S. 189, 195, 105 S.Ct. 658, 662, 83 L.Ed.2d
582 (1985)).

18

In United States 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:

a19temporary or permanent dwelling place, abode or habitation to which one intends

to return as distinguished from the place of temporary sojourn or transient visit.
20

Id.

21

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
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.
22

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.

23

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
24

Defendant asserts that even if the bungalows fall within the statutory definition
of "dwelling," it is exempt from the Fair Housing Act under the exemptions
provided by 42 U.S.C. Sec. 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, 105 S.Ct. 638, 657 n. 20, 83 L.Ed.2d 556
(1985) (White, J., dissenting) (quoting 2A C. Sands, Sutherland on Statutory
Construction Sec. 47.11, at 145 (rev. 4th ed. 1984)); see also United States v.
First City Nat'l Bank, 386 U.S. 361, 366, 87 S.Ct. 1088, 1092, 18 L.Ed.2d 151
(1967); cf. United States v. Lansdowne Swim Club, 894 F.2d 83, 85 (3d
Cir.1990) (burden on defendant to show entitlement to Title II private club
exemption); Singleton v. Gendason, 545 F.2d 1224, 1226 (9th Cir.1976)
(burden on defendants-appellees to show entitlement to Title VIII single-family
exemption, 42 U.S.C. Sec. 3603(b)(1)). 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

25

Defendant's first affirmative defense is that it is exempt from the Fair Housing
Act under section 807(a)'s exemption for religious organizations. That
exemption provides, in pertinent part that:

26
Nothing
in this subchapter shall prohibit a religious organization, association, or
society, or any non-profit institution or organization operated, supervised or
controlled by or in conjunction with a religious organization, association, or society,
from limiting the sale, rental or occupancy of dwellings which it owns or operates
for other than a commercial purpose to persons of the same religion, or from giving
preference to such persons, unless membership in such religion is restricted on
account of race, color, or national origin.
27

42 U.S.C. Sec. 3607(a) (1988). 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.

28

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.

29

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.3 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." 114 Cong.Rec. 2273 (Feb. 6, 1968)
(emphasis added).

30

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.

31

Defendant responds that it is "operated in conjunction with a religious

31

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.

32

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.

33

We cannot agree with defendant's contention that the exemption is to be read

broadly. A unanimous Supreme Court mandated in Trafficante v. Metropolitan
Life Ins., 409 U.S. 205, 93 S.Ct. 364, 34 L.Ed.2d 415 (1972), a "generous
construction" of the Fair Housing Act, id. at 212, 93 S.Ct. at 368, in order to
carry out a "policy that Congress considered to be of the highest priority." Id. at
211, 93 S.Ct. at 367. See also Resident Advisory Bd. v. Rizzo, 564 F.2d 126,
147 (3d Cir.1977), cert. denied, 435 U.S. 908, 98 S.Ct. 1457, 1458, 55 L.Ed.2d
499 (1978). 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 United States v. Hughes
Memorial Home, 396 F.Supp. 544, 550 (W.D.Va.1975) ("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.") (citation
omitted).

34

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." United States v.
Columbus Country Club, No. 87-8164, slip op. at 10-11, 1989 WL149935
(E.D.Pa.1989).
35

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 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

36

Defendant's second affirmative defense is that it falls within the exemption for
private clubs, as the district court held. Again, the defendant has the burden of
proving its entitlement to this statutory exemption.

37

The Fair Housing Act states in pertinent part:

38 shall anything in this subchapter prohibit a private club not in fact open to the
Nor
public, which as an incident to its primary purpose or purposes provides lodgings
which it owns or operates for other than a commercial purpose, from limiting the
rental or occupancy of such lodgings to its members or from giving preference to its
members.
39

42 U.S.C. Sec. 3607(a) (1988) (emphasis added). 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.
40

To determine whether defendant's bungalows satisfy condition (2), we begin, as

we must, by examining the statutory text. See Mills Music, Inc., v. Snyder, 469
U.S. 153, 164, 105 S.Ct. 638, 645, 83 L.Ed.2d 556 (1985). 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.

41

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." 114 Cong.Rec. 5526 (Mar. 6, 1968).

42

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." 5 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.

43

The government responds that defendant does not provide "lodgings" because
its bungalows are "dwellings" in the sense of summer residences, not temporary
accommodations as Congress intended.

44

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." 114

Cong.Rec. 5526 (Mar. 6, 1968). Therefore, we conclude that defendant has not
shown that it provides "lodgings" as required by condition (2) of the private
club exemption.
45

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."

46

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.

47

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.

48

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.

49

Defendant also argues that application of the Fair Housing Act violates the free
exercise and establishment clauses of the first amendment as well as the
defendant's first amendment right to free association. Because the district court
did not address those arguments, we will not do so either, preferring to have the
district court consider them in the first instance.

V.
50

We are satisfied that the record does not, as a matter of law, support summary
judgment for defendant on either of its affirmative defenses. We will, therefore,
reverse the orders of the district court ruling that defendant meets the religious
organization and private club exemptions of the Fair Housing Act and
dismissing the government's claim against the Columbus Country Club and
remand for further proceedings.

51

MANSMANN, Circuit Judge, dissenting.

52

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.

53

It is important to note, at the outset, that this case is the first since the
enactment of the Fair Housing Act in 1968 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.
54

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.

55

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.2

56

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.3

57

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.

58

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.

59

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.

60

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.
That affidavit 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 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.

61

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.
62

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.
63

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. Sec. 3607(a) (1988). 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:

64

[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.

65

United States v. Columbus Country Club, No. 87-8164, slip op. at 10-11
(E.D.Pa.1989).

66

The majority, evaluating all of the undisputed facts detailed above and the
district court's conclusion, 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." Majority at 883. 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." Id.
67

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 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. See Caminetti v.
United States, 242 U.S. 470, 485-486, 37 S.Ct. 192, 194-195, 61 L.Ed. 442
(1917)(words used in a statute are presumed, unless the contrary appears, to be
used in their ordinary and usual sense and with the meaning commonly
attributed to them.) The majority approach simply is not supported by the plain
language of the exemption.

III.
68

Even if a mutuality standard were clearly expressed in the text of the

exemption, 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.

69

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.
70

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.

71

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

72

While another case, presenting different facts, may require another result, here
I believe that the district court's conclusion that the Club is exempt from
allegations of religious discrimination under the Fair Housing Act is correct and
should be affirmed.

ORDER SUR PETITION FOR REHEARING

Dec. 18, 1990.
73
74

PRESENT: HIGGINBOTHAM, Chief Judge, and SLOVITER, BECKER,

STAPLETON, MANSMANN, GREENBERG, HUTCHINSON, SCIRICA,

COWEN, NYGAARD, ALITO, and SEITZ, Circuit Judges.
75

The petition for rehearing filed by appellee in the above captioned matter
having been submitted to the judges who participated in the decision of this
court and to all the other available circuit judges of the circuit in the regular
active service, and no judge who concurred in the decision having asked for
rehearing, and a majority of the circuit judges of the circuit in regular active
service not having voted for rehearing by the court in banc, the petition for
rehearing is denied. Chief Judge Higginbotham and Judge Mansmann would
grant rehearing by the court in banc for the reasons set forth in Judge
Mansmann's dissent. Judges Scirica, Nygaard and Alito would grant rehearing
by the court in banc.

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

Mrs. Gualtieri's mother inherited her deceased husband's leasehold and quasiproprietary interest in their bungalow. As a widow, she was given all the rights
under the leasehold except annual membership in the club since at that time
annual membership was restricted to males

Since the statute was enacted with only minimal changes from the way it was
first introduced by Senator Dirksen on the floor of the Senate, its legislative
history does not include the committee reports and other documents that usually
accompany major legislation. See Resident Advisory Bd. v. Rizzo, 564 F.2d
126, 147 n. 29 (3d Cir.1977), cert. denied, 435 U.S. 908, 98 S.Ct. 1457, 1458,
55 L.Ed.2d 499 (1978)

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.

114 Cong. Rec. 4690 (Feb. 29, 1968) (emphasis added). 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." 114 Cong. Rec. 5526 (Mar. 6, 1968)

Section 201 et seq. of Title II prohibits discrimination in places of public

accommodation. 42 U.S.C. Sec. 2000a et seq. (1988). A place of public
accommodation is defined in part as: "any inn, hotel, motel, or other
establishment which provides lodging to transient guests...." 42 U.S.C. Sec.
2000a(b)(1) (1988)

While the panel majority cites United States v. Hughes Memorial Home, 396
F.Supp. 544, 550 (W.D.Va.1975) 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

By an amendment to the bylaws made in 1987, women were permitted

membership. The requirement that members be members of the Catholic faith
was retained

The Club's uncontroverted contention is that evidence of common interest in

the religious activities of the Club and the parish priest's attestation to the
applicant's good standing in that parish have always been membership
requirements. While these requirements were always observed, they were not
codified in the Club Bylaws until 1987