Groome Resources Ltd v. Parish of Jefferson ( 2000 )

REVISED - December 22, 2000
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 99-30776
_____________________
GROOME RESOURCES LTD, LLC,
Plaintiff - Appellee
UNITED STATES OF AMERICA,
Intervenor
v.
PARISH OF JEFFERSON,
Defendant - Appellant
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
_________________________________________________________________
November 20, 2000
Before KING, Chief Judge, and REYNALDO G. GARZA and PARKER,
Circuit Judges.
KING, Chief Judge:
Defendant-Appellant Parish of Jefferson, Louisiana
(“Parish”) appeals the district court’s grant of a permanent
injunction in favor of Plaintiff-Appellee Groome Resources Ltd.,
L.L.C. (“Groome Resources”). The permanent injunction enjoined
the Parish from interfering with or withholding approval of
Groome Resources’ application for “reasonable accommodations”
under 42 U.S.C. § 3604(f)(3)(B) to operate a for-profit group
home for five individuals suffering from Alzheimer’s disease.
Specifically, the Parish raises a constitutional challenge to the
statutory basis of the district court’s injunction. The Parish
argues that Congress exceeded its constitutional authority in
passing § 3604(f)(3)(B) of the Fair Housing Amendments Act of
1988 (FHAA),1 which defines housing discrimination to include a
refusal to make reasonable accommodations for handicapped
individuals. We join three circuits in concluding that Congress
acted under its Commerce Clause power in enacting the FHAA, and
because, under the facts presented, Groome Resources is a for-
profit company engaged in and substantially affecting interstate
1
Section 3604 reads in relevant part:
It shall be unlawful—
. . .
(f) To discriminate in the sale or rental, or to
otherwise make unavailable or deny, a dwelling to any
buyer or renter because of a handicap-
. . .
(3) For purposes of this subsection, discrimination
includes–
. . .
(B) a refusal to make reasonable accommodations in
rules, policies, practices, or services, when such
accommodations may be necessary to afford such
person equal opportunity to use and enjoy a
dwelling . . . .
42 U.S.C. § 3604(f)(3)(B).
2
commerce, we AFFIRM the district court. See U.S. CONST. art. I,
§ 8, cl. 3.
I. FACTUAL AND PROCEDURAL BACKGROUND
Groome Resources is a for-profit limited liability
partnership that operates group homes for individuals afflicted
with Alzheimer’s disease. These homes provide full-time
supervision, food, shelter, and supportive services for elderly
patients who are unable to live independently due to their
illness. Each home cares for five Alzheimer’s patients and is
staffed by a full-time, rotating caretaker. Each patient pays
$3,400 per month for his or her accommodations and care. Groome
Resources currently operates four group homes in the Greater New
Orleans area and seeks to open a fifth in a residential district
of the Parish of Jefferson.
To facilitate this expansion, on February 8, 1999, Groome
Resources signed a contract to purchase a home at 5109 Elmwood
Parkway located in the Parish. The contract was between Groome
Resources and the seller, Cendant Mobility Services Corporation,
a national relocation assistance organization. The agreement to
purchase was contingent on Groome Resources obtaining a variance
to the local zoning laws, which would permit the operation of a
group home for five unrelated individuals operated for profit.
3
Groome Resources had scheduled a closing date for the home for
one month from the signing.
The Parish zoning ordinance at issue regulates property use
in single-family residential districts. The zoning ordinance
provides,
This district is composed of certain lands and structures
having a low density, single family residential character
and additional open area where it is desirable and likely
that such similar development will occur. Uses are limited
to single family residences and such non-residential uses as
are intended primarily to provide service to the adjacent
neighborhood.
JEFFERSON PARISH, LA., COMPREHENSIVE ZONING ORDINANCE, § VII-A, at 7A-1,
no. 1 (1998). The zoning ordinance defines “family” as,
one or more persons related by blood or marriage living
together and occupying a single housekeeping unit with
single culinary facilities or a group of not more than four
persons living together by mutual agreement and occupying a
single housekeeping unit with single culinary facilities on
a non-profit cost-sharing basis.
Id. § III, at 3-6, no. 25.
The Parish zoning ordinance also provides a process by which
reasonable accommodations can be made for handicapped residents
under the Fair Housing Amendments Act:
Nothing in this ordinance shall be construed to prevent a
reasonable accommodation for handicapped persons as defined
by the Federal Fair Housing Act in accordance with Federal,
State and Parish procedures. Application for reasonable
accommodation shall be submitted to the Department of
Inspection and Code Enforcement for review and approval.
Id. § XX, at 20-25, no. 14. On February 11, 1999, Groome
Resources applied for a “reasonable accommodation” to allow the
proposed group home for five non-related individuals to operate
4
in a single-family dwelling on a for-profit basis. Groome
Resources had successfully applied for a similar group home in
another residential district in the Parish, a request that had
been granted within forty-five days.
Under the procedures set up by the Parish, an application
for reasonable accommodations must be reviewed by the Department
of Inspection and Code Enforcement and the Parish Attorney’s
Office. There is no formalized procedure or timetable for an
application, although the target timetable is forty-five days.
In addition, the councilman in whose district the property sits
and the residents of the district are notified about the
application.
On March 15, 1999, the Parish Attorney’s Office recommended
approval of Groome Resources’ application for reasonable
accommodations for the Elmwood Parkway group home. On March 16,
1999, the director of the Department of Inspection and Code
Enforcement also recommended approval of the application.
Several days later, however, members of the Elmwood Park Civic
Association, through their councilman, voiced opposition to the
application. On March 19, 1999, residents of the neighborhood,
the councilman and the Parish Attorney met to discuss the planned
group home.2 Due to the opposition of the residents, no official
2
A March 20, 1999 letter from Libby Olivier Tittle, 1st
Vice President of the Elmwood Park Civic Association, to
Councilman Edmond J. Muniz, included in the record, evidences the
community sentiment toward the group home. Entitled “Elmwood
5
decision was made regarding the Groome Resources reasonable
accommodations application.
On April 28, 1999, Groome Resources wrote to the Parish to
inquire about its pending application.3 The letter threatened
legal action pursuant to the FHAA if the reasonable
accommodations request was not decided upon. Groome Resources
explained that, due to the delay, it had accrued monetary damages
related to the rescheduling of the closing date on the property.
The Parish responded by letter on April 30, 1999, stating that
the application remained under review and further information
might be requested. On May 4, 1999, the Parish requested
additional information on the Groome Resources company and the
Park Civic Association’s Opposition to Group Home at 5109 Elmwood
Parkway,” the letter summarizes the meeting between the neighbors
and the councilman. In relevant part it states:
The permit has not yet been granted and will be delayed to
allow both Tom Wilkinson, Parish Attorney, and our Civic
Association to prepare to challenge the opening and
operating of this group home.
. . .
(2) You [Councilman Muniz] oppose the granting of the
permit. Tom Wilkinson will recommend that the Parish
Council not approve the permit because it could be a good
test case to challenge these group homes in R-1 classified
zones.
Letter from Libby Olivier Tittle, 1st Vice President of the
Elmwood Park Civic Association to Councilman Edmond J. Muniz
(March 20, 1999).
3
The United States Justice Department, Civil Rights
Division also wrote to the Parish on May 6, 1999, inquiring about
the status of Groome Resources’ application. The Parish
Attorney, Thomas Wilkinson, informed the Justice Department that
the application was under review.
6
proposal for the Elmwood Parkway group home. On May 12, 1999,
Groome Resources submitted the requested information to the
Parish. On May 14, 1999, Groome Resources filed suit in federal
district court seeking injunctive relief “enjoining and
restraining the [Parish] from withholding approval of [the]
Application for Reasonable Accommodation.”
Groome Resources argued that the Parish’s continued delay
frustrated the purpose of the FHAA and was tantamount to a denial
of its reasonable accommodations application. As such, Groome
Resources argued it was discriminated against under the FHAA and
sought an injunction to remedy that discrimination. In response,
the Parish argued that the suit was premature as no final
decision had been made on the application, that Groome Resources
could not meet the procedural or substantive requirements for an
injunction, and that the enactment of the reasonable
accommodations provision exceeded the constitutional authority of
Congress.
The district court held an evidentiary hearing on Groome
Resources’ motion for a preliminary injunction and consolidated
it with a trial on the merits. The district court held that the
FHAA was “a valid exercise of Congress’ power under the Commerce
Clause.” Further, it found that despite the fact that the Parish
had never formally denied Groome Resources’ application, the case
was ripe for decision. Deposition testimony revealed that there
was no planned action on the application, and the district court
7
found that the attorney in charge of the review process “could
not say what the current status of the application was, what if
anything remained to be done to complete the process or when it
might be done, and could not say who the ultimate decision maker
would be.” The district court concluded that “the Parish delayed
acting on the application in the hope that the matter will become
moot if the proposed purchase falls through.” Therefore, “to
deny plaintiff’s claim as premature would effectively frustrate
the clear mandates of the Fair Housing Act.”
In determining the merits of the reasonable accommodations
application, the district court found that the addition of one
person to the four person limit was reasonable and necessary to
allow individuals with Alzheimer’s disease an equal opportunity
to live in a residential setting, and that “[t]he trial evidence
convinces the Court that the artificial limit of four unrelated
persons living in a single group home will make it economically
unfeasible for [Groome Resources] to operate the proposed home.”
The district court concluded,
The other homes operated by Groome have been well received
by their residential neighbors. Since none of the residents
drive, there are few if any automobiles at the homes. There
is absolutely no evidence that this proposed group home with
five Alzheimer’s patients would cause any problems or in any
way impact the health, safety, welfare or character of the
neighborhood. If the home was occupied by a family, there
would be no limit on the number of persons who reside there,
or the number of automobiles or visitors at the home. In
fact, the same residential zoning permits small home
businesses, schools, and day care centers, all of which
cause more congestion and traffic problems than is expected
from the group home. The requested accommodation is clearly
8
reasonable and necessary to allow the handicapped to have
equal opportunity to live in residential settings of their
choice, as mandated by the Fair Housing Act Amendments of
1988.
Accordingly, the district court permanently enjoined the Parish
from interfering with or withholding approval of a reasonable
accommodations application for Groome Resources.
On appeal, the Parish challenges the constitutional basis of
the district court’s holding — namely the constitutional
authority of Congress to pass 42 U.S.C. § 3604(f)(3)(B). First,
the Parish argues that Congress exceeded its authority under the
Commerce Clause in enacting the “reasonable accommodations”
clause. Second, the Parish argues in the alternative that
§ 3604(f)(3)(B)’s reasonable accommodations standard, as applied
to facially neutral zoning ordinances, is void for vagueness.4
After careful interpretation of the legislative history of the
4
We accept that the Parish has properly appealed the
constitutionality of § 3604(f)(3)(B) and dismiss Groome
Resources’ procedural challenges to this appeal. First, we
disagree with Groome Resources’ contention that the district
court’s injunction rested on a finding of disparate impact and,
thus, remains in effect regardless of our decision on the
constitutionality of the reasonable accommodations provision of
the FHAA. The focus of the injunction was clearly the failure of
the Parish to provide reasonable accommodations for the proposed
group home and not a finding that there was a discriminatory
intent or effect on handicapped individuals in the Parish.
Second, we disagree with Groome Resources’ argument that the
Parish’s failure to brief in detail a Fourteenth Amendment
challenge to the FHAA is fatal to its overarching constitutional
challenge. The district court expressly held that the FHAA “was
a valid exercise of Congress’ power under the Commerce Clause.”
It is from that finding that the Parish based its appeal.
9
FHAA, and an analysis of the Supreme Court’s recent Commerce
Clause cases, we affirm the holding of the district court.5
II. STANDARD OF REVIEW
We review the constitutionality of a federal statute de
novo. See United States v. Luna, 165 F.3d 316, 319 (5th Cir.
1999); United States v. Bailey, 115 F.3d 1222, 1225 (5th Cir.
1997).
III. RIPENESS
As an initial matter, we affirm the district court’s holding
that the issue before this court is ripe for review.
Jurisdiction is a question of law which we review de novo. See
United States v. Jimenez-Martinez, 179 F.3d 980, 981 (5th Cir.
1999); see also Powder River Basin Resource Council v. Babbitt,
54 F.3d 1477, 1483 (10th Cir. 1995) (“Because ripeness is a
jurisdictional issue, our standard of review is de novo.”).
While not briefed or argued by the Parish, federal courts
have a duty to consider objections to our jurisdiction sua
sponte. See United Transp. Union v. Foster, 205 F.3d 851, 857
(5th Cir. 2000) (“[E]very federal appellate court has a special
5
Because we conclude that Congress possesses the
authority to enact the FHAA as an activity substantially
affecting interstate commerce, we need not reach the alternative
argument that Congress possessed authority to enact the Act under
§ 5 of the Fourteenth Amendment.
10
obligation to satisfy itself not only of its own jurisdiction,
but also that of the lower courts in a cause under review, even
though the parties are prepared to concede it.” (quoting Steel
Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998)).
“A court should dismiss a case for lack of ‘ripeness’ when
the case is abstract or hypothetical. The key considerations are
‘the fitness of the issues for judicial decision and the hardship
to the parties of withholding court consideration.’. . . A case
is generally ripe if any remaining questions are purely legal
ones; conversely, a case is not ripe if further factual
development is required.” New Orleans Pub. Serv., Inc. v.
Council of New Orleans, 833 F.2d 583, 586-87 (5th Cir. 1987)
(citations omitted) (quoting Abbott Labs. v. Gardner, 387 U.S.
136, 149 (1967), modified on other grounds by Califano v.
Sanders, 430 U.S. 99 (1977)). We find that the district court
was correct in resolving the legal question of whether the Parish
had failed to approve Groome Resources’ reasonable accommodations
application for its group home, and that the hardship to Groome
Resources constituted an immediate injury requiring judicial
relief.
First, as to the “fitness of the issues for judicial
decision,” we agree with the Court of Appeals for the Fourth
Circuit that “[u]nder the Fair Housing Act . . . a violation
occurs when the disabled resident is first denied a reasonable
accommodation, irrespective of the remedies granted in subsequent
11
proceedings.” Bryant Woods Inn, Inc. v. Howard County, Md. 124
F.3d 597, 602 (4th Cir. 1997).6 This denial can be both actual
or constructive, as an indeterminate delay has the same effect as
an outright denial. In the instant case, the district court was
well within its discretion to decide that a reasonable
accommodation was denied by the unjustified delay of the Parish
officials.
From the facts at trial, a full and complete application had
been submitted and been reviewed.7 The district court recognized
that ninety-five days had elapsed between the time the
application was submitted and the filing of the lawsuit, and
despite the target date of forty-five days, the application had
been pending for 127 days without action at the time of the
court’s decision. During this time, Groome Resources was
6
As such, ripeness in the Fair Housing Act context must
be distinguished from ripeness cases involving unconstitutional
takings or other zoning issues. See Bryant, 124 F.3d at 602
(“Fair Housing Act claims are thus unlike takings claims, which
do not ripen until post-decisional procedures are invoked without
achieving a just compensation.”).
7
Persuasive to the district court was the fact that the
only two governmental departments that needed to approve the
reasonable accommodations application had unofficially approved
the application in March. The effect of the intervention of the
district councilman and the Parish residents was evident as
approval by the councilman or the residents was not required in
the process. The continued delay based on neighborhood
opposition, see Letter of Libby Olivier Tittle, supra note 2,
therefore, demonstrated an attempt to frustrate Groome Resources’
purchase and operation of a group home.
12
required to postpone its closing date several times.8 Further,
the court found that four months after the filing of the lawsuit,
the Parish officials in charge of the application could not
provide any timetable or plan for acting on the application.
While never formally denying the request, the Parish’s
unjustified and indeterminate delay had the same effect of
undermining the anti-discriminatory purpose of the FHAA. As no
further factual development was required, the district court
exercised its discretion to resolve the legal issue presented.
Regarding the second factor of the ripeness inquiry,
“[n]umerous courts have stressed that housing discrimination
causes a uniquely immediate injury. Such discrimination, which
under the FHA includes a refusal to make reasonable
accommodations, makes these controversies ripe.” Assisted Living
Assocs. v. Moorestown Township, 996 F. Supp. 409, 427 (D.N.J.
1998) (listing cases). In addition to the discriminatory injury
necessitating judicial relief, Groome Resources faces concrete
economic hardship from the continued delay. The district court
found that Groome Resources would be liable for a $2000 penalty
for the delay in closing, not to mention the economic loss of
being unable to operate the facility. Further delay in obtaining
judicial resolution of this issue will likely cause additional
8
The district court was even forced to intervene on
behalf of Groome Resources to secure one of the postponements in
the closing date and found in its opinion that “[the closing]
likely will not be extended further.”
13
harm to Groome Resources. Because the financial penalties
resulting from the delay in closing and in commencing operations,
present concrete hardships for the plaintiffs that frustrate the
purpose of the FHAA, we agree with the district court that the
issue is ripe for review.
IV. CONSTITUTIONALITY OF THE FAIR HOUSING AMENDMENTS ACT
We today join three other circuits that have upheld the
constitutionality of the Fair Housing Amendments Act. See Oxford
House-C v. City of St. Louis, 77 F.3d 249, 251 (8th Cir. 1996)
(holding that “Congress had a rational basis for deciding that
housing discrimination against the handicapped, like other forms
of housing discrimination, has a substantial effect on interstate
commerce”); Morgan v. Sec. of Hous. & Urban Dev., 985 F.2d 1451,
1455 (10th Cir. 1993) (“The legislative record, when viewed
against a backdrop of the legislative history of the 1968 Fair
Housing Act, provides a rational basis for finding that the sale
and rental of residential housing . . . concerns more than one
state and has a real and substantial relation to the national
interest.” (citations and internal quotation marks omitted));
Seniors Civil Liberties Ass’n v. Kemp, 965 F.2d 1030, 1034 (11th
Cir. 1992) (“We find no merit in plaintiffs’ argument that,
because the real estate market involves private intrastate
14
transactions, no interstate commerce is involved in residential
sales and rentals.”).
Our analysis of the constitutionality of the FHAA is guided
by the Supreme Court’s recent decisions in United States v.
Morrison, 120 S. Ct. 1740 (2000), and United States v. Lopez, 514
U.S. 549 (1995). After a brief examination of the purpose of the
FHAA, and the controlling Commerce Clause jurisprudence, we
consider the constitutionality of the FHAA and the reasonable
accommodations provision now challenged by the Parish.
A. Purpose of the Fair Housing Amendments Act
In response to a history of national discrimination against
individuals with disabilities, Congress enacted the FHAA in
1988.9 The purpose of the Act was to prohibit discrimination in
9
Section 3604 provides in pertinent part:
[I]t shall be unlawful–
. . . .
(f) (1) To discriminate in the sale or rental, or to
otherwise make unavailable or deny, a dwelling to
any buyer or renter because of a handicap of–
(A) that buyer or renter,
(B) a person residing in or intending to reside in
that dwelling after it is so sold, rented, or made
available; or
(C) any person associated with that buyer or
renter.
(2) To discriminate against any person in the terms,
conditions, or privileges of sale or rental of a
dwelling, or in the provision of services or
facilities in connection with such dwelling,
because of a handicap of—
15
the national housing market for handicapped10 individuals. As
the House Report stated,
The Fair Housing Amendments Act . . . is a clear
pronouncement of a national commitment to end the
unnecessary exclusion of persons with handicaps from the
American mainstream. It repudiates the use of stereotypes
and ignorance, and mandates that persons with handicaps be
considered as individuals. Generalized perceptions about
disabilities and unfounded speculations about threats to
safety are specifically rejected as grounds to justify
exclusion.
H.R. REP. NO. 100-711, at 18 (1988), reprinted in 1988
U.S.C.C.A.N. 2173, 2179.
(A) that person; or
(B) a person residing in or intending to reside in
that dwelling after it is so sold, rented, or made
available; or
(C) any person associated with that person.
(3) For purposes of this subsection, discrimination
includes—
. . .
(B) a refusal to make reasonable accommodations in
rules, policies, practices, or services, when such
accommodations may be necessary to afford such
person equal opportunity to use and enjoy a
dwelling; . . . .
42 U.S.C § 3604(f)(1),(2),(3)(B).
10
In relevant part, 42 U.S.C. § 3602(h) provides:
(h) “Handicap” means, with respect to a person—
(1) a physical or mental impairment which substantially
limits one or more of such person's major life
activities,
(2) a record of having such an impairment, or
(3) being regarded as having such an impairment.
42 U.S.C. § 3602(h).
16
Expanding on the previously enacted Fair Housing Act
(FHA),11 which prohibited discrimination in housing based on
race, color, religion, and national origin,12 the FHAA responded
to a recognized prejudice against those with physical
disabilities and illness and against “[p]eople with mental
retardation [who] have been excluded because of stereotypes about
their capacity to live safely and independently.” See id.
(citing City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432,
435 (1985) (which held that there was no rational basis for a
zoning ordinance that had the effect of excluding citizens with
mental retardation from living in the community)). As in
Cleburne, Congress took particular note of how local zoning laws
had been used to discriminate and thus affect housing
opportunities for the disabled:
These new subsections would also apply to state or local
land use and health and safety laws, regulations, practices
or decisions which discriminate against individuals with
handicaps. While state and local governments have authority
to protect safety and health, and to regulate use of land,
that authority has sometimes been used to restrict the
ability of individuals with handicaps to live in
communities. This has been accomplished by such means as
the enactment or imposition of health, safety or land-use
requirements on congregate living arrangements among non-
related persons with disabilities.
11
See Fair Housing Act of 1968, Pub. L. No. 90-284, 82
Stat. 81 (codified as amended at 42 U.S.C. §§ 3601-3631 (1994)).
12
In 1974, Congress amended the Fair Housing Act to
prohibit discrimination on the basis of sex. See Pub. L. No. 93-
383, 88 Stat. 83 (1974).
17
H.R. REP. NO. 100-711, at 24, reprinted in 1988 U.S.C.C.A.N. 2173,
2185 (emphasis added).13
The “reasonable accommodations” language, now codified in 42
U.S.C. § 3604(f)(3)(B), specifically targeted the type of zoning
regulations at issue here. Congress found that these seemingly
“neutral rules and regulations,” even those involving commercial/
noncommercial zoning distinctions, nonetheless had a
discriminatory effect on the housing choices available for the
disabled. See id. (“The Committee intends that the prohibition
against discrimination against those with handicaps apply to
zoning decisions and practices.”). Primarily, the discriminatory
effect recognized by Congress resulted from the fact that the
disabled were not able to live safely and independently without
organized, and sometimes commercial, group homes like the one at
issue.14
13
Section 3604 also governs organizations like Groome
Resources that provide services to the disabled. See 42 U.S.C.
§ 3604(a)-(f).
14
In Cleburne, which informed the passage of the FHAA, the
Supreme Court adopted this circuit’s findings that “without group
homes . . . the retarded could never hope to integrate themselves
into the community.” 473 U.S. at 438 (citing Cleburne Living
Ctr., Inc., v. City of Cleburne, 726 F.2d 191, 193 (5th Cir.
1984)). The Fifth Circuit’s findings, in turn, were informed by
the district court’s findings, which go directly to the issue
here regarding the importance of commercially run homes for
handicapped individuals,
“Group homes currently are the principal community living
alternatives for persons who are mentally retarded. The
availability of such a home in communities is an essential
ingredient of normal living patterns for persons who are
18
In the scheme of the FHAA, the reasonable accommodations
provision exists as a prohibition on discrimination against the
disabled in the purchase, sale, or rental of housing. As set out
in § 3604(f)(3)(B), the failure to reasonably accommodate the
disabled in the context of housing is, itself, a defined act of
discrimination. The question before this court is whether the
activity of regulating discrimination against the disabled in the
purchase, sale, or rental of housing can be shown to
substantially affect interstate commerce, and therefore be upheld
as a legitimate exercise of congressional authority.
B. Congressional Authority Under the Commerce Clause
The Commerce Clause grants Congress the constitutional
authority “‘to regulate Commerce . . . among the several states,’
and [] concomitant power to protect the nation’s commerce by
enacting such laws as it deems ‘necessary and proper.’” United
mentally retarded, and each factor that makes such group
homes harder to establish operates to exclude persons who
are mentally retarded from the community.”
Cleburne, 473 U.S. at 439 n. 6 (quoting Cleburne, 726 F.2d at
193). Other circuits have recognized that commercial group homes
may be the only way for disabled individuals to live in a
residential community: “As the Court of Appeals for the Sixth
Circuit has observed, ‘the handicapped may have little choice but
to live in a commercial home if they desire to live in a
residential neighborhood.” Hovsons, Inc. v. Township of Brick, 89
F.3d 1096, 1105 (3d Cir. 1996) (quoting Smith & Lee Assocs.,
Inc. v. City of Taylor, Mich., 13 F.3d 920, 931 (6th Cir. 1993)).
19
States v. Robinson, 119 F.3d 1205, 1209 (5th Cir. 1997) (quoting
U.S. CONST. art. I, § 8, cl. 3, 18).
In interpreting the commerce power, courts are bound both by
the “first principles” of a Constitution that establishes a
federal government with “enumerated powers,” and our judicial
role, which requires deference to properly enacted congressional
regulations. See Lopez, 514 U.S. at 552, 556. As Judge
Higginbotham recognized in United States v. Kirk,
On the one hand, courts have a constitutional duty to
scrutinize congressional actions to ensure that Congress
stays within its constitutionally enumerated powers; if
Lopez means anything, it is that Congress’s power under the
Commerce Clause must have some limits. On the other hand,
we must discipline our scrutiny to ensure that we are about
the business of judicial review and not the business of
social policy. Stated another way, respecting the policy-
making role of majoritarian legislative bodies is not an
empty recitation.
105 F.3d 997, 999 (5th Cir. 1997) (equally divided en banc court)
(citations and internal quotation marks omitted). Thus, while
recognized as “one of the most prolific sources of national
power,” H.P. Hood & Sons v. Du Mond, 336 U.S. 525, 534 (1949),
the commerce power is cabined within constitutionally determined
“outer limits.” See United States v. Morrison, 120 S. Ct. 1740,
1748-49 (2000) (citing United States v. Lopez, 514 U.S. 549, 556
(1995)) (“Lopez emphasized . . . that even under our modern,
expansive interpretation of the Commerce Clause, Congress’
regulatory authority is not without effective bounds.”).
20
We turn first to the framework establishing those outer
limits. In reviewing an act of Congress passed under its
Commerce Clause authority, we apply the rational basis test as
interpreted by the Lopez court. See, e.g., Robinson, 119 F.3d at
1210; United States v. Bailey, 115 F.3d 1222, 1225 (5th Cir.
1997); United States v. Knutson, 113 F.3d 27, 29 (5th Cir. 1997);
United States v. Bird, 124 F.3d 667, 673 (5th Cir. 1997); United
States v. Coleman, 78 F.3d 154, 159 (5th Cir. 1996). Our
analysis is, therefore, guided by this precedent and the
constitutional principles set forth in Lopez15 and elucidated in
the Supreme Court’s recent discussion in Morrison.16
1. Commerce Clause After Lopez: Three Categories of Interstate
Activity
The Lopez Court described “three broad categories of
activity” that Congress may regulate pursuant to its Commerce
Clause power. See Lopez, 514 U.S. at 558. “First, Congress may
regulate the use of the channels of interstate commerce.” Id.
15
Lopez invalidated the Gun Free School Zones Act of 1990,
18 U.S.C. § 922(q)(1)(A), which made it a federal crime to
knowingly possess a firearm in a school zone. See 514 U.S. at
552.
16
Morrison invalidated the federal civil remedy provision
of the Violence Against Women Act of 1994, 42 U.S.C. § 13981(b).
The Supreme Court found that Congress lacked the constitutional
authority to enact the section’s civil remedy, finding neither
Commerce Clause authority nor authority under § 5 of the
Fourteenth Amendment. See 120 S. Ct. at 1754.
21
(citing United States v. Darby, 312 U.S. 100, 114-15 (1941) and
Heart of Atlanta Motel v. United States, 379 U.S. 241, 256
(1964)). “This category extends beyond the regulation of
highways, railroads, air routes, navigable rivers, fiber-optic
cables and the like.” Robinson, 119 F.3d at 1210. This category
was one of the categories used to prohibit racial discrimination
in public accommodations and has been used to prevent illicit
goods from traveling through the channels of commerce. See id.
(citing Heart of Atlanta Motel, 379 U.S. at 256).
“Second, Congress is empowered to regulate and protect the
instrumentalities of interstate commerce, or persons or things in
interstate commerce, even though the threat may come only from
intrastate activities.” Lopez, 514 U.S. at 558 (citing
Shreveport Rate Cases, 234 U.S. 342 (1914), S. Ry. Co. v. United
States, 222 U.S. 20 (1911), and Perez v. United States, 402 U.S.
146 (1971)). “Congressional regulation or protection of persons
or things that move in interstate commerce must ensure that, in
fact, a particular threat — whether posed by an interstate or
intrastate activity — actually threatens persons or things with a
plain and clear nexus to interstate commerce.” Bird, 124 F.3d at
674.
“Finally, Congress’ commerce authority includes the power to
regulate those activities having a substantial relation to
interstate commerce, i.e., those activities that substantially
affect interstate commerce.” Lopez, 514 U.S. at 558-59 (citing
22
N.L.R.B. v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937), and
Maryland v. Wirtz, 392 U.S. 183 (1968)). This category includes
two separate analytical components: first, whether the regulated
activity involves “commerce” or “economic” activity and, second,
whether the regulation is “an essential part of a larger
regulation of economic activity.” Id. at 561. As will be
discussed in more detail below, Morrison further refined this
third category of interstate activity.
In delineating these categories, the Lopez Court also
reaffirmed traditional principles of Commerce Clause
jurisprudence. See United States v. Knutson, 113 F.3d 27, 29
(5th Cir. 1997) (“In [Lopez] the Court identified an outer limit
to congressional authority under the Commerce Clause; . . . the
Court did not purport to eliminate or erode well-established
Commerce Clause precedents.”). More specifically, the Lopez
Court reaffirmed the rational basis test by which we are bound to
evaluate the constitutionality of congressional actions. See
Lopez, 514 U.S. at 557 (recognizing the duty of courts to
evaluate whether “a rational basis exist[s] for concluding that a
regulated activity sufficiently affect[s] interstate commerce”).
Further, this circuit has interpreted Lopez as reaffirming “the
proposition set forth in Wickard v. Filburn17 concerning
17
317 U.S. 111, 125 (1942) (“[E]ven if appellee’s activity
be local and though it may not be regarded as commerce, it may
still, whatever its nature, be reached by Congress if it exerts a
substantial economic effect on interstate commerce.”).
23
congressional regulation of intrastate, noncommercial activity.”
United States v. Bird, 124 F.3d 667, 676 (5th Cir. 1997) (“After
Wickard — and its reaffirmance in Lopez — there can be no
question that Congress is able to regulate noncommercial,
intrastate activity that substantially affects interstate
commerce.”).
2. Commerce Clause After Morrison: Refinement of Lopez’s Third
Category of Permissible Congressional Regulation
In Morrison, the Supreme Court clarified this circuit’s
interpretation of Lopez and provided further analytical guidance
as to the third category of activity — “substantially affecting
interstate commerce.” The Morrison Court looked to four
additional factors to determine whether the congressional act at
issue exceeded the scope of its constitutional authority.
First, the Court considered the “economic nature of the
regulated activity.” See Morrison, 120 S. Ct. at 1750 (“‘Where
economic activity substantially affects interstate commerce,
legislation regulating that activity will be sustained.’”)
(quoting Lopez, 514 U.S. at 560). The Court emphasized the
economic or commercial character of previous Commerce Clause
cases. See id. (collecting cases). The Court found that in both
Lopez and Morrison, neither the “actors” nor the “conduct” of the
regulation had a commercial character, and neither the “purpose”
24
nor the “design” of the statute had an evident commercial nexus.
See id.
Second, the Morrison court determined that the lack of an
express jurisdictional element in the Lopez statute weakened the
claim that Congress was acting within its Commerce Clause powers.
See id. at 1750-51 (“Such a jurisdictional element may establish
that the enactment is in pursuance of Congress’ regulation of
interstate commerce.”).
Third, the Court found that while Congress was not required
to make formal findings, “the existence of such findings may
‘enable us to evaluate the legislative judgment that the activity
in question substantially affect[s] interstate commerce, even
though no such substantial effect [is] visible to the naked
eye.’” Id. at 1751 (quoting Lopez, 514 U.S. at 553).
Finally, the Court cautioned against accepting an
“attenuated” connection between the regulation and the interstate
activity. See id. Concerned that causal, “but-for” arguments
could lead to an evisceration of any limitations on federal
power, the Court held Congress to a more direct link.
With these interpretive principles in mind, we now turn to
analyze the Parish’s challenge to the reasonable accommodations
provision of the FHAA. Our task is to determine whether Congress
had a rational basis, as defined by Lopez-Morrison, to enact
§ 3604(f)(3)(B).
25
C. The FHAA Substantially Affects Interstate Commerce and Is
Constitutional Under a Lopez-Morrison Analysis
The Parish argues that none of the Lopez categories would
provide Congress the authority to enact the FHAA. We agree that
the first and second Lopez categories, involving the use of the
channels of interstate commerce, and instrumentalities of
interstate commerce are inapplicable here. It is the third Lopez
category, involving activities that substantially affect
interstate commerce, on which we base our rejection of the
Parish’s Commerce Clause argument. To reach our conclusion, we
analyze each of the four additional Morrison factors in turn.
1. The Reasonable Accommodations Provision Regulates Economic
Activity Involving the Purchase, Sale, or Rental of Housing
Under Lopez-Morrison, to figure out whether an activity
substantially affects interstate commerce, the first question we
must ask is whether the regulated activity is an activity
economic in nature. See 120 S. Ct. at 1750 (“[The Court’s]
review of Commerce Clause case law demonstrates that in those
cases where we have sustained federal regulation of intrastate
activity based upon the activity’s substantial effects on
interstate commerce, the activity in question has been some sort
of economic endeavor.”). This query derives from the general
Lopez requirement that the regulated intrastate activities,
“arise out of or are connected with a commercial transaction,
26
which viewed in the aggregate, substantially affects interstate
commerce.” Lopez, 514 U.S. at 561.
More specifically, the first Morrison question regarding
“economic” activity, is answered by a close reading of Lopez,
which provides two recognized and historically rooted means of
congressional regulation under the commerce power: (1) whether
the activity is “any sort of economic enterprise, however broadly
one might define those terms”; or (2) whether the activity exists
as “an essential part of a larger regulation of economic
activity, in which the regulatory scheme could be undercut unless
the intrastate activity were regulated.” Lopez, 514 U.S. at 561.
Using these two questions as our analytical framework, we
determine under Lopez-Morrison, that Congress acted within its
constitutional power to enact the FHAA reasonable accommodations
provision.
a. The Purchase, Sale, or Rental of Residential Housing Is an
Economic/Commercial Activity
The Parish argues that the activity being regulated is
“wholly non-economic” and presumably non-commercial. We disagree
finding that § 3604(f)(3)(B) affected the commercial transaction
of purchasing a home and the commercial rental of housing, and,
therefore, fits well within the broad definition of economic
activity established by the Supreme Court and other circuits.
27
The activity being regulated is one that directly affects
the commercial residential and rental housing market. “In every
case where we have sustained federal regulation under Wickard’s
aggregation principle, the regulated activity was of an apparent
commercial character.” Morrison, 120 S. Ct. at 1750 n.4. A
denial of reasonable accommodations affects a disabled
individual’s ability to buy, sell, or rent housing. It is an act
of discrimination that directly interferes with a commercial
transaction, and is an act that can be regulated to facilitate
economic activity. The Parish’s decision to deny Groome
Resources a reasonable accommodation, therefore, is directly tied
to the economic activity of buying a home, and the commercial
activity of operating an Alzheimer’s care facility.
As all American homeowners can attest, it is a transparently
commercial action to buy, sell, or rent a house. Not only is it
quite literally a “commercial transaction,” but viewed in the
aggregate, it implicates an entire commercial industry.18 A
purchase of a house is “commercial intercourse,” Gibbons v.
18
The residential housing market in the United States is
of tremendous economic significance to the national economy. In
1997, the United States Census reported that the single-family
housing construction industry was valued at over $146 billion and
employed over 570,000 people. See U.S. DEP’T OF COMMERCE, BUREAU OF
THE CENSUS: 1997 ECONOMIC CENSUS, CONSTRUCTION, tbl. 3, at 9, tbl. 2, at
8; see also United States v. Patterson, 792 F.2d 531, 534 (5th
Cir. 1986) (“Housing construction is certainly a commercial
activity.”). Further, residential real estate lessors, agents,
brokers, and managers had revenues of over $91 billion. See U.S.
DEP’T OF COMMERCE, BUREAU OF THE CENSUS: 1997 ECONOMIC CENSUS, REAL ESTATE
AND RENTAL AND LEASING, tbl. 1, at 7.
28
Ogden, 22 U.S. (9 Wheat.) 1, 193 (1824), at its purest form,
involving capital outlay, financing and mortgage arrangements,
profit, debt and investment considerations, and thus speaks to
both the “commercial character” and economic nature of the
transaction.19
In the instant case, not only are we faced with a commercial
transaction, but an interstate commercial transaction. Groome
Resources, a New Orleans-based limited liability partnership,
contracted to purchase a house from Cendant Mobility Services
Corporation, a national relocating company. This interstate
purchase was financed by an interstate lender, Whitney National
Bank. Most importantly, this interstate commercial transaction
was impeded by an act of housing discrimination — namely the
Parish’s failure to reasonably accommodate disabled individuals
wishing to live in a group home. Therefore, as a factual matter,
Groome Resources’ proposed purchase of rental property to be used
as a group home satisfies the requirement that we are confronting
a commercial and economic activity.
The commercial nature of this activity is further
strengthened by the fact that Groome Resources exists as a for-
19
Moreover, most housing purchases involve realtors,
brokers, title insurance, title registration and legal fees, and
may involve federally backed mortgages and the secondary mortgage
market. In addition to supporting the commercial nature of a
housing purchase, many of the above factors also involve actors
with interstate ties. See McLain v. Real Estate Bd. Inc., 444
U.S. 232, 245 (1980); Goldfarb v. Va. State Bar, 421 U.S. 773,
785 (1975).
29
profit entity providing rental housing to its clients and is,
thus, itself a commercial actor.20 The Supreme Court has
recently ratified our understanding of both the commercial and
interstate nature of renting real property. The Court’s
decisions in Jones v. United States, 120 S. Ct. 1904 (2000) and
Russell v. United States, 471 U.S. 858 (1985) make clear that
renting and otherwise using housing for commercial purposes
implicates the federal commerce power.21
In Russell, the defendant was convicted of attempting to
burn down an apartment complex from which he earned rental
income. He challenged his conviction stating that the building
was not commercial or business property and, thus, not an
activity affecting interstate commerce. The Court found that
“[t]he rental of real estate is unquestionably” an “activity that
affects commerce.” Russell, 471 U.S. at 862. The Court found
20
In addition to the commercial aspect of purchasing the
home, it must be noted that the granting of reasonable
accommodations to Alzheimer’s group homes and other homes for
disabled individuals also affects the commercial viability of
care organizations like Groome Resources. The district court
found that the zoning ordinance, with its limitation on four
unrelated persons, “will make it economically unfeasible for
plaintiff to operate the proposed home.” The court recognized
that the economic viability of this care facility was impeded by
the refusal to grant an accommodation.
21
In both cases, the Court was confronted with the
statutory reach of the federal arson statute, 18 U.S.C. § 844(i),
which prohibits the damage or destruction “by means of fire or an
explosive, any . . . property used in interstate or foreign
commerce or in any activity affecting interstate or foreign
commerce.” 18 U.S.C. § 844(i) (2000).
30
dispositive the existing “commercial market” in rental property
as the justification for congressional power to criminalize
ostensibly local arson:
[We] recognize that the local rental of an apartment unit is
merely an element of a much broader commercial market in
rental properties. The congressional power to regulate the
class of activities that constitute the rental market for
real estate includes the power to regulate individual
activity within that class.
Id.22 This recognition was reaffirmed in the recent Jones
decision.
In Jones, the Court reversed and remanded a conviction based
on § 844(i) involving the fire-bombing of a private residence.
The Court held that “an owner-occupied residence not used for any
commercial purpose does not qualify as property ‘used in’
commerce or commerce-affecting activity.” Jones, 120 S. Ct. at
1908. The Jones Court distinguished Russell, finding that the
dispositive fact in that case was that “[p]etitioner was renting
his apartment building to tenants at the time he attempted to
destroy it by fire.” Id. at 1909 (quoting Russell, 471 U.S. at
862)23; see also United States v. Corona, 108 F.3d 565, 570-71
22
The Court relied on the arson statute’s legislative
history to find that the purpose of the statute, “suggests that
Congress at least intended to protect all business property, as
well as some additional property that might not fit that
description, but perhaps not every private home.” Russell, 471
U.S. at 862.
23
The Jones Court also posited a functionality test to
determine whether arson of a building is a commerce-affecting
act. The Court held that “[t]he proper inquiry . . . is into the
function of the building itself, and then a determination of
31
(5th Cir. 1997) (upholding § 844(i) conviction and stating, “[w]e
find that these convictions comport with the Commerce Clause
because of the fact that the fire spread to the United Cab
warehouse. . . . Not only was the . . . property actually being
rented, but it was serving a commercial rather than a residential
purpose.”).
In each of these cases, congressional authority for
regulation rested on the rental or commercial use of the
property. As the Groome Resources group home was both a rental
property charging monthly rent to its clients and a commercial
operation, we find that the home’s commercial use
“unquestionably” is an “activity that affects commerce.”24 The
failure to grant a reasonable accommodation to the home is an act
whether that function affects interstate commerce.” Jones, 120
S. Ct. at 1910. In the instant case, the house is functioning as
a rental unit for disabled individuals, which under Russell can
be regulated under the commerce power.
24
We are mindful of Justice Souter’s dissenting
admonition that the Morrison majority had created an unworkable
“formalistic economic/noneconomic distinction.” 120 S. Ct. at
1768 (Souter, J., dissenting). While we need not resolve this
problem in a factual situation that presents no such issue, the
logic of the Jones/Morrison court could suggest that Congress has
the constitutional authority to regulate discrimination against
the disabled in housing that is rented or otherwise used for
commercial purposes, but not regulate the sale or purchase of a
home to be used for private uses by the disabled. Of course, the
regulated activity of arson in Jones is readily distinguishable
from the purchase or sale of a house. In future cases, however,
courts may be called upon to resolve the issue of whether housing
discrimination involving purely private actors for private, non-
commercial use, substantially affects interstate commerce more
than arson and, thus, confront the categorical logic of Jones/
Morrison.
32
of discrimination against the disabled that frustrated an
interstate commercial transaction, and affected a commercial
endeavor. Therefore, while not dispositive, these cases support
the conclusion that we are dealing with a commercial activity
that falls within the purview of Congress’s regulatory
authority.25
We are further supported in our determination that
discrimination infringing on the rental, purchase, and sale of
real estate is activity “economic in nature,” by the broad
reading given to “economic activity” by other courts. Most
recently, the Morrison Court provided an expansive reading of
economic activity that affected interstate commerce, including as
it did Wickard’s regulation of homegrown and home-consumed wheat.
See 120 S. Ct. at 1750; see also Lopez, 514 U.S. at 574
(recognizing our evolution from “an understanding of commerce
25
The Supreme Court has also permitted congressional
regulation of the interstate sale of real property through the
Sherman Act. In Goldfarb v. Va. State Bar, the Court relied on
the interstate nature of real estate title examinations to find
that the Sherman Act applied to minimum fee schedules. See 421
U.S. 773, 785 (1975) (“Given the substantial volume of commerce
involved, and the inseparability of this particular legal service
from the interstate aspects of real estate transactions, we
conclude that interstate commerce has been sufficiently
affected.”). Similarly, the Court found Sherman Act jurisdiction
against real estate firms and brokers, because “[i]t is clear
that an appreciable amount of commerce is involved in the
financing of residential property . . . and in the insuring of
titles to such property. . . [and] this appreciable commercial
activity has occurred in interstate commerce.” McLain v. Real
Estate Bd. Inc., 444 U.S. 232, 245 (1980).
33
that would serve only an 18th century economy”); United States v.
Bailey, 115 F.3d 1222, 1228 n.7 (5th Cir. 1997) (“The
construction of the term ‘commerce’ is a practical one and
embraces economic activity beyond that which is traditionally
considered commerce.”).
A broad reading of “economic” has been accepted in other
circuits that have addressed the Commerce Clause after Morrison.
For example, the Court of Appeals for the Fourth Circuit in Gibbs
v. Babbitt upheld a federal statute limiting the taking of red
wolves on private lands based on the economic consequences of the
activity, including its effect on “red wolf related tourism,”
“scientific research,” and “commercial trade in pelts.” See 214
F.3d 483, 492 (4th Cir. 2000). The court recognized the
“breadth” of the concept of economic activity,
Although the connection to economic or commercial activity
plays a central role in whether a regulation will be upheld
under the Commerce Clause, economic activity must be
understood in broad terms. Indeed, a cramped view of
commerce would cripple a foremost federal power and in so
doing would eviscerate national authority.
Id. at 491; see also United States v. Gregg, 226 F.3d 253, 262
(3d Cir. 2000)26 (“We thus hold that although the connection to
economic or commercial activity plays a central role in whether a
26
In a post-Morrison case, the Gregg court upheld the
constitutionality of the Freedom of Access to Clinic Entrances
Act (FACE) against a Commerce Clause challenge based on a
rationale that “the misconduct regulated by FACE, although not
motivated by commercial concerns, has an effect which is, at its
essence, economic.” 226 F.3d at 262.
34
law is valid under the Commerce Clause, we hold that economic
activity can be understood in broad terms.”).
This circuit has also recognized a broad reading of
commercial and economic activities under the Commerce Clause.
See Bailey, 115 F.3d at 1228 n.7 (finding, under the Child
Support Recovery Act, that “[c]hild support obligations and their
ensuing payments constitute economic activity and are thus
properly the subject of Commerce Clause regulation”); United
States v. Threadgill, 172 F.3d 357, 372 (5th Cir. 1999) (holding
that 18 U.S.C. § 1955, prohibiting illegal gambling, and 31
U.S.C. § 5324, prohibiting unlawful structuring of a currency
transaction to evade reporting, could be regulated under the
Commerce Clause because both regulate “purely commercial
activities”); United States v. Bird, 124 F.3d 667, 682 (5th Cir.
1997) (upholding a Commerce Clause challenge to the Freedom of
Access to Clinic Entrances Act on the grounds that Congress could
“ensure the availability of abortion-related services in the
national commercial market”); United States v. Coleman, 78 F.3d
154, 159 (5th Cir. 1996) (upholding federal car-jacking statute
because such “forms of auto theft are crucial to the interstate
commerce of stolen automobiles and auto parts”).
As a final point, we must emphasize that in the context of
the strong tradition of civil rights enforced through the
Commerce Clause — a tradition in which the FHAA firmly sits — we
have long recognized the broadly defined “economic” aspect of
35
discrimination. As the Supreme Court stated in Heart of Atlanta
Motel, Inc. v. United States,
In framing Title II of [The Civil Rights Act of 1964]
Congress was also dealing with what it considered a moral
problem. But that fact does not detract from the
overwhelming evidence of the disruptive effect that racial
discrimination has had on commercial intercourse. It was
this burden which empowered Congress to enact appropriate
legislation.
379 U.S. 241, 257 (1964) (emphasis added); see also United States
v. Hickman, 179 F.3d 230, 236 (5th Cir. 1999) (Higginbotham, J.,
dissenting from the affirmance of the district court’s judgments
by an equally divided court) (discussing Heart of Atlanta Motel,
“[t]hat this economic regulation also had the goal — even a
larger goal — of undermining a racist social norm does not defeat
its constitutionality”).27 As long as there is recognition of an
27
The economic effect of housing discrimination against
the disabled is equivalent to the economic effect of racial
discrimination in 1964. In fact, parallels were overtly
recognized in the congressional debates leading to the passage of
the FHAA. For example, in proposing to extend FHA protection to
handicapped individuals, Representative Peter W. Rodino stated on
the House floor, “I believe . . . [the FHAA] is the logical and
necessary next step in our attempt to deal with housing
discrimination. The effort that we began 1966 must be completed,
so that all Americans can be assured of freedom of choice in
choosing their homes.” 134 CONG. REC. H4604 (1988). The powerful
words denouncing the local discrimination in Katzenbach v.
McClung, therefore are equally relevant to our present situation,
[W]hile the focus of the legislation was on the individual
[actor’s] relation to interstate commerce, Congress
appropriately considered the importance of that connection
with the knowledge that the discrimination was but
representative of many others throughout the country, the
total incidence of which if left unchecked may well become
far-reaching in its harm to commerce.
36
interstate effect, discrimination, even local discrimination, can
be regulated under Congress’s commerce power. See Heart of
Atlanta Motel, 379 U.S. at 258.
As the FHAA in general, and the reasonable accommodations
provision in particular, prohibit discriminatory actions in the
purchase, sale, or rental of housing — commercial transactions
that have an obvious economic impact — we are satisfied that the
activity regulated is economic in nature.
b. Congress May Regulate National Markets
Alternatively, the Lopez Court provided a second, related
analytical means to justify congressional regulation of
intrastate activity that affects the national market. See 514
U.S. at 574 (“Congress can regulate in the commercial sphere on
the assumption that we have a single market and a unified purpose
to build a stable national economy.”) (Kennedy, J.,
concurring).28 The Court held that regulation is sustainable if
it exists as “an essential part of a larger regulation of
379 U.S. 294, 301 (1964) (citations and internal quotation marks
omitted).
28
The Morrison Court did not analyze this aspect of Lopez,
as there exists no “national market” to protect women from
violence. The Court did, however, cite to Justice Kennedy’s
concurrence in Lopez, recognizing this means of analysis. See
Morrison, 120 S. Ct. at 1750 (“Lopez did not alter our ‘practical
conception of commercial regulation’ and that Congress may
‘regulate in the commercial sphere on the assumption that we have
a single market and a unified purpose to build a stable national
economy.’”).
37
economic activity, in which the regulatory scheme could be
undercut unless the intrastate activity were regulated.” Lopez,
514 U.S. at 561; see also Hickman, 179 F.3d at 231 (Higginbotham,
J., dissenting) (“Of course, Congress may protect, enhance, or
restrict some particular interstate economic market, such as
those in wheat, credit, minority travel, abortion service,
illegal drugs, and the like, and Congress may regulate intrastate
activity as part of a broader scheme.”); Bird, 124 F.3d at 682.
This understanding of the Commerce Clause power has a long
lineage in the Supreme Court’s jurisprudence,
A complex regulatory program . . . can survive a Commerce
Clause challenge without a showing that every single facet
of the program is independently and directly related to a
valid congressional goal. It is enough that the challenged
provisions are an integral part of the regulatory program
and that the regulatory scheme when considered as a whole
satisfies this test.
Hodel v. Indiana, 452 U.S. 314, 329 n.17 (1981) (collecting
cases); see also Hughes v. Alexandria Scrap Corp., 426 U.S. 794,
803 (1976) (recognizing “the premise, well established by the
history of the Commerce Clause, that this nation is a common
market”); Gibbs v. Babbitt, 214 F.3d 483, 497 (4th Cir. 2000)
(recognizing same in post-Morrison case).
In the context of fair housing, Congress has manifested its
plain intent to prohibit discrimination in the national market
for housing. See 42 U.S.C. § 3601 (“It is the policy of the
United States to provide within constitutional limitations, for
fair housing throughout the United States.”(emphasis added)).
38
Congress acted in response to the recognition that in a mobile
society in which people and families move within states and
localities, and where local land use laws affect the movement of
people, there is a national effect on housing materials, economic
development, and growth of certain restricted areas.29 The
reasonable accommodations provision is but one means by which to
prevent housing discrimination against disabled individuals, and
thus, one means to counteract the economic effect of housing
discrimination at the national level.
“Where the class of activities is regulated and that class
is within the reach of federal power, the courts have no power to
excise, as trivial, individual instances of the class.” Perez v.
United States, 402 U.S. 146, 154 (1971). Therefore, the Parish’s
challenge to the reasonable accommodations provision must be
evaluated in the context of the entire statute. See Lopez, 514
U.S. at 558 (“Where a general regulatory statute bears a
substantial relation to commerce, the de minimis character of
individual instances arising under that statute is of no
consequence.” (quoting Maryland v. Wirtz, 392 U.S. 183, 197
(1968)). Undertaking that analysis, we are satisfied that since
§ 3604 affects the interstate market for housing, we must uphold
the individual provisions of the statute.
29
See infra notes 34 & 35.
39
In similar fashion, the national regulation of fair housing
also undermines the Parish’s “local land use” argument. Local
efforts to exclude the disabled from the community by refusing to
provide reasonable accommodations to zoning laws, may be
regulated on a federal level if that local refusal affects the
national economy. See Heart of Atlanta Motel, 379 U.S. at 258
(“[I]f it is interstate commerce that feels the pinch, it does
not matter how local the operation which applies the squeeze.”
(citations omitted)). Thus, that the act of discrimination takes
place on a local stage is of no moment, because when Congress has
chosen a national arena to regulate, every actor that affects
commerce is subject to regulation.
Because the Parish’s decision to deny Groome Resources a
reasonable accommodation is inextricably tied to the economic
activity of buying a home and the commercial activity of
operating a rental-based Alzheimer’s care facility, and the
culmination of many such activities could rationally be
determined to have a substantial effect on the national housing
market, we find that under the Lopez-Morrison rational basis
test, Congress acted within its Commerce Clause authority.
Therefore, under both of the recognized means of regulation
analyzed in Lopez, we find Morrison’s first question — of whether
the activity is economic or commercial in nature — to be
satisfied.
40
2. There Is No Express Jurisdictional Element
As the FHAA has no express jurisdictional element, we need
not belabor this second prong of the Morrison analysis. See
Morrison, 120 S. Ct. at 1750-51 (finding that a jurisdictional
element could assist constitutional interpretation by providing
“an explicit connection with or effect on interstate commerce”);
see also Lopez, 514 U.S. at 561-62 (requiring a jurisdictional
element to facilitate a “case-by-case inquiry” into the
interstate “nexus”).
We do note, however, that the requirement of a
jurisdictional element in both Morrison and Lopez is relevant
only because there was no obvious interstate economic connection
in those cases, involving as they did, non-economic and
intrastate activities. While we do not rest our holding on this
factor, the explicit economic nature of commercial housing used
for rental purposes and the economic effect of discrimination on
the national housing market (as detailed above) presents a very
different situation than cases challenging non-economic and non-
commercial regulatory acts.
3. The Legislative History of the FHAA Supports the Interstate
Nature of the Reasonable Accommodations Provision
The third prong of Morrison asks whether the legislative
history of the Act provides insight into the “legislative
judgment that the activity in question substantially affects
41
interstate commerce, even though no such substantial effect is
visible to the naked eye.” 120 S. Ct. at 1751. As is evidenced
by the interstate, economic nature of housing discrimination
discussed previously, we are not dealing with an invisible
effect.
Nevertheless, following the dictates of Morrison, we find
the legislative action that resulted in the passage of the FHAA
to have recognized a pattern of discrimination that affected the
interstate housing market and the creation of commercial group
homes for handicapped individuals. The passage of the FHAA in
1988 was the culmination of eight years of congressional
discussion on the topic of discrimination against the disabled.30
Hearings on the subject were held in 1979,31 1986,32 and 1988.33
30
See H.R. REP. NO. 100-711, at 14-15 (1988), reprinted in
1988 U.S.C.C.A.N. 2175-76 (detailing the history of the FHAA
since 1980); see also 134 CONG. REC. H4604 (1988) (statement of
Rep. Rodino) (“The second historic feature of the bill is its
inclusion of handicapped persons and families with children
within Title VIII coverage. We knew of the plight of the
handicapped when we voted to pass the Fair Housing Amendments Act
of 1980.” (emphasis added)).
31
See Fair Housing Amendments Act of 1979: Hearing on H.R.
2540 Before the Subcomm. on Civil and Constitutional Rights of
the House Comm. on the Judiciary, 96th Cong. 1-697 (1979).
32
See Fair Housing Amendments Act: Hearing on H.R. 4119
Before the Subcomm. on Civil and Constitutional Rights of the
House Comm. on the Judiciary, 99th Cong. 1-309 (1986).
33
See Fair Housing Amendments Act of 1987: Hearing on H.R.
1158 Before the Subcomm. on Civil and Constitutional Rights of
the House Comm. on the Judiciary, 100th Cong. 1-699 (1987); Fair
Housing Amendments Act: Hearing on S. 558 Before the Subcomm. on
the Constitution of the Senate Comm. on the Judiciary, 100th
42
Citizens, advocates, and government officials testified as to the
nature of the problem.34 Congress even requested legal briefing
on the interstate nature of the discrimination.35
Cong. 1-837 (1987).
34
See Hearing on H.R. 2540, 96th Cong. 3-14 (1979)
(statement of Drew S. Days, III, Assistant Attorney General,
Civil Rights Division, Department of Justice); id. at 515-23
(statement of Willia Knighton, Consortium Concerned with the
Developmentally Disabled); id. at 625-27 (statement of Jay
Dystel, Director of Advocacy, American Coalition of Citizens with
Disabilities); id. at 645-81 (statement from Congressional
Research Service on “Legal Analysis of Issues Relating to Draft
Legislation Amending the Fair Housing Act to Prohibit
Discrimination Against Handicapped Persons”); Hearing on H.R.
4119, 99th Cong. 53-62 (1986) (statement of the Honorable
Hamilton Fish, Jr.); id. at 100-10 (statement of Bonnie Milstein,
Civil Rights Task Force, Consortium of Citizens with
Developmental Disabilities); id. at 247-51 (statement of Sharon
Mistler); id. at 257-62 (statement of David M. Capozzi, Associate
Advocacy Director, Paralyzed Veterans of America); Hearing on
H.R. 1158, 100th Cong. 40 (1987) (statement of the Honorable Don
Edwards); id. at 42-44 (statement of Peter W. Rodino, Jr.,
Chairman, Committee on the Judiciary, U.S. House of
Representatives); id. at 571-84 (statement of Edward Roberts,
President, World Institute on Disability); Hearing on S. 558,
100th Cong. 3-5 (statement of Senator Edward M. Kennedy); id. at
95-102 (statement of Marcia Bristo, President, National Centers
on Independent Living); id. at 376-80 (statement of Michael
Wilson, Member, Public Policy Committee, National Mental Health
Association).
35
See Hearing on H.R. 2540, 96th Cong. 645-81 (1979)
(statement from Congressional Research Service on “Legal Analysis
of Issues Relating to Draft Legislation Amending the Fair Housing
Act to Prohibit Discrimination Against Handicapped Persons”).
The report found:
Discrimination against the handicapped as prohibited by the
proposed Fair Housing Amendments of 1979 (draft legislation)
would in all probability have some effect upon interstate
commerce, especially in view of the mobility of persons in
this country. Persons are constantly moving to and from
States and most families live in several different
localities during their lifetimes. State and local land use
43
While the final 1988 Amendments were passed without formal
findings, as this court recognized in the context of the federal
regulation of machine guns, congressional findings, even if not
explicitly reiterated in each incarnation of the legislation,
“clearly subsist in the cumulative memory of Congress.” United
States v. Knutson, 113 F.3d 27, 30 (5th Cir. 1997). This memory
includes not only the anti-discriminatory purpose of the FHAA,
but also the FHA. See Seniors Civil Liberties Ass’n v. Kemp, 965
F.2d 1030, 1034 (11th Cir. 1992) (“Congress had ample evidence
before it, and was adequately aware, that its exercise of power
under the Fair Housing Act was supported by the Commerce
Clause.”).36 As Senator Weicker stated on the floor of the
and housing controls which discriminate against handicapped
persons keep such persons from living in particular areas or
cause them to reside in discrete, undesirable areas thus
obstructing the flow of housing materials as well as persons
across state lines. Specific acts of such discrimination,
when magnified to a general trend, affect commercial
dealings, practices and opportunities in interstate
commerce.
Id. at 676.
36
The legislative record of the FHA regarding the effect
of discrimination on interstate commerce, and thus Congress’s
authority to regulate that discrimination is well established.
See Fair Housing Amendments Act of 1969: Hearings on S. 1358, S.
2114, S. 2280 Before the Subcomm. on Housing and Urban Affairs of
the Senate Comm. on Banking and Currency, 90th Cong. 7 (1969)
(statement of Ramsey Clark, Attorney General of the United
States) (“I clearly think under the commerce clause the United
States has the power delegated to it to rid the Nation of this
evil [racial discrimination] which so affects our commerce and
the lives of our citizens through our commerce.”); id. at 14
(prepared brief by Attorney General of the United States)
(“Discrimination in housing affects this interstate commerce in
44
Senate, the FHAA legislation was introduced “to provide
comprehensive civil rights protections for disabled individuals
that are parallel in scope of coverage to existing civil rights
laws protecting minorities.” 134 CONG. REC. S10552 (1988). As
the connection between racial discrimination and its affect on
interstate commerce had been established in Heart of Atlanta
Motel and McClung, Congress was well within its institutional
authority to act to prevent discrimination against the disabled.
Lopez directs us to “consider legislative findings, and
indeed even congressional committee findings, regarding effect on
interstate commerce.” 514 U.S. at 563.37 However, the Court
several ways. The confinement of Negroes and other minority
groups to older homes in ghettoes restricts the number of new
homes which are built and consequently reduces the amount of
building materials and residential financing which moves across
state lines. Negroes, especially those in the professions or in
business, are less likely to change their place of residence to
another state when housing discrimination would force them to
move their families into ghettoes; the result is both to reduce
the interstate movement of individuals and to hinder the
efficient allocation of labor among the interstate components of
the economy. The Commerce Clause grants Congress plenary power
to protect interstate commerce from adverse effects such as
these.”); id. at 129 (statement of Rev. Robert F. Drinan, Dean,
Boston College Law School) (discussing power of Congress under
the Commerce Clause).
Testimony on the FHAA also demonstrated that handicapped
and mentally ill individuals are segregated in housing options
that do not provide an equal opportunity in housing. See supra
note 34.
37
The Commerce Clause was explicitly referenced in the
Senate debates on the FHAA, albeit in terms of the regulation of
housing construction to fit the special needs of the disabled.
The debate between Senator Symms and Senator Specter
demonstrates the concern over this issue:
45
also recognized, “Congress normally is not required to make
formal findings as to the substantial burdens that an activity
has on interstate commerce.” Id.
In the instant case, we are satisfied that the legislative
record is replete with informal findings connecting direct
discrimination against the disabled with the larger and more
subtle effects on the interstate supply of housing.38 Congress
Mr. Symms. The question that I have, Mr. President, is when
we talk about who is enlightened and who is not enlightened,
when I look at the building codes in the United States as
opposed to the nonmarket countries, we have it way the best,
yet we are trying to impose the long nose of the Federal
Government into the size of bathrooms. And my question
would be to one of the learned Senators on the floor: What
clause in the Constitution gives the Federal Government the
right to go in and set the size of bathrooms and building
codes? Is this in the 13th amendment or is it from the
commerce clause in the Constitution? Where does this come
from? Is this even constitutional? That is my question.
* * * * *
Mr. Specter. Mr. President, I would be delighted to respond
to the question. The commerce clause.
Mr. Symms. The Senator says the commerce clause. Does the
size of bathrooms in multiunit housing affect the commerce
clause?
Mr. Specter. Yes.
Mr. Symms. How?
Mr. Specter. Because the Commerce Clause touches the
construction of housing where the materials passed in
interstate commerce. Where there is a determination by the
Congress of the United States that interstate commerce is
affected, the decisions by the Supreme Court of the United
States are clear that it may reach issues like housing
comprehended by this Fair Housing Act.
134 CONG. REC. S10541 (1988).
38
Particularly, we note that the legislative record
demonstrates a concern about group homes being discriminated
against through zoning mechanisms: “[The FHAA] is intended to
prohibit special restrictive covenants or other terms or
46
heard testimony about the lack of adequate housing for disabled
individuals,39 the overt discrimination against college
students,40 paralyzed veterans returning home from war,41 disabled
military spouses required to move interstate after their husbands
were transferred,42 and other instances of discrimination that
placed burdens on the interstate movement of persons and
conditions . . . which have the effect of excluding, for example,
congregate living arrangements for persons with handicaps.” H.R.
REP. NO. 100-711, reprinted in 1988 U.S.C.C.A.N. 2173, 2184; see
also Hearing on H.R. 2540, 96th Cong. 29 (1979) (statement of
Drew S. Days, III, Assistant Attorney General, Civil Rights
Division, Department of Justice) (“[W]e have learned of serious
impediments to the establishment of group homes for handicapped
persons who are being de-institutionalized. These impediments
are raised through the use of land use or occupancy laws. This
amendment could be used to attack discriminatory exclusion of
handicapped persons in the same way that the present Act is used
to attack racially discriminatory land use actions.”); Hearing on
H.R. 4119, 99th Cong. 108-09 (1986) (statement of Bonnie
Milstein, Civil Rights Task Force, Consortium of Citizens with
Developmental Disabilities); Hearing on H.R. 1158, 100th Cong.
582 (1987) (statement of Edward Roberts, President, World
Institute on Disability) (“Throughout the ten year history of
this bill there have been ongoing attempts to provide protections
for people living in group homes. These efforts have been
undertaken in recognition of the history of obstructionist
practices by many local jurisdictions.”).
39
See Hearing on S. 558, 100th Cong. at 95-102 (1987)
(statement of Marcia Bristo, President, National Centers on
Independent Living) (testifying about the 36 million Americans
who have disabilities and the resultant difficulties obtaining
housing).
40
See Hearing on H.R. 4119, 99th Cong. at 257-62 (1986)
(statement of David M. Capozzi, Associate Advocacy Director,
Paralyzed Veterans of America).
41
See id.
42
See id. at 247-51 (statement of Sharon Mistler).
47
commerce.43 This discrimination clearly depressed spending on
interstate housing, and imposed an artificial restriction on the
market. See McClung, 379 U.S. at 299.
This testimony, supported by legal briefs discussing
Congress’s constitutional authority under the Commerce Clause, is
sufficient to demonstrate that Congress was acting with
considered legislative judgment. Under a Lopez-Morrison
analysis, the legislative record suffices to demonstrate that
Congress had a rational basis to prohibit housing discrimination
because of its effect on interstate commerce. We recognize
“whether particular operations affect interstate commerce
sufficiently to come under the constitutional power of Congress
to regulate them is ultimately a judicial rather than a
legislative question.” Morrison, 120 S. Ct. 1752 (quoting Lopez,
514 U.S. at 557). However, on the facts presented, we are
satisfied that Congress acted within its constitutional authority
in enacting the FHAA.
4. The Connection Between the Reasonable Accommodations Provision
and Interstate Commerce Is Not Too Attenuated
The final factor for analysis under Morrison is an
attenuation analysis. In Lopez, the Supreme Court rejected the
government’s attempt to argue that because the possession of guns
43
See supra note 34.
48
may lead to violent crime, and that crime can affect the national
economy by increasing costs through insurance and decreasing
“national productivity,” there is a connection between possession
of guns and interstate commerce. Similarly, in Morrison, the
Court reaffirmed that there must be a more direct connection
between the regulation of violence against women and interstate
commerce. See Morrison, 120 S. Ct. at 1751 (“[In Lopez] [w]e
rejected these ‘costs of crime’ and ‘national productivity’
arguments because they would permit Congress to ‘regulate not
only all violent crime, but all activities that might lead to
violent crime, regardless of how tenuously they relate to
interstate commerce.”).
The attenuation argument in the instant case need not detain
us long. Unlike the need for several logical links to connect
the regulated activity with commerce as in Lopez and Morrison,
here the link is direct. We do not need to pile “inference upon
inference” to see that by refusing to reasonably accommodate the
disabled by discriminatory zoning laws, there will be less
opportunity for handicapped individuals to buy, sell, or rent
homes. The attendant financial loss to the economy from Groome
Resources’ failed attempt to purchase such a house in Louisiana
is a case in point.
The testimony presented to Congress well demonstrated that
discrimination against the disabled impeded housing rentals,
purchases, and interstate travel. Therefore, the regulation of
49
discriminatory policies in the purchase or rental of housing
directly affects the housing industry and the economy. Further,
we are bound by the logic of Heart of Atlanta and McClung, where
such a link between discrimination and commerce was ratified by
the Supreme Court. See McClung, 379 U.S. at 299-301 (discussing
Heart of Atlanta Motel).
5. Conclusion on the Commerce Clause
There is, however, a deeper concern embedded in the
attenuation analysis that implicates a structural issue of
federalism. The Morrison/Lopez courts were concerned about
unbounded federal power, and a concomitant federal invasion into
areas of traditional state authority.
We are therefore cognizant and respectful of Morrison’s
concern with the “distinction between what is truly national and
what is truly local.” 120 S. Ct. at 1754. We are persuaded,
however, that housing discrimination against the disabled is a
national concern that substantially affects the economic health
of the nation. While states and localities retain broad powers
to regulate and zone land within their jurisdictions, see Village
of Euclid v. Ambler Realty Co., 272 U.S. 365, 393 (1926), this
local land use authority cannot defeat congressional action
predicated on a nexus between discrimination and commerce.
The discriminatory application of local land use authority
implicates the central concern of federalism as articulated by
50
Lopez and Morrison — namely that federalizing certain spheres of
authority blurs the federal/state distinction, undermining
political accountability and impeding local experimentation:
Federalism serves to assign political responsibility, not to
obscure it. . . . Were the Federal Government to take over
the regulation of entire areas of traditional state concern,
areas having nothing to do with the regulation of commercial
activities, the boundaries between the spheres of federal
and state authority would blur and political responsibility
would become illusory.
Lopez, 514 U.S. at 577 (Kennedy, J., concurring) (citations
omitted); see also id. at 581 (“If a State or municipality
determines that harsh criminal sanctions are necessary and wise
to deter students from carrying guns on school premises, the
reserved powers of the States are sufficient to enact those
measures.”); id. at 583 (“The statute now before us forecloses
the States from experimenting and exercising their own judgment
in an area to which States lay claim by right of history and
expertise.”).
“Our Federalism,” however, is not threatened here. While
the incantation of “local zoning” and “traditional” authority is
present in this case, in substance, the issue before this court
presents no federalism difficulty. Unlike Lopez or Morrison, it
does not serve the balance of federalism to allow local
communities to discriminate against the disabled. Local
authorities cannot “experiment” by creating communities that
exclude the disabled any more than local authorities can
experiment by excluding minorities. Further, the FHAA was passed
51
precisely because the political voice of the disabled was
silenced in local debates as they were not allowed to move into
the neighborhood in the first instance.44 The values of
political accountability and experimentation, in fact, may be
strengthened by the reasonable accommodations provision allowing
the disabled an equal opportunity to live and participate in our
communities, and thus change society through the local democratic
process.
To be clear, nothing in this analysis supports the argument
that the federal government can regulate the intricacies of local
zoning decisions. In fact, the vast majority of local zoning
decisions support the rationale of federalism, providing
political accountability and flexibility through local control.
Neither the reasonable accommodations provision nor the FHAA
purports to change this balance of power.45 See Bryant Woods Inn
Inc. v. Howard County Md., 124 F.3d 597, 603 (4th Cir. 1997) (“In
44
Testimony regarding the problem of discriminatory
zoning rules targeting group homes, and therefore their exclusion
from the community, was heard in congressional hearings in 1979,
1986, and 1987. See supra note 38.
45
Of course, there is also nothing that allows local
officials to avoid federal or constitutional requirements. There
is ample history of local land use being regulated when the
proper constitutional authorities require it. See, e.g., City of
Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 434 (1985)
(invalidating municipal zoning ordinance that discriminated
against mentally retarded citizens); Moore v. City of East
Cleveland, 431 U.S. 494, 499 (1977) (invalidating local housing
ordinance that limited occupancy of a dwelling to a circumscribed
definition of family).
52
enacting the FHA, Congress clearly did not contemplate abandoning
the deference that courts have traditionally shown to such local
zoning codes.”); see also Oxford House-C v. City of St. Louis, 77
F.3d 249, 253 (8th Cir. 1996) (“Congress also did not intend the
federal courts to act as zoning boards.”).
While federal courts are ill-equipped to act as zoning
boards, we have, however, proved competent in enforcing anti-
discrimination provisions enacted pursuant to the proper
constitutional authority.46 The challenged reasonable
accommodations provision simply prohibits discrimination in
housing against the disabled by providing equal access to housing
options. Because housing discrimination against certain members
of society is shown to affect interstate commerce, and that
discrimination is directly the result of local bias, it is well
within Congress’s power to provide measures such as the
reasonable accommodations provision to prohibit that
discrimination.
We end our discussion of § 3604(f)(3)(B) where Morrison
began its analysis: “Due respect for the decisions of a
coordinate branch of Government demands that we invalidate a
congressional enactment only upon a plain showing that Congress
has exceeded its constitutional bounds.” 120 S. Ct. at 1748.
46
See e.g., Hovsons, Inc. v. Township of Brick, 89 F.3d
1096, 1103-05 (3d Cir. 1996); Oxford House-C v. City of St.
Louis, 77 F.3d 249, 251 (8th Cir. 1996); Seniors Civil Liberties
Ass’n, 965 F.2d at 1036.
53
Following Morrison, we hold that Congress did not exceed its
bounds in determining that the decision to grant or deny
reasonable accommodations to a disabled buyer or renter of real
property was an activity “economic in nature,” and that Congress
can well prohibit discrimination in the national market for
housing. See id. at 1751. We are supported in our conclusion
that Congress had a rational basis for its regulation by the
lengthy legislative record of the FHAA, and the direct effect the
anti-discriminatory regulation has on interstate commerce.
For the foregoing reasons, we hold that § 3604(f)(3)(B) was
enacted pursuant to Congress’s legitimate authority under the
Commerce Clause and affirm the district court’s grant of an
injunction against the Parish of Jefferson.
D. The Reasonable Accommodations Provision Is Not
Unconstitutionally Vague
The Parish argues that even if we find § 3604(f)(3)(B) to be
a valid exercise of Congress’s commerce power, the reasonable
accommodations provision is unconstitutionally vague. We
disagree.
“A statute is unconstitutionally vague if it does not give a
‘person of ordinary intelligence a reasonable opportunity to know
what is prohibited.’” United States v. Bird, 124 F.3d 667, 683
(5th Cir. 1997) (quoting Grayned v. City of Rockford, 408 U.S.
104, 108 (1972)). The void-for-vagueness doctrine has been
54
primarily employed to strike down criminal laws. See Okpalobi v.
Foster, 190 F.3d 337, 358 n.10 (5th Cir. 1999). In the civil
context, “the statute must be ‘so vague and indefinite as really
to be no rule at all.’” Seniors Civil Liberties Ass’n v. Kemp,
965 F.2d 1030, 1036 (11th Cir. 1992) (quoting Boutilier v. INS,
387 U.S. 118, 123 (1967)).
Applying this standard, we find no merit in the Parish’s
contention that the provision is vague. In the first instance,
the reasonable accommodations terminology had a workable meaning
even before Congress adopted it in the FHAA. The legislative
history of the FHAA demonstrates that Congress chose the
reasonable accommodations language because “the concept of
reasonable accommodations has a long history in regulations and
case law dealing with discrimination on the basis of handicap.”
H.R. REP. NO. 100-711, at 25 (1988), reprinted in 1988
U.S.C.C.A.N. 2173, 2186 (citing Southeastern Cmty. Coll. v.
Davis, 442 U.S. 397, 410-12 (1979)).
This long history of interpretation has continued to the
present day as many of our sister circuits have interpreted the
reasonable accommodations provision without constitutional
difficulty. See, e.g., Bryant Woods Inn, Inc. v. Howard County,
Md. 124 F.3d 597, 602 (4th Cir. 1997); Smith & Lee Assocs., Inc.
v. City of Taylor, Mich., 102 F.3d 781, 794-96 (6th Cir. 1996);
Hovsons, Inc. v. Township of Brick, 89 F.3d 1096, 1103-05 (3d
Cir. 1996); Oxford House-C v. City of St. Louis, 77 F.3d 249, 251
55
(8th Cir. 1996); Seniors Civil Liberties Ass’n, 965 F.2d at 1036.
These cases, and the numerous district court decisions
interpreting the reasonable accommodations language, undermine
the Parish’s contention that the provision is unclear or
unworkable and certainly vitiates the argument that the provision
is equivalent “to being no rule at all”. Seniors Civil Liberties
Ass’n, 965 F.2d at 1036. We conclude that the reasonable
accommodations language is neither vague nor indefinite, and
therefore reject the Parish’s void-for-vagueness challenge.
V. CONCLUSION
For the above reasons, we AFFIRM the judgment of the
district court.
56