COLUMBUS COUNTRY CLUB, PETITIONER V. UNITED STATES OF AMERICA

   No. 90-1465

   In The Supreme Court Of The United States

   October Term, 1990

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Third Circuit

   Brief For The United States In Opposition

            TABLE OF CONTENTS
   Questions Presented
   Opinions below
   Jurisdiction
   Statement
   Argument
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. A2-A28) is reported
at 915 F.2d 877.  The decision and orders of the district court (Pet.
App. A29-A40) are unreported.

                             JURISDICTION

   The judgment of the court of appeals was entered on October 12,
1990.  A petition for rehearing was denied on December 18, 1990.  Pet.
App. A1.  The petition for a writ of certiorari was filed on March 18,
1991.  The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).  /1/

                          QUESTIONS PRESENTED

   1. Whether the Fair Housing Act applies to the Columbus Country
Club, a community of summer homes that requires homeowners to be
members of the Roman Catholic Church.

   2. Whether application of the Fair Housing Act to the Club violates
the First Amendment.

                               STATEMENT

   1. Petitioner maintains a community of 46 summer homes, called
bungalows, on a 23-acre tract of land along the Delaware River north
of Philadelphia.  Owners live in their bungalows only during the
summer months.  The property includes, in addition to the bungalows, a
clubhouse, a barn for lawn care equipment, and a chapel.  Petitioner's
recreational facilities include a tennis court, playground,
shuffleboard court, and a swimming area.  Petitioner has a liquor
license.  Pet. App. A4.

   Petitioner was organized in 1920 by the Knights of Columbus.  In
1922, title to the land was conveyed to a separate non-profit
corporation, which had as its stated purpose to "provide
accommodations for social intercourse, outdoor sport, and healthful
recreation" for members and their families.  Pet. App. A4, A5.  In
1924, the name of the organization was changed to the Columbus Country
Club.  In 1936, petitioner eliminated the requirement that members be
affiliated with the Knights of Columbus, but continued to limit
membership to Roman Catholic males.  Ibid.

   Petitioner is a non-profit organization that is owned and operated
by 46 "annual members," one for each bungalow.  The annual members own
the land collectively;  petitioner leases a bungalow lot to each
annual member.  C.A. App. 432-435.  The lease agreement provides that
each annual member shall improve the lot by building a bungalow, that
petitioner has legal title to the bungalow, and that the annual member
has a "quasi-proprietary interest" in the bungalow.  Id. at 70,
432-433.  Annual members may sell their interest in their bungalow,
subject to certain conditions, to any person who qualifies as an
annual member.  Id. at 204-206, 433.  Since 1970, there have been 31
transfers of ownership interests in bungalows;  since 1968, four
applicants have been rejected for annual membership.  Pet. App. A4-A6,
A30.

   Prior to August 30, 1987, annual membership was limited to male
Catholics.  Widows of annual members could not become annual members,
but were otherwise recognized as bungalow owners.  On August 30, 1987,
petitioner revised its by-laws to permit women to become annual
members, but did not alter the requirement that annual members be
members of the Roman Catholic Church.  Pet. App. A4-A6, A30, A31.

   Petitioner also issues "associate" memberships and "social"
memberships.  An associate member may live in a bungalow and use the
facilities on the grounds.  A social member may use only the
clubhouse.  The current by-laws do not require either type of member
to be male or Catholic.  /2/ Pet. App. A5.

   Petitioner is not formally affiliated with the Roman Catholic
Church or with any Catholic organization.  Pet. App. A5.  The Church
did not order the formation of the Club or require that its members be
Catholic.  C.A. App. 68, 236-238, 247.  Club documents, such as
amendments to the by-laws, are not submitted to the Church for
approval or review.  Id. at 233.  Prior to the August 1987 amendments,
the "purpose" section of the petitioner's by-laws did not mention
Catholicism or affiliation with the Catholic Church.  Pet. App. A5.

   In 1922, the Archbishop of Philadelphia granted special permission
to celebrate masses at the Club each Sunday, and provided a priest
from a nearby town for such services.  In addition, some members say
the rosary together in the evenings, and a statute of the Virgin Mary
stands in an area near the entrance to the Club grounds known as the
"grotto." Pet. App. A5, A30-A31.

   2. This lawsuit stems from the efforts of Anita Gualtieri to become
an annual member of the Club.  Mrs. Gualtieri's father had been an
annual member of the Club since the early 1950s.  In due course, the
family decided to transfer the property interest in the bungalow to
Mrs. Gualtieri.  Because Mrs. Gualtieri was not a male, and her
husband was not Catholic, neither was eligible for annual membership
under the Club's by-laws.  Pet. App. A6.

   When Mrs. Gualtieri's inquiries into whether the Club would change
its policies or grant an exception proved fruitless, she complained to
the Archdiocese of Philadelphia.  Her complaint focused on the Club's
refusal to admit woman members.  After an investigation, the
Archdiocese sent a letter to the Club stating that the allegations
were not unwarranted and threatening to withdraw permission to hold
masses and the services of a priest.  Pet. App. A6-A7, A31.

   On August 30, 1987, petitioner revised its by-laws to make them
gender-neutral.  After the by-laws were amended, Mrs. Gualtieri again
sought to become an annual member.  The Board of Governors rejected
her application.  Pet. App. A6-A7.

   3. In May 1987, Mrs. Gualtieri notified the Civil Rights Division
of the United States Department of Justice of petitioner's membership
policies.  After an investigation, the United States filed suit
against petitioner, alleging that it maintained a policy and practice
of discriminating against persons in the sale or rental of dwellings,
on account of religion and sex, in violation of the Fair Housing Act,
42 U.S.C. 3604.  /3/ Pet. App. A7.

   The parties filed cross-motions for summary judgment.  The district
court initially declined to grant summary judgment on the sex
discrimination claim or the claim that Mrs. Gualtieri was denied
membership in retaliation for complaining about discrimination.  As to
those claims, the court found that material facts were in dispute.  As
to the religious discrimination claim, however, the court concluded
that petitioner was exempt from the Fair Housing Act under both the
religious organization and private club exemptions of Section 807, 42
U.S.C. 3607.  /4/ Pet. App. A29-A39.  The court held that, although
the Club is not itself a religious organization, it is controlled by
the Archdiocese of Philadelphia "(a)s a practical matter." /5/ Id. at
A36.  In addition, the court held that petitioner met the private club
exemption because it is private and provides "lodgings" "incident to"
its primary purpose.  Id. at A36-A38.  Accordingly, the court granted
the petitioner's motion for summary judgment on the religious
discrimination claim.  Id. at A39.

   The United States filed a motion for reconsideration noting that
the private club exemption, if it applies, exempts the Club from
claims of sex discrimination as well as religious discrimination.
Pet. App. A7.  Upon reconsideration, the district court entered
judgment for the petitioner.  Id. at A7, A40.

   4. The court of appeals reversed and remanded.  Pet. App. A2-A28.
As an initial matter, the court held that the bungalows are
"dwellings" within the meaning of the Act.  Id. at A8-A11.  The Act
defines "dwelling" as "any building, structure, or portion thereof
which is occupied as, or designed or intended for occupancy as, a
residence." 42 U.S.C. 3602(b).  The court reasoned that, because
annual members inhabit their bungalows for a significant period of
time, they fall within the ordinary meaning of "residence." Pet. App.
A10-A11.  The court rejected the contention that the Fair Housing Act
applies only to year-round residences.  Id. at A11.

   The court concluded that petitioner did not meet the religious
organization exemption.  Pet. App. A12-A16.  The court observed that
"defendant does not dispute that it is not itself a 'religious
organization.'" Id. at A12.  Thus, the relevant question is whether
petitioner is "operated, supervised or controlled by or in conjunction
with" a religious organization.  Id. at A12-A13 (quoting 42 U.S.C.
3607(a)).  The court held that petitioner had not shown that it was
controlled by or operated "in conjunction with" the Catholic Church.
Pet. App. A14-A15.  To meet this standard, the court said,

      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.

Id. at A15-A16.

   The court also held that petitioner did not qualify for the private
club exemption.  Pet. App. A16-A20.  The court concluded that
petitioner did not provide "lodgings" within the meaning of the
exemption because the bungalows are used as residences, not temporary
accommodations.  Id. at A18-A19.  Moreover, petitioner does not
qualify for this exemption because it applies only to the "rental or
occupancy" of lodgings, not to their sale.  Id. at A19-A20.

   The court of appeals declined to address petitioner's arguments
that application of the Fair Housing Act to the Club violated the Free
Exercise and Establishment Clauses of the First Amendment and Club
members' First Amendment associational rights.  The court explained
that it "preferr(ed) to have the district court consider (these
arguments) in the first instance." Pet. App. A20.

   Judge Mansmann dissented.  Pet. App. A21-A28.  She concluded that
the Club met the Act's religious organization exemption.  In Judge
Mansmann's view, neither control nor mutuality determines whether an
orgainzation falls within the exemption.  She concluded that the
significant connections between petitioner and the Church are
sufficient to bring it within the exemption.  Id. at A25-A26.  In
addition, she concluded that petitioner met the mutuality standard.
Id. at A26-A28.

                               ARGUMENT

   1. Petitioner contends (Pet. 11-18) that this Court should grant
certiorari to consider the First Amendment issues raised by
application of the Fair Housing Act to the Club.  Review of any
constitutional issues that may be presented by this case would be
premature.  Not only is the court of appeals' decision interlocutory,
but neither the court of appeals nor the district court has yet
addressed the merits of petitioner's constitutional arguments.  If, on
remand, the district court finds that the Club has violated the Act,
and that application of the Act to the Club does not violate the First
Amendment, petitioner will have an opportunity to seek review of the
constitutional issues, including, if warranted, review by this Court.
Consequently, there is no reason for the Court to depart from its
usual practice of declining to review interlocutory decisions, see,
e.g., Brotherhood of Locomotive Firemen v. Bangor & Aroostock R.R.,
389 U.S. 327, 328 (1967);  Hamilton-Brown Shoe Co. v. Wolf Bros. &
Co., 240 U.S. 251, 258 (1916), and particularly of declining to review
questions that have not been addressed by the courts below.  See,
e.g., Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 697 (1984);
Duignan v. United States, 274 U.S. 195, 200 (1927).

   In any event, petitioner's First Amendment claims are unpersuasive.
 Petitioner contends (Pet. 11-14) that application of the Act to the
Club would violate the members' right of expressive association by
interfering with the Club's "genuine associational purpose (of)
religious expression." Pet. 14.  But there is no evidence that
permitting non-Catholics to own bungalows would significantly
interfere with the ability of Club members to engage in group efforts
in pursuit of their religion.  Moreover, the government's interest in
eradicating discrimination in housing, which is compelling and
unrelated to the suppression of expressive activity, outweighs any
incidental burden that permitting non-Catholics to own bungalows may
have on members' associational rights.  See generally Board of
Directors of Rotary Int'l v. Rotary Club, 481 U.S. 537 (1987);
Roberts v. United States Jaycees, 468 U.S. 609 (1984).

   Petitioner also contends (Pet. 14-17) that application of the Act
to the Club would violate the Free Exercise Clause.  As the Court has
recently made clear, however, "the right of free exercise does not
relieve an individual of the obligation to comply with a 'valid and
neutral law of general applicability on the ground that the law
proscribes (or prescribes) conduct that his religion prescribes (or
proscribes).'" Employment Div., Dep't of Human Resources v. Smith, 110
S. Ct. 1595, 1600 (1990).  Petitioner fails to cite Smith.  And even
prior to Smith, it was clear that the policy of the Fair Housing Act
-- to provide opportunities for home ownership to all persons, without
regard to religion -- does not violate the Free Exercise Clause.  Cf.
Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439, 450
(1988) (rejecting contention that "incidental effects of government
programs, which may make it more difficult to practice certain
religions but which have no tendency to coerce individuals into acting
contrary to their religious beliefs, require government to bring
forward a compelling justification for its otherwise lawful actions").

   Finally, petitioner contends (Pet. 17-18) that application of the
Act to the Club would violate the Establishment Clause by requiring
excessive government entanglement with religion.  The Court has
recognized that "routine regulatory interaction which involves no
inquiries into religious doctrine * * *, no delegation of state power
to a religious body * * *, and no 'detailed monitoring and close
administrative contact' between secular and religious bodies * * *
does not of itself violate the nonentanglement command." Hernandez v.
CIR, 490 U.S. 680, 696-697 (1989).  See also Jimmy Swaggart Ministries
v. Board of Equalization, 110 S. Ct. 688 (1990);  Tony & Susan Alamo
Foundation v. Secretary of Labor, 471 U.S. 290 (1985).  Moreover, the
courts of appeals have held that application of Title VII and related
employment discrimination laws to religious organizations does not
result in excessive entanglement.  See, e.g., EEOC v. Fremont
Christian School, 781 F.2d 1362, 1369-1370 (9th Cir. 1986);  EEOC v.
Pacific Press Publishing Ass'n, 676 F.2d 1272, 1281-1282 (9th Cir.
1982);  EEOC v. Mississippi College, 626 F.2d 477, 486-488 (5th Cir.
1980), cert. denied, 453 U.S. 912 (1981).  There is no evidence that
application of the Fair Housing Act to the Club would result in the
kind of inquiry into religious doctrine or detailed monitoring that
might violate the Establishment Clause.

   2. Petitioner also contends (Pet. 19-25) that the Club is exempt
from the anti-discrimination provisions of the Fair Housing Act.  The
court of appeals' decision to the contrary is correct and does not
conflict with any decision of this Court or any other court of
appeals.  Indeed, this is the first reported decision of a court of
appeals to consider the application of either the religious
organization exemption or the private club exemption.  /6/ Thus,
further review is not warranted.

   a. The court of appeals correctly concluded that petitioner does
not fall within the religious organization exemption because it is not
"operated, supervised or controlled by or in conjunction with a
religious organization, association, or society." /7/ 42 U.S.C.
3607(a).  The court of appeals' conclusion that the religious
organization exemption contemplates a "mutual relationship" between
the religious organization and the other organization is supported by
the language of the exemption, its legislative history, and common
sense.  "Conjunction" means the "the state of being conjoined";
"conjoin," in turn, means "to join together (as separate entities) for
a common purpose." Webster's Ninth New Collegiate Dictionary 277
(1984).  Thus, the court of appeals was correct that "conjunction"
implies a mutual relationship.  In addition, the legislative history
indicates that Congress's intention was to exempt religious
institutions, such as churches and the various agencies, departments,
and organizations under their control.  /8/ An organization cannot
exempt itself from the Fair Housing Act by unilaterally deeming itself
to be, or conducting itself as if it were, connected to or affiliated
with a religious organization.  /9/

   The court of appeals' conclusion that the Club lacked the requisite
relationship with the Roman Catholic Church to qualify for the
exemption is fact-bound and, in any event, correct.  There is no
formal or legal relationship between the Club and the Church or any
Catholic umbrella organization.  The Church neither mandated the
formation of the Club nor required it to restrict its membership to
Catholics.  The Club's affairs are controlled by its Board of
Governors;  Club documents are not submitted to the Church for review
or approval.  Although the Church permits religious services to be
conducted on the premises and provides a priest for this purpose, that
is not sufficient to give the Church control over the Club.  If the
Church rescinded the privilege of conducting masses on the premises,
the Club would continue as a recreational homeowners' association.
/10/

   b. The court of appeals was also correct in holding that petitioner
falls outside the private club exemption.  That exemption applies only
to the "rental or occupancy" of "lodgings." Petitioner's bungalows are
sold rather than rented, and they are "dwellings" rather than
temporary lodgings.

   Congress deliberately deleted the word "sale" from the private club
exemption.  /11/ As enacted, the exemption applies only to the "rental
or occupancy" of otherwise qualifying lodging.  Consequently, the
court of appeals was correct in concluding that petitioner's "policy
and practice of discriminating against persons in the sale of
bungalows falls outside the plain language of the private club
exemption." Pet. App. A19-A20.  Petitioner's suggestion (Pet. 24-25)
that it restricts only the rental and occupancy of bungalows is simply
wrong.  Mrs. Gualtieri did not want simply to rent or occupy a
bungalow, she wanted to purchase her family's property interest in the
bungalow.  See Pet. App. A6.  This case arose because petitioner
refused to permit that sale.

   In addition, the court of appeals was correct in drawing a
distinction between residential "dwellings" and temporary "lodgings,"
and in concluding that petitioner's bungalows are dwellings rather
than lodgings.  The statute defines a "dwelling" as a building or
structure that is designed or intended to be a "residence." Section
802(b), 42 U.S.C. 3602(b).  Although the statute does not define
"lodging," the legislative history indicates that Congress substituted
the word "lodgings" for the word "dwellings" to narrow the private
club exemption.  See note 11 supra.  Congress's deletion of
residential structures from the proposed exemption suggests that it
intended to exempt only temporary or transient occupancy (i.e., in
lodgings), not occupancy intended to endure for some substantial
period of time (i.e., in a dwelling).  This reading of the statutory
language is reinforced by the fact that Congress eliminated the word
"sale" (which may apply to owner-occupied dwellings, but not to
lodgings) from the statute.  See ibid.  Because the bungalows serve as
Club members' primary residence during the summer, they are dwellings
and not lodgings.  /12/

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   JOHN R. DUNNE

      Assistant Attorney General

   DAVID K. FLYNN

   THOMAS E. CHANDLER

      Attorneys

   MAY 1991

   /1/ If petitioner's filing, which was styled a "Petition For
Reargument in Banc," is deemed to be a suggestion for panel rehearing,
it is out of time.  See Sup. Ct. R. 13.4;  Missouri v. Jenkins, 110 S.
Ct. 1651, 1660-1662 (1990).

   /2/ Prior to 1987, women were excluded from associate and social
memberships.  C.A. App. 421-422.

   /3/ Section 804(a) of the Fair Housing Act prohibits the refusal to
sell, rent, or otherwise make available dwellings on the basis of
religion or sex.  42 U.S.C. 3604(a).  Section 804(b) prohibits
discrimination in the terms, conditions, or privileges of the sale or
rental of dwellings on the basis of religion or sex.  42 U.S.C.
3604(b).  Section 804(c) prohibits making statements with respect to
the sale or rental of dwellings that indicate a preference,
limitation, or discrimination based on religion or sex.  42 U.S.C.
3604(c).

   /4/ Section 807 (renumbered without substantive change as Section
807(a), 42 U.S.C. 3607(a), by the Fair Housing Amendments Act of 1988,
Pub. L. No. 100-430, Section 6(d), 102 Stat. 1622-1623) provides:

      Nothing in this subchapter shall prohibit a religious
      organization, association, or society, or any nonprofit
      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.
      Nor shall anything in this subchapter prohibit a private club
      not in fact open to the 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.

   /5/ Contrary to petitioner's assertion (Pet. 7), the district court
did not hold that the Club was operated "in conjunction with" the
Roman Catholic Church.  Rather, the court stated that "the persons who
* * * have operated and controlled the club( ) have done so 'in
conjunction with' their continuing obligations as members of the Roman
Catholic faith." Pet. App. A36.

   /6/ In United States v. Hughes Memorial Home, 396 F. Supp. 544, 550
(W.D. Va. 1975), the court held that the religious organization
exemption was "inapplicable by its terms" to a private non-sectarian
children's home because it was not a religious organization and the
basis for discrimination was not religion.

   /7/ In its petition, petitioner contends (Pet. 19-20) that the Club
is a religious organization within the meaning of the Act.  Petitioner
abandoned this argument in the court of appeals.  See Pet. App. A12.
In any event, the district court was correct in concluding (id. at
A36) that petitioner is not a religious organization.  Cf. EEOC v.
Townley Engineering & Mfg. Co., 859 F.2d 610, 617-618 (9th Cir. 1988)
(Title VII's exemption for religious corporations and associations
applies to "only those institutions with extremely close ties to
organized religions * * *.  Churches, and entities similar to
churches, were the paradigm."), cert. denied, 489 U.S. 1077 (1989).

   /8/ The language of the religious organization exemption derives
from a February 6, 1968, fair housing bill that Senators Mondale and
Brooke introduced on the Senate floor.  114 Cong. Rec. 2270 (1968).
On February 28, 1968, Senator Dirksen introduced his own fair housing
bill "in the nature of a substitute." 114 Cong. Rec. 4570-4573 (1968).
 The Dirksen bill, with modifications, was enacted as the Fair Housing
Act;  the Act retained the religious organization exemption of the
Mondale-Brooke bill.  See generally Resident Advisory Board v. Rizzo,
564 F.2d 126, 147 n.29 (3d Cir. 1977), cert. denied, 435 U.S. 908
(1978).  A summary of Senator Mondale's proposal states that "(a)ll
housing other than exempted housing of religious institutions would be
covered," and that "religious institutions could continue to give
preference in housing to persons of their own religion." 114 Cong.
Rec. 2272 (1968).  In addition, Senator Scott, in discussing Senator
Mondale's proposal, stated that "(r)eligious institutions, or schools
and other agencies affiliated with them, may give preference in
housing to persons of their own religion despite the act." 114 Cong.
Rec. 3252 (1968).

   /9/ The court of appeals correctly rejected petitioner's argument
that the exemption should be read broadly.  See Pet. App. A14-A15.
Although the prohibitions of the Fair Housing Act are broad and
inclusive, the exemptions are narrow and limited.  See Trafficante v.
Metropolitan Life Ins. Co., 409 U.S. 205, 209 (1972) ("The language of
the Act is broad and inclusive.");  United States v. Hughes Memorial
Home, 396 F. Supp. 544, 550 (W.D. Va. 1975) ("Congress created a
carefully limited exemption for certain religious organizations.").

   /10/ If a church agreed to send a priest or minister to conduct
services at a local retirement community, that would not entitle the
community to discriminate on the basis of religion.

   /11/ The private club exemtion was introduced in Senator Dirksen's
amendment to his own substitute bill.  114 Cong. Rec. 4690 (1968);
see note 8, supra.  The original language of the exemption provided:

      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 (1968) (emphasis added).  Senator Kuchel
subsequently introduced an amendment, which was adopted, 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 (1968).  Senator Kuchel stated that
his amendment "seeks to tighten up the exemption" to "eliminate, for
example, the possibility of a developer attempting to discriminate in
the sale of tract homes by labeling the tract a private club." Ibid.
He added that "(w)e are dealing here with the rental of property --
that is to say, lodging in a bona fide private club." Ibid.

   /12/ Petitioner is not eligible for the private club exemption for
two additional reasons.  First, the bungalows are not offered as "an
incident to (the Club's) primary purpose or purposes," 42 U.S.C.
3607(a), because the primary purpose of the Club is to provide
owner-occupied seasonal dwellings for its members.  Second, petitioner
is not "a private club not in fact open to the public," ibid., because
it is not genuinely selective on a basis other than sex or religion.