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In Curto v. A Country Place Condominium Association, No. 18-1212 (3d Cir. Apr. 22, 2019), the Third Circuit held that the federal Fair Housing Act forbade a condominium association from enforcing a rule segregating use of its communal pool by sex. A Country Place, an adult (55+) community located in Lakewood, has a large and growing Orthodox Jewish population, and by 2016, approximately two-thirds of its residents were Orthodox. This was apparently simply due to market forces, however, and according to the court's opinion, the condominium association does not have a religious purpose. As is evident by the identity of the plaintiffs, it does not cater exclusively to the Orthodox Jewish community.

In order to comply with Orthodox religious norms, which prohibit men and women from seeing each other in public in bathing attire, the condominium association adopted a schedule of access to the communal pool that (after several revisions) provided for 56 hours of segregated hours (32.5 hours for men and 33.5 hours for women), along with 12 hours of integrated swimming, Sunday through Friday. The pool was available for integrated swimming all day (13 hours) on Saturday, since Orthodox residents would not go swimming on the Jewish Sabbath.

The district court granted summary judgment for the defendant condominium association, based on the facially troubling logic that “the gender segregated schedule applies to men and women equally” (an argument we had thought long discarded at least since Loving v. Virginia). The Court of Appeals, however, in a precedential opinion written by Judge Thomas L. Ambro and joined by Judges Stephanos Bibas and Julio Fuentes, reversed, and directed the entry of summary judgment for the plaintiffs.

The court noted that although the amount of segregated swimming time allocated to men and women was roughly equal, the allocation of favorable swimming times was “plainly unequal.” Women were able to swim for only 3.5 hours each week after 5:00 p.m. on weeknights, and men were assigned the entire period from 4:00 p.m. onward on Friday afternoons, since, according to the association's own representative, women are at home preparing for the Sabbath during that time. Women with regular-hour jobs thus had little access to the pool during the work week, and the court found that “the schedule appears to reflect particular assumptions about the roles of men and women.”

The majority opinion declined to reach the issue of whether a segregated swimming rule was per se violative of the Fair Housing Act, since the unequal allocation of favorable swimming times in a manner disfavoring women made reaching the question unnecessary. Although agreeing that it was unnecessary to reach the question, Judge Fuentes, in his concurring opinion, expressed skepticism that even a more balanced but still segregated schedule would pass muster. “Our jurisprudence makes clear that facial discrimination does not become lawful merely because its burdens are felt by members of both sexes.” We certainly agree with the Third Circuit's reasoning and result in this case.

We also think it was prudent for the Court not to reach out and announce a per se rule unnecessarily. It has long been established that gender classifications must be “free of fixed notions concerning the roles and abilities” of men and women, as the defendant all but conceded was the case here. But there are some circumstances, usually grounded in privacy or safety concerns, in which separate facilities based on gender may well be justified. Before attempting to craft language that defines those circumstances, however, it was the better part of judicial discretion to await a case that presents the issue directly.

We also do not wish to completely preclude the possibility that the FHA, perhaps read in connection with the Religious Freedom Restoration Act, might permit, in clearly defined and announced situations, a housing association to abide by a particular set of cultural or religious norms. But even if such an unusual situation is permitted, it would certainly require that any restrictions defining the community be explained beyond any reasonable risk of misunderstanding to any potential resident before committing to living under such conditions. Religious norms that otherwise violate anti-discrimination provisions of the FHA or other statutes cannot be imposed on existing residents after the fact to take advantage of changing market preferences, as apparently happened here.