COLUMN: The Law in Real Life: Court Upholds Condo Board’s Removal of Mezuzah Despite Discriminatory Effect on Jewish Residents

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COLUMN: The Law in Real Life

by Linda Holmes, J.D.

Court Upholds Condo Board’s Removal of Mezuzah Despite Discriminatory Effect on Jewish Residents

Sept. 22, 2008

Lynne Bloch has lived in her Chicago condo with members of her family for more than 30 years. In fact, she’s on the condo board, which passed a regulation in 2001 informally called the “Hallway Rule.” The rule prohibits residents from placing “mats, boots, shoes, carts, or objects of any sort” in the hallways outside their doors. For three years, all was well, but in 2004, the rule set off a chain of events that landed Bloch and the condo board in front of the 7th U.S. Circuit Court of Appeals, which sided with the board. Now, Congress might take action, all to prevent condominium associations from interfering with the religious expression of residents.

Bloch and her family are observant Jews, and they keep a mezuzah affixed to the outside door frame of their home. A mezuzah is a carved case, a few inches long and maybe an inch wide (a pack of gum isn’t a bad point of reference, size-wise), that holds a small scroll. The mezuzah is not merely a nicety — the Bloch’s beliefs require them to post it at the threshold of their home.

In 2004, the board reinterpreted the Hallway Rule to prohibit the mezuzah and removed it. When the Blochs reposted it, it was again removed. This pattern was repeated a few times as the dispute grew heated.

After much wrangling, the board eventually changed the rule to exempt religious items like mezuzahs and crucifixes, but litigation persisted, with Bloch seeking both damages for the time the mezuzah was prohibited and injunctive relief to keep the board from ever taking similar action again.

She lost. The 7th Circuit panel split 2-1, with the majority concluding that the Blochs were looking for an accommodation in the form of a religious exception to a neutral rule. The court held that the failure to accommodate was not discrimination under the terms of the federal Fair Housing Act, given past cases that have distinguished between discrimination on one hand and failure to accommodate on the other. In apparent recognition of the bad result, Judge Frank Easterbrook wrote, “Our job is not to make the law the best it can be, but to enforce the law actually enacted.”

In response, Rep. Jerrold Nadler of New York introduced federal legislation last week that would specifically outlaw, under the Fair Housing Act, the establishment of a rule or policy that prohibits religious displays on any exterior part of a residence unless the rule is necessary for safety or to prevent damage.

That a member of Congress was sympathetic is not surprising; so was one of the 7th Circuit judges. In dissent, Judge Diane Wood rejected the majority’s “accommodation” framework, arguing that this was not a neutral rule to which the board chose not to make a religious exception; it was a rule that did not actually apply to the mezuzah (a tempting conclusion, since Bloch was on the boardwhen the rule was adopted and no one apparently believed it applied to her mezuzah for three years). He considered the decision to remove the mezuzah under the guise of the rule to be straightforward religious discrimination against the Blochs — or at least suggestive enough of it that the case could be tried.

Questionable Motives

It’s clear that everyone understood the “objects outside the door” provision not to apply to small objects attached to the outside of doors or door frames when the rule was passed because a separate provision prohibits “signs or nameplates” on the outside of doors. If the intention of the “objects outside the door” rule had been that it would cover a mezuzah, it would also clearly cover a sign or a nameplate on the outside of the door, and there would be no need for a special rule to that effect. The great distance between the obvious target of the Hallway Rule, which is clutter and obstruction, and its application to a tiny object that would undoubtedly not be noticed unless one was looking for it certainly makes it appear that this is more than a condo board refusing to make special exceptions for religious displays. The fact that one of the board’s forcible takedowns of the mezuzah took place while the family was absent for the father’s funeral, having left under the impression that there was an agreement with the board to allow it to remain at the door during the mourning period, makes the motives of the board seem suspect. It’s fairly clear that this is not dispassionate rule application; it is animus.

But the interesting question is whether this is religious animus (discrimination against Bloch because she is Jewish) or personal animus (spiteful treatment of Bloch based on the kinds of personal politics that sometimes exist among condo associations and their members). It’s impossible to know for sure, but the problem with a framework in which it is not discriminatory to apply “neutral” rules without “accommodation” is that it underestimates the cleverness of those who seek to discriminate. Both the majority opinion and the dissent discuss situations such as prohibiting ritual animal sacrifice across the board, knowing that only one religious group in the area practices it, and Judge Wood’s dissent raises the possibility of a “neutral” rule banning women from wearing headscarves in a building, knowing that the burden will fall almost entirely on members of one faith.

Discriminatory Interpretation of Facially Neutral Rule

Courts have recognized the difference between a truly neutral rule applied in a truly neutral fashion — prohibiting, for instance, sex with minors even if one’s religion allowed or even dictated it — and a rule that is facially neutral but is merely a pretext for discrimination: Imagine a law banning the consumption of wine on Sunday mornings.

What the court should have recognized here is that not only can a facially neutral rule be a pretext for discrimination but a particular interpretation of a rule, where the rule has a legitimate nondiscriminatory basis but the interpretation does not, also can be a pretext. A rule banning hallway clutter is neutral, and were there a religious group that felt the need to place a large chair in the hallway opposite the door, that would indeed raise the question of whether accommodation was required.

But here, a reinterpretation that suddenly applies an old rule in a new way, forcing rules about clutter to fit tiny, fixed objects like mezuzahs, is more akin to the hypothetical rule against headscarves. At the very least, the Blochs should have had a day in court to present the fairly damning evidence that hostility of some kind was driving the actions of the board. The case should have gone to trial, where the board could have tried to explain the neutral basis for taking advantage of a family’s absence during a funeral to remove a spiritually critical and logistically insignificant religious symbol that had remained, without incident, on the door of the home for decades.

Linda Holmes is a freelance writer in Washington, D.C. She previously practiced law in Minnesota, specializing in employment law and legislative drafting.

References
Bloch v. Frischholz, No. 06-3376 (7th Cir. July 10, 2008).

Employment Div. v. Smith
, 494 U.S. 872 (1990).
H.R. 6932 (110th Cong.).