Legal Update

Court Mulls Whether FHA Bars Community from Removing Resident's Mezuzah from Doorway

If you have rules that apply to everyone, can you ban residents from placing religious objects in common areas? That's among the issues currently pending before a federal appeals court.

The case involves a Chicago condo owner who accused the condo association of intentional religious discrimination and harassment by enforcing rules prohibiting residents from keeping items in common areas to repeatedly remove a religious object—a mezuzah—from her doorway. The resident, who is Jewish, alleged that she was required by her religious beliefs to affix a mezuzah (a small piece of parchment containing religious texts, which is rolled up and placed in a casing) to the hallway side of the doorpost of her unit. According to the resident, an observant Jew must have a mezuzah at every entrance, and that to forbid all mezuzot was to forbid all adherents to Judaism from living in the community.

(Sometime later, the condo board adopted a religious exemption to hallway rules and ordered its staff to leave mezuzot, crucifixes, and other religious items alone. Meanwhile, the state of Illinois and the city of Chicago each adopted laws barring condo associations from interfering with religious practices.)

In a decision issued last year, a three-judge panel voted two-to-one that the condo board was not liable for violating the FHA by enforcing its hallway rule to order removal of the mezuzah. The majority ruled that the FHA did not apply to alleged discrimination after the condo owner acquired possession of the unit.

Moreover, according to the court, the hallway rule was neutral with respect to religion—it applied equally to all religious—and secular—items in hallways. Rather, the court said that what the condo owner wanted was an accommodation—a religious exception to a neutral rule—and that although the FHA required accommodations of handicaps, it did not require communities to make exceptions to its rules to accommodate religious beliefs and practices [Bloch v. Frischholz, July 2008].

Court Reconsiders Ruling

Late last year, the court agreed to reconsider the ruling, this time by all members of the court.

The Justice Department became involved in the case earlier this year, arguing that the FHA clearly covers post-acquisition discrimination and that discriminating against residents in rules enforcement because of their religion would constitute religious discrimination in violation of the FHA. The department argued that whether the actions of the condominium board to remove the mezuzah were done because of the resident's religion, as alleged, was an issue that should have been allowed to be presented to a jury.

At press time, a decision by the court is still pending, according to Prof. F. Willis Caruso, one of the lead attorneys in the case.

EDITOR'S NOTE: For more information on the Bloch case and other Justice Department initiatives to protect religious freedom, visit the Justice Department's Web site, the First Freedom Project, at www.justice.gov/crt/religdisc/.