Back in July 2008, I reported that the Seventh Circuit held that neither RLUIPA nor the Fair Housing Act applies to regulations adopted by a private condominium association that prohibits the posting of a mezuzah on a doorpost (click here). According to the latest issue of Religious Freedom in Focus (January/February 2009) published by the U.S. Department of Justice, the en banc United States Court of Appeals for the Seventh Circuit, has requested that the United States file a brief in the matter which they did on January 16 arguing that the court should reinstate a suit over a condominium board that barred a Jewish family from installing a mezuzah.
The following is reprinted from the DOJ newsletter:
In the suit, Bloch v. Frischholz, the family sued the condominium board for religious discrimination under the Fair Housing Act after the board repeatedly removed a mezuzah from the family’s front door. A federal trial court in Illinois dismissed the suit and a three-judge panel of the appeals court affirmed the trial court in July 2008. The Court of Appeals ordered the case to be reheard en banc, that is, before all of the judges of the appeals court.
A mezuzah is a small case containing a piece of parchment with a religious text on it that observant Jews affix to the inside of the doorposts of their homes. The Blochs, a Jewish family, had a mezuzah on the door frame of their condominium in Chicago for several years. Beginning in 2004, the condominium board began to interpret a rule barring “mats, boots, shoes, carts, or objects of any sort . . . outside Unit entrance door” to bar mezuzot. This rule had been in existence since 2001, but had never been applied to mezuzot. Relying on the rule, the Board had maintenance staff remove the Bloch’s mezuzah on several occasions and threatened them with a fine if they replaced it.
In 2005 the Blochs filed suit under the Fair Housing Act challenging the board’s actions to prevent them from keeping a mezuzah on their door frame. A federal trial court dismissed the suit, holding that the Fair Housing Act only applies to discrimination in the sale or rental of property, and does not apply to discrimination that occurs after the property has been acquired, such as discrimination by a condominium board in how a property is managed. The trial court also ruled that the Blochs had not shown intentional discrimination.
A panel of the United States Court of Appeals for the Seventh Circuit affirmed, 2-1, holding that the Fair Housing Act “does not address discrimination after ownership has changed hands.” The majority further held that since the condominium board’s rule against objects outside of owners’ units was neutral toward religion, that is, that it applied to secular as well as religious objects, even if the Fair Housing Act reached condominium board rules, there would be no violation here. The en banc, or entire, Court of Appeals ordered rehearing of the case, and requested the United States to file a brief setting forth its position on the issues involved in the case.
In its brief, the United States argues that the trial court and the panel majority erred in holding that the FHA did not apply to post-acquisition discrimination. The United States brief states that the text of the Fair Housing Act supports the conclusion that the Act applies to discrimination that occurs after sale or rental. The Fair Housing Act, the brief notes, includes a bar on discrimination in the provision of “services or facilities” in connection with the sale or rental of residential property. This provision “is fairly read to encompass activities and benefits that are ongoing in nature, such as use of common areas, maintenance, and rules enforcement.” Similarly, the United States contends that language in the Fair Housing Act barring discrimination in the “terms, conditions, or privileges of sale or rental” also applies post-acquisition. Department of Housing and Urban Development regulations also interpret the Fair Housing Act as barring post-acquisition discrimination, the brief notes.
Since post-acquisition religious discrimination is covered by the Fair Housing Act, the brief argues, the Court also must address whether removal of the mezuzah constituted a violation of the Act. While the Fair Housing Act does not contain a requirement of affirmative religious accommodation, as does Title VII, the brief argues that the Blochs presented evidence suggesting that the condominium board applied its rules to bar the Blochs’ mezuzah based on anti-Jewish animus. Discriminating against condominium owners in rules enforcement because of their religion would constitute religious discrimination in violation of the Fair Housing Act, the brief argues. Such evidence must be evaluated by a jury, and therefore dismissal by the court was inappropriate, the brief concludes.
The case is scheduled for argument on May 13.
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