Posted by: Patricia Salkin | July 21, 2008

7th Circuit Holds That Neither RLUIPA nor the Fair Housing Act Applies to Regulations Adopted by Private Condo Association Prohibiting Posting of Mezuzah on Doorpost

In September 2001 a condominium association adopted rules for the hallways that among other things, provides that “[m]ats, boots, shoes, carts or objects of any sort” are prohibited from being placed outside any owners’ doors. Signs on doors and in hallways were also prohibited.  In 2004, the hallways were repainted and all mezuzot and other religious signs and symbols were removed.  When Bloch replaced her mezuzah, the Association had it removed based on the rules.  By the time Bloch filed her lawsuit under the Fair Housing Act, the Association had adopted a religious exemption to the hallway rules and staff was instructed to leave mezuzot, crucifixes and other items of religious significance in place. Bloch continued the lawsuit anyway seeking both damages and an injunction to prevent the Association from returning to the former regulation.

The Seventh Circuit noted that their 2004 decision in Halprin v Prairie Single Family Homes of Dearborn, 388 F.3d 327, held that religiously motivated harassment of owners or tenants does not violate the Fair Housing Act or its regulations unless the religious discrimination is so severe that it amounts to constructive eviction, which would make the dwelling unavailable on religious grounds under sec. 804(b). Bloch maintained that observant Jews are required to have a mezuzah on their doorpost, and a rule prohibiting such amounts to constructive eviction.  However, the Bloch wanted, in part to prevent the Association from changing the rules again to prevent her once again from keeping the mezuzah on her doorpost.  The Court noted that since the Association changed the rules, the City of Chicago enacted an ordinance in December 2005 that prohibits a residential building authority from preventing any owner or lessee “from placing or affixing a religious sign, symbol or relic on the door, door post or entrance of an individual apartment, condominium or cooperative housing unit” unless required to “avoid substantial damage to property or an undue hardship to other unit owners.” Further, a State statute effective in January 2007 now requires every condo association to establish “reasonable accommodation for religious practices, including the attachment of religiously mandated objects to the front-door area of a condominium unit.” So, the Court held, while the injunction part of their suit is moot, the damages aspect is not.

The Court determined, however, that the original rule adopted by the Association was neutral with respect to religion. It applied to “objects of any sort” not just to religious objects.  Citing to Employment Division v. Smith, 494 U.S. 872 (1990), the Court said that “Generally applicable rules that do not refer to religion differ from discrimination.”  Here the Bloch was seeking a religious exception to a neutral rule.  The Court noted that neither the Fair Housing Act, the Civil Rights Act of 1964 nor the Religious Land Use and Institutionalized Persons Act applies to regulations adopted by private condo associations. Further, the Court said that it would be inappropriate to adopt a principle under the Fair Housing Act that equates lack of accommodation with discrimination, especially since the Act itself distinguishes these.   The Court noted that within the bounds of the Establishment Clause of the Constitution, legislatures may authorize or require religious accommodation in housing, and here, this is what the City of Chicago and the State of Illinois have done.  The Court concluded, “The Fair Housing Act requires accommodation of handicaps but not religious beliefs and practices.”      

Bloch v. Frischholz, 2008 WL 2685668 (C.A. 7th Cir.)(Ill. 7/10/2008 ).

The opinion can be accessed at:

Special thanks to Dwight Merriam, Esq. of Robison & Cole for bringing this case to my attention.

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