Wednesday, July 16, 2008

Hallways as religion free zones

If fascism still exists, I suspect that it is most often found in condominium associations.

Last week the Seventh Circuit decided a case called Block v. Frischholz. The case involved a Chicago condo association rule that prohibited "mats, boots, shoes, carts or objects of any sort” from being placed in the hallways. The rules also apparently prohibited signs or other objects on doorways.

The association applied the rule to prohibit mezuzot - small cases containing a parchment called a klaf on which is written the words of the “Shema Israel” (”Hear Israel”) — a scriptural passage that admonishes the faithful to love and to serve God and to keep His words upon their hearts and souls. Observant Jews place a mezuzah at entrances to their homes.

The condo association eventually created a religious exception to the rule and are now, in fact, required by Chicago's municipal code to do so. But the plaintiffs pressed ahead anyway, arguing that the rule violated the federal Fair Housing Act and seeking damages.

In a split decision, the Court found that the rule did not violate the Act because it was neutral with respect to religion. It applies generally to all signs and objects on doorways. Because, in the view of the majority, it was not targeted at religious observances, it did not constitute religious discrimination.

Although it was not a constitutional case, the Court interpreted the Fair Housing Act in the same way as the Supreme Court has interpreted the Free Exercise Clause. Accommodations and exceptions for religious practice are generally not required. (Some federal anti-discrimination laws expressly require accommodation for religion but not the Fair Housing Act.) A common justification for this approach is that, given the diversity of religious practices, the courts would be overcome with claims for exceptions from all sorts of laws. (NB: The Wisconsin Supreme Court has interpreted our state constitutional free exercise guarantee to require more substantial justification for the refusal to grant exemptions for laws burdening religious practices.)

Of course, upholding neutral rules of general applicability permits substantial burdens on religious practices and those burdens are likely to fall on religous minorities. In her dissent, Judge Wood argued that the original rule would constructively evict observant Jews. Accommodating them would involve little burden. A mezuzah is a very small thing. Years ago, when I bought my first house in Whitefish Bay, I noticed - sometime after we moved in - a mezuzah on the entrance to the kitchen. It probably wasn't placed there by the previous owners - they weren't Jewish - so I suspect it had been their for years, largely or completely unnoticed.

When I learned what it was I left it there. It seemed like a good thing to have. I sold the house in 1989. I wonder if its still there. I hope so.

Judge Wood chided, unfairly I think, the lawyers for the condo association for criticizing the plaintiffs for seeking damages after the rule had been changed to permit mezuzot by accusing them of wanting their "pound of flesh." The origin of that term is Shakespeare's Merchant of Venice and its anti-Semitic portrayal of Shylock. I doubt that the lawyers knew that.


Anonymous said...

Associations are a terrible evil among neighbors. They rob people of the joy and peace that should be expected in their home.

This is just one of many, many examples of what people are going through.

Anonymous said...

It is difficult to reason with someone who cannot (or will not) see the difference between boots and shoes placed in a hallway and a religious item placed on a door.