Lynne Bloch and her family filed a suit against the condo association when a board rule that prohibited “mats, boots, shoes, carts or objects of any sort” from being placed in the hallways resulted in the association removing the Blochs’ mezuzah. By the time the Blochs filed, claiming violations of the Fair Housing Act, the association’s board had adopted a religious exception to the hallways rule and instructed custodial staff to leave mezuzot, crucifixes and other items of religious significance up.
Still, the Blochs demanded damages for distress they suffered in the interim, plus an inunction to prevent the association from returning to its old ways. A federal district court granted summary judgment to the association, and yesterday, the Seventh Circuit affirmed. Frank Easterbrook, writing for a 2-1 majority, wrote that “The hallway rule … is neutral with respect to religion. It bans photos of family vacations, political placards, for-sale notices, and Chicago Bears pennants.” (Here’s a report on the decision from the NY Sun’s Josh Gerstein.)
Judge Easterbrook said the Fair Housing Act requires accommodation for the handicapped, but outlaws only discrimination with regard to other protected groups. “We cannot create an accommodation requirement for religion (race, sex, and so on). Our job is not to make the law the best it can be, but to enforce the law actually enacted.”
In a dissent that’s nearly three times as long as the majority opinion, Judge Diane Wood said enforcement of the rule amounted to a “constructive eviction” of observant Jewish residents, as well as an effective bar on Jews moving into the housing complex.”The Association might as well hang a sign outside saying ‘No observant Jews allowed,’” she wrote.
Judge Wood also criticized the condo association for filing a brief that accused the plaintiffs of trying to get a “pound of flesh” from the group. She noted that the reference comes from Shakespeare’s “The Merchant of Venice” and pertains to the human collateral insisted upon by a nefarious Jewish moneylender, Shylock, who is later punished by being forced to convert to Christianity. “This is hardly the reference someone should choose who is trying to show that the stand-off … was not because of the Blochs’ religion, but rather in spite of it,” she wrote.