Saturday, September 20, 2008

Congress to address right to put up mezuzah in condo

The 7th Circuit recently ruled that a condo owner did not have the right to put up a mezuzah on his doorpost in the common space of the building (read here). Now the NY Sun's Josh Gerstein is reporting that Congress is looking into the issue (read here).

from Law Blog - WSJ.com : Mezuzah Ruckus Goes to Washington

Remember the mezuzah case that sparked such a ruckus in the Seventh Circuit? Judge Frank Easterbrook, in rejecting a family’s complaint over a condo association rule that prohibited “objects of any sort” from being placed in the hallways, wrote that the court “cannot create an accommodation requirement for religion (race, sex, and so on).”


Religion refresher:
Mezuzah means “door post” in Hebrew. It consists of a case in which a small hand-written scroll of parchment, called a klaf, is placed. The scroll contains the words of the “Shema Israel” (”Hear Israel”) — a passage from Deuteronomy in which God commands Jews to keep His words constantly in their minds and in their hearts.

The issues in the case could be taken up by Congress, reports the NY Sun’s Josh Gerstein. Under legislation introduced in Congress by Rep. Jerrold Nadler of New York, residents of condominiums and co-ops would be guaranteed the right to post religious displays, such as the mezuzahs, outside apartment doors.

“This legislation is a straightforward attempt to clarify the Fair Housing Act and prevent co-op and condo associations and landlords from interfering with residents’ free exercise of religion,” Nadler told the Sun in an e-mail. “If not creating a public nuisance, residents should clearly be allowed to affix crosses, mezuzahs, or other religious symbols to their doors, no matter where they live.”

The bill is reportedly being co-sponsored by two Republicans, Trent Franks of Arizona and Lamar Smith of Texas, and one Democrat, Robert Wexler for Florida.

The ruling from the 7th Circuit Court of Appeals is not binding in New York, Gerstein notes, but legal experts said there is no clear right to similar religious displays under state law.
Just to remind you of the outrageous language of the 7th Circuit decision:

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.”

In a sharply worded dissent, Judge Diane Wood pierced through Judge Easterbrook's ignorance of the importance of the mezuzah, and pointedly objected to the bigoted language used by the condo board in their court papers.

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.

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