In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-3376
LYNNE BLOCH, HELEN BLOCH, and NATHAN BLOCH,
Plaintiffs-Appellants,
v.
EDWARD FRISCHHOLZ and SHORELINE TOWERS
CONDOMINIUM ASSOCIATION,
Defendants-Appellees.
____________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 05 C 5379—George W. Lindberg, Judge.
____________
ARGUED FEBRUARY 20, 2008—DECIDED JULY 10, 2008
____________
Before EASTERBROOK, Chief Judge, and BAUER and WOOD,
Circuit Judges.
EASTERBROOK, Chief Judge. In September 2001 the Shore-
line Towers Condominium Association adopted rules
for the hallways of its building at 6301 North Sheridan
Road in Chicago. The rules provide, among other things,
that “[m]ats, boots, shoes, carts or objects of any sort” may
not be placed outside owners’ doors. The rules also pro-
hibit signs on doors or in hallways. Lynne Bloch, who was
on the association’s board and chaired the committee that
2 No. 06-3376
devised these rules, did not imagine that they would affect
the mezuzah on the doorpost of her unit. For several
years they did not. But when the hallways were repainted
in 2004 all mezuzot and other religious signs and symbols
were removed. Bloch affixed another; the association
had it, too, removed, in reliance on the rules.
By the time Bloch and her family filed this suit under
sections 804 and 817 of the Fair Housing Act, 42 U.S.C.
§§ 3604, 3617, and one of the implementing regulations,
24 C.F.R. §100.400(c)(2), the association’s board had
adopted a religious exception to the hallway rules and
instructed the custodial staff to leave mezuzot, crucifixes,
and other items of religious significance in place. The
Blochs demanded damages for distress they had suffered
in the interim, plus an injunction to prevent the associa-
tion from returning to its old ways. The district court
granted summary judgment for the association and its
president, Edward Frischholz, relying on Halprin v.
Prairie Single Family Homes of Dearborn Park Association,
388 F.3d 327 (7th Cir. 2004).
We observed in Halprin that §804(b) forbids discrimina-
tion in the “terms, conditions, or privileges of sale or
rental of a dwelling” but does not address discrimination
after ownership has changed hands—and that §817, on
which the regulation rests, makes it unlawful to interfere
with a person in the enjoyment of rights under §804 (and
some other sections) but does not enlarge any of those
rights. This means, Halprin held, that religiously motivated
harassment of owners or tenants does not violate the Fair
Housing Act or its regulations. Conflicts among owners,
we concluded, must be addressed under state law (in-
cluding the law of property, contracts, and voluntary
associations, in addition to any state civil-rights laws).
No. 06-3376 3
Halprin allowed that religious discrimination or harass-
ment so severe that it amounts to constructive eviction
might be equated to making a dwelling unavailable on
religious grounds, and thus violate §804(b). See 388 F.3d
at 329. The Blochs contend that an observant Jew must
have a mezuzah at every entrance, and that to forbid all
mezuzot therefore is to forbid occupancy by all adherents
to Judaism. That is constructive eviction, the Blochs
maintain. To address this argument, we would need to
know whether the Blochs’ religious obligation can be met
only by a mezuzah on the hallway-facing side of each
doorpost; a mezuzah or other religious artifact attached
to the frame’s inner side, and thus not visible from the
hall unless the door was open, would not transgress the
association’s old rules.
Before we go further, a few words are in order on the
significance of the change that allows owners to fasten
mezuzot to the hall side of the door frames. At oral argu-
ment counsel for the Blochs told us that the goal of this
suit is prospective relief. That the association voluntarily
adopted a religious exception to its rules would not
make such a claim moot, for the board might abrogate
the exception. See United States v. W.T. Grant Co., 345
U.S. 629 (1953). But state and local laws have made it
impossible for the association to go back to the 2001
version. On December 14, 2005, Chicago enacted an
ordinance that denies a residential building authority to
prevent 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 necessary to “avoid
substantial damage to property or an undue hardship to
other unit owners”. Chicago Municipal Code 5-8-030. And
4 No. 06-3376
as of January 1, 2007, a state law, 765 ILCS 605/18.4(h),
requires every condo association to establish a “reasonable
accommodation for religious practices, including the
attachment of religiously mandated objects to the front-
door area of a condominium unit.” So defendants can-
not restore the rule to which plaintiffs object. This, coupled
with counsel’s statement at oral argument that plaintiffs’
objective is an injunction, led us to ask for briefs on
mootness. Plaintiffs’ supplemental filing makes it clear
that, despite what counsel said at argument, their main
goal is damages (and, should they prevail, attorneys’ fees).
So the suit is not moot.
But it is unnecessary to consider whether a mezuzah on
the residential side of a doorpost would meet the require-
ments of plaintiffs’ faith. For the hallway rule, as adopted
in 2001 and as enforced in 2004, is neutral with respect to
religion. The rule says that no signs and no “objects of any
sort” may be placed on the hallway side of doors and door
frames. The association removed secular photos and
posters as well as Christmas ornaments, crucifixes, and
mezuzot. Generally applicable rules that do not refer to
religion differ from discrimination. See, e.g., Employment
Division v. Smith, 494 U.S. 872 (1990).
Plaintiffs do not contend that a seemingly neutral rule
was adopted to target an unwanted group, after the
fashion of Church of Lukumi Babalu Aye, Inc. v. Hialeah,
508 U.S. 520 (1993). The anti-sacrifice rule at issue in that
case was irrelevant to most inhabitants of the town but
effectively outlawed one unwelcome religious sect. The
hallway rule of the Shoreline Towers Condominium
Association, by contrast, potentially affects every owner. It
bans photos of family vacations, political placards, for-sale
notices, and Chicago Bears pennants. Lynne Bloch led the
No. 06-3376 5
committee that drafted this rule; she was not trying to
undermine her own religious practices. The objection to
this rule is not that it is designed to target a religion, but
that it lacks a religious proviso. The rule was adopted
not because of, but in spite of (or with indifference toward),
the consequences that plaintiffs decry. Cf. Personnel
Administrator of Massachusetts v. Feeney, 442 U.S. 256, 279
(1979).
What the Blochs want is a religious exception to a
neutral rule. That is to say, they seek an accommodation
of religion, which is exactly how the state law that we
have quoted expresses its requirements. The Fair Housing
Act requires accommodation—but only of handicaps. See
42 U.S.C. §3604(f)(3)(B). Several federal statutes require
accommodation of religion. Title VII of the Civil Rights
Act of 1964, 42 U.S.C. §2000e(j), does so for employ-
ment, see Trans World Airlines, Inc. v. Hardison, 432 U.S. 63
(1977), the Religious Land Use and Institutionalized
Persons Act, 42 U.S.C. §§ 2000cc to 2000cc–5, does so for
zoning and prisons, see Cutter v. Wilkinson, 544 U.S. 709
(2005), and the Religious Freedom Restoration Act, 42
U.S.C. §§ 2000bb to 2000bb–4 does so for laws and practices
of the federal government that substantially burden
religion. See Gonzales v. O Centro Espírita Beneficente União
do Vegetal, 546 U.S. 418 (2006). But none of these laws
applies to regulations adopted by private condo associa-
tions.
Plaintiffs would like us to treat failure to make an
accommodation as a form of discrimination. That was one
theme of Justice O’Connor’s separate opinion in Smith—but
the majority held that a neutral, exception-free rule is not
discriminatory and is compatible with the Constitution’s
free exercise clause. See also, e.g., Boerne v. Flores, 521 U.S.
6 No. 06-3376
507 (1997); University of Alabama v. Garrett, 531 U.S. 356
(2001). It would be especially inappropriate to adopt in
the name of the Fair Housing Act a principle that lack
of accommodation = discrimination, since the FHA itself
distinguishes the two. By requiring accommodation of
handicap but not race, sex, or religion, the statute’s struc-
ture tells us that the FHA uses the word “discriminate” to
mean something other than “failure to accommodate.”
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. See Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470
(2006).
Any requirement of religious accommodation creates
occasions for conflict. An entitlement of one group to
display its symbols may cause unease for other faiths that
abhor all icons. Within the bounds set by the Constitution’s
establishment clause, a legislature may authorize or re-
quire religious accommodation in housing, as Illinois
and Chicago have done. Deciding whether this is to be
done, and if so how far the obligation extends—the Reli-
gious Land Use and Institutionalized Persons Act stops
with land use and prisons—is a task for the legislature. The
Fair Housing Act requires accommodation of handicaps
but not religious beliefs and practices. No more need
be said to establish that the judgment must be
AFFIRMED.
No. 06-3376 7
WOOD, Circuit Judge, dissenting. The central question in
this case is whether the Shoreline Towers Condo Associa-
tion Board and its president Edward Frischholz inten-
tionally discriminated against plaintiffs Lynne, Helen, and
Nathan Bloch in violation of the Fair Housing Act (FHA),
42 U.S.C. § 3601 et seq., when the defendants abruptly
decided to reinterpret a condo rule on the topic of hall-
way clutter to prohibit the Blochs from fulfilling their
religious duty to place a small mezuzah on the outer
frame of their door. My colleagues recharacterize the
Blochs’ claim as one seeking some kind of accommodation
for a religious practice, and as so understood, they con-
clude that the district court was correct to grant summary
judgment in favor of the defendants. It is at that crucial
juncture that I part company with them. In my view, the
Blochs are raising a straightforward claim of intentional
discrimination based on their Jewish religion and ethnicity,
and they are entitled to reach a trier of fact. I therefore
dissent from the decision to affirm the district court’s
judgment.
I
It is important at the outset to review exactly what this
case is about. There is a helpful description of the mezuzah
in the amicus curiae brief filed by the Decalogue Society of
Lawyers in support of the Blochs’ claim, which I set forth
here for convenience:
The mezuzah, which translates to “doorpost,”
consists of a small piece of parchment rolled up and
placed into a small wooden, plastic, or metal cas-
ing. . . . They usually are no more than six inches
long, one inch deep, and one inch wide. The parch-
ment contains two biblical passages:
8 No. 06-3376
Hear, O Israel: the Lord is our God, the Lord is the
One and Only. You shall love the Lord, your God,
with all your heart, with all your soul, and with all
your resources. And these matters that I command
you today shall be upon your heart . . . . And write
them on the doorposts of your house and upon your
gates.
Deuteronomy 6:4-9 (The Torah, The Artscroll
Series/Stone Ed., Mesorah Publ’n Ltd. 1996), and
It will be that if you hearken to My commandments
that I command you today, to love the Lord, your
God, and to serve Him with all your heart and with
all your soul . . . . You shall place these words of
Mine upon your heart and upon your soul; . . . And
you shall write them on the doorposts of your house
and upon your gates . . . .
Deuteronomy 11:13-21 (The Torah, The Artscroll Se-
ries/Stone Ed., Mesorah Publ’n Ltd. 1996).
The mezuzah must be placed in a certain place, and many
observant Jews will touch it and then kiss their fingers
and pray as they enter and leave the home. (I attach a
picture of a mezuzah to this opinion, to show its general
size and placement.) At this stage of the litigation, no one
is disputing the fact that the mezuzah is a central part of
the Jewish religious tradition or the fact that the Blochs
genuinely believe that it is their religious duty to have a
mezuzah on their doorpost.
Until 2004, the Blochs had their mezuzot posted on their
door posts in accordance with Jewish law, and no one
seems to have objected. As the majority notes, however, in
2004 the Association adopted the position that the Blochs’
mezuzot were inconsistent with a rule of the Association.
No. 06-3376 9
It is worth looking at the history of the dispute that
ensued in some detail, as it explains why the Blochs be-
lieve that they have been the victims of intentional discrim-
ination. Because this case comes to us after a grant of
summary judgment, I present the facts in the light most
favorable to the Blochs.
The Blochs have lived for more than 30 years in three
units at Shoreline Towers, a condominium building located
on Chicago’s North Side. Lynne Bloch, the mother of
Helen and Nathan Bloch, has served on the condominium
board for over 15 years. In 2001, while she was on the
board, the rules and regulations committee revised the
rules and enacted the so-called Hallway Rule, which
reads as follows in its entirety:
Hallways
1. Mats, boots, shoes, carts or objects of any sort
are prohibited outside Unit entrance doors.
2. Signs or name plates must not be placed on
Unit doors.
3. Pets must not be left unattended in the hall.
Hallways should not be used as dog/pet runs.
4. No alterations to the common area hallways
are allowed.
5. No playing with or riding of bicycles, tricycles,
roller blades, etc. is allowed.
Hallway Rule 1 is the section at issue here. Until the spring
of 2004, no one interpreted the rule as forbidding the
placement of mezuzot on the exterior doorposts of unit
entrances.
In May 2004, the defendants began a project to renovate
the hallways in the building; this project included the
10 No. 06-3376
repainting of all walls and doors. They instructed the
residents to remove all objects from their doors in prepara-
tion for the work. The Blochs removed their mezuzot in
compliance with this request, but after the work was
completed, they re-affixed the mezuzot to the exterior
doorposts of their unit entrances. It was only then that
defendants began removing and confiscating the mezuzot,
without notice to the Blochs and without their permission.
The defendants claimed that they were enforcing Hall-
way Rule 1, even though the rule had never before been
applied in that way. It had instead been applied as a
rule ensuring that clutter did not accumulate around the
doors of units; Hallway Rule 2 was the only rule address-
ing items affixed to doors, and it obviously prohibited
only signs or name plates, not mezuzot. The Blochs ob-
jected and furnished information to the condominium
association explaining the religious signficance of the
mezuzah. Their efforts were unavailing: between May 2004
and September 2005, the building maintenance staff
repeatedly confiscated the Blochs’ mezuzot. At one point,
the Blochs were told that if they put up a mezuzah again,
they would be fined.
Perhaps the worst episode, and one that gives rise to a
strong inference of anti-Semitic animus, occurred while the
Blochs were mourning the death of Dr. Marvin Bloch,
Lynne’s husband and Helen and Nathan’s father. In
preparation for Shiva, the seven-day mourning period
specified by Jewish law, see http://www.aish.com/
literacy/lifecycle/the_Stages_of_Jewish_Mourning.asp
(visited June 23, 2008), the Blochs’ attorney wrote a letter to
the condo board requesting that their mezuzah be allowed
to remain during the Shiva. In the letter, the attorney
referred to an agreement between the Blochs and the condo
No. 06-3376 11
that would have permitted this limited display. Rather
than complying with their request, however, the defen-
dants waited until the family literally was attending
Dr. Bloch’s funeral and then removed the mezuzot
while everyone was away. When the Blochs returned
home with the funeral guests, including a rabbi, they
were horrified to discover that the mezuzot were once
again missing.
Another resident of Shoreline Towers, Debra Gassman,
was also an observant Jew who described how “her life
was turned upside down one fateful summer evening”
when “she returned home to her Chicago condominium
to find her mezuza [sic] missing from the doorpost.” See
Ruth Eglash, The Case of the Confiscated Mezuzah, The
Jerusalem Post, June 8, 2006. Gassman, who also sued the
same defendants, see Gassman v. Frischolz et al., No. 05 C
5377 (N.D. Ill.), on appeal, No. 07-2213 (7th Cir.), first
thought that she had been the victim of a hate crime.
Stunned to find out that the mezuzah had been lifted at the
orders of the condominium board itself, Gassman con-
cluded that she had essentially been evicted from her
home. In December 2005, she made aliyah (returning to
make Israel her home, see http://www.aliyah.org (visited
June 23, 2008)), but continued to pursue her lawsuit.
(Proceedings in this court have been suspended pending
the outcome of the Blochs’ case.)
In September 2004, Lynne offered a proposal to the
condo board to amend Hallway Rule 1 to specify that
mezuzot could be posted on the exterior doorframes of
unit entrances. The board refused. As a result of several
later developments, most of which occurred while this
litigation was pending, the case is now solely one for
money damages, as my colleagues note. After the district
12 No. 06-3376
court ordered the adoption of an amended hallway rule
pending the litigation, the City of Chicago amended
its code to prohibit:
interfere[nce] with the religious observances or prac-
tices of any lessee or condominium or cooperative
unit owner, by restricting or prohibiting such persons
from placing or affixing a religious sign, symbol or
relic on the door, door post or entrance of an individ-
ual apartment, condominium or cooperative housing
unit owned or leased by such person . . . .
Municipal Code of Chicago, § 5-8-030 (enacted December
14, 2005). To similar effect, the General Assembly of Illinois
enacted a new law amending the Condominum Property
Act, so that it now specifies that:
no rule or regulation may impair any rights guaranteed
by the First Amendment to the Constitution of the
United States or Section 4 of Article I of the Illinois
Constitution including, but not limited to, the free
exercise of religion, nor may any rules or regulations
conflict with the provisions of this Act or the condo-
minium instruments. No rule or regulation shall
prohibit any reasonable accommodation for religious
practices, including the attachment of religiously
mandated objects to the front-door area of a condomin-
ium unit.
765 ILCS 605/18.4(h) (effective January 1, 2007).
At oral argument, the panel requested supplemental
briefs discussing the question whether these new laws
rendered the Blochs’ case moot. Our concerns were height-
ened by the impression that the Blochs’ lawyer left with us
that the case was only about injunctive relief. A close look
at the pleadings, however, reveals that this is not so. Both
No. 06-3376 13
in the papers filed with the district court and those filed
here, the Blochs have maintained all along that they are
seeking damages for the pain, humiliation, and distress
they suffered during the long period of contention.
I therefore agree with the majority that the request for
damages is enough to save the case from mootness. I feel
compelled to add that there is nothing either surprising or
wrong (contrary to many statements in the defendants’
supplemental brief) about the fact that the Blochs initially
sought both kinds of relief. Indeed, especially given the
fact that the question in this case is whether a trier of
fact could conclude that the defendants were inten-
tionally discriminating against the Blochs, it was
shocking to read at the end of their supplemental brief
that “[t]hroughout this matter, Plaintiffs have been trying
to get their ‘pound of flesh’ from Defendants due to
personal animosity between Lynne and Frischholz.”
Perhaps the defendants have not read Shakespeare’s
Merchant of Venice lately and thus failed to recall that the
play is about a bitter Jewish moneylender, Shylock, who
agreed to loan funds to a man he loathed (Antonio—who
spit on him because he was Jewish) only upon a promise
that if the loan was not paid in time, Shylock would be
entitled to carve a pound of flesh from Antonio. At the end
of the play, after the disguised Portia defeats the contract
by pointing out that Shylock is not entitled to shed any
blood while he takes his pound of flesh, Shylock is pun-
ished by losing half of his lands and being forced to
convert to Christianity. This is hardly the reference some-
one should choose who is trying to show that the stand-off
about Hallway Rule 1 was not because of the Blochs’ reli-
gion, but rather in spite of it. See ante at 5, citing Personnel
Administrator of Massachusetts v. Feeney, 442 U.S. 256, 279
(1979).
14 No. 06-3376
II
The Blochs are pursuing on appeal four legal theories in
support of their claim to relief. (They also raised supple-
mental state-law arguments, but the district court declined
to exercise its supplemental jurisdiction under 28 U.S.C.
§ 1367 after it dismissed the federal-law theories. If we
were remanding this case, as I believe we should be, those
state-law counts should be reinstated as well. I do not
discuss them further here.) Three of the federal theories
rest on the Fair Housing Act (FHA), §§ 3604(a), 3604(b),
and 3617; one relies on the Civil Rights Act, 42 U.S.C.
§ 1982. I begin with the FHA theories.
Section 3604(a) makes it unlawful “[t]o refuse to sell or
rent after the making of a bona fide offer, or to refuse to
negotiate for the sale or rental of, or otherwise make
unavailable or deny, a dwelling to any person because of
race, color, religion, sex, familial status, or national origin.”
Section 3604(b) then makes it unlawful “[t]o discriminate
against any person in the terms, conditions, or privileges
of sale or rental of a dwelling, or in the provision of
services or facilities in connection therewith, because of
race, color, religion, sex, familial status, or national origin.”
Finally, § 3617 makes it unlawful “to coerce, intimidate,
threaten, or interfere with any person in the exercise or
enjoyment of, or on account of his having exercised or
enjoyed, or on account of his having aided or encouraged
any other person in the exercise or enjoyment of, any
right granted or protected by section 3603, 3604, 3605, or
3606 of this title.” The primary authority from this court
construing §§ 3604 and 3617 is Halprin v. The Prairie Single
Family Homes of Dearborn Park Ass’n, 388 F.3d 327 (7th
Cir. 2004).
Halprin was another case that involved discrimination
on the basis of a homeowner’s Jewish religion and ethnic-
No. 06-3376 15
ity. Plaintiff Halprin complained that the president of his
homeowners’ association wrote anti-Semitic graffiti on a
wall of his property and committed other acts of vandalism
and harassment. The president also thwarted Halprin’s
efforts to complain at the board meetings. Although, as the
majority notes in its discussion of Halprin, we commented
that § 3604 “indicates concern with activities, such as
redlining, that prevent people from acquiring property,”
388 F.3d at 328, the opinion did not stop there. As a purely
semantic matter (not a bad way to construe a statute), we
acknowledged that “the statutory language might be
stretched far enough to reach a case of ‘constructive
eviction.’ ” Id. at 329. In general, we concluded, § 3604
is concerned with access to housing. Like the Blochs, the
plaintiffs in Halprin also raised a claim under § 3617, as
implemented by a regulation from the Department of
Housing and Urban Development (HUD), 24 C.F.R.
§ 100.400(c)(2). The regulation says, in pertinent part, that
“[c]onduct made unlawful under this section includes, but
is not limited to . . . [t]hreatening, intimidating or interfer-
ing with persons in their enjoyment of a dwelling because
of the race, color, religion, sex, handicap, familial status, or
national origin of such persons, or of visitors or associates
of such persons.” Halprin notes a tension between this
regulation and the language of § 3617, since § 3617 seems
to cover only interference with rights secured by other
provisions of the FHA, and § 3604 (according to Halprin)
extends only to claims related to access. In the Halprin
case itself, the court did not pursue that tension further
because it found that this point was forfeited, and so it
simply remanded the case to the district court for fur-
ther proceedings on the claim relying on the HUD regula-
tion. See also East-Miller v. Lake County Highway Dep’t, 421
F.3d 558, 562-64 (7th Cir. 2005).
16 No. 06-3376
Given the language in Halprin reserving the question
whether the HUD regulation creates an independent
right to be free from interference on the basis of religion
during the period of occupancy, I approach § 3604(a) as
if it is limited to cases in which availability or access to
housing is at issue. Even under that narrow view, the
Blochs should be permitted to go forward with their
case. The record contains substantial evidence that the
inability to place a mezuzah on the doorpost creates a
constructive eviction for observant Jewish residents.
There are letters from the Rabbinical Council of Chicago,
the Decalogue Society, and Rabbi Aron Wolf, who heads
up the Mezuzah Division of the Chicago Mitzvah Cam-
paign (see http://www.chicagomitzvahcampaign.com/
mezuzah.htm (last visited June 24, 2008)). All of these
witnesses stated that an observant Jew would be forced
to move if he or she was not allowed to affix a mezuzah.
The only reason the Blochs have not moved is because
an interim rule was adopted, and then reinforced by an
order from the district court, allowing them to maintain
their mezuzot during the pendency of this suit. Going
forward, the new Chicago ordinance and Illinois law
provide further protection for them. But Debra Gassman
did move because of the way that Hallway Rule 1 was
enforced. Thus, in a real sense, Hallway Rule 1 makes
condominium units at Shoreline Towers functionally
unavailable to observant Jews like the Blochs and, if it
could be enforced, the rule would effect their construc-
tive eviction. They are faced with a dilemma: a choice
between observing their religion as they believe the Torah
commands them to do and living in Shoreline Towers.
Moreover, Hallway Rule 1 operates exactly as a redlining
rule does with respect to the ability of the owner to sell to
observant Jews. No such person could buy a unit at
No. 06-3376 17
Shoreline Towers. The Association might as well hang a
sign outside saying “No observant Jews allowed.” From
that point of view, the rule falls squarely within the ambit
of § 3604(a), as construed in Halprin.
The Blochs’ case is also secure under the terms of
§ 3604(b), which focuses on discrimination against any
person in “the terms, conditions, or privileges of sale or
rental of a dwelling” on the ground, among other things,
of religion. (The defendants claim that the Blochs waived
this argument, but I do not read the record so narrowly.
First, there certainly is no express renunciation of any
such ground of recovery, and so the worst one could say
is that they forfeited the argument. Even that does not
square with the record: the Blochs did make allegations of
discrimination in connection with § 3604(b), and that is
enough in my view.) The language of § 3604(b) is broad,
referring to any “terms, conditions, or privileges of sale.”
Although it may be possible to interpret these words
restrictively to cover only pre-sale activities, nothing in
the statute compels such an interpretation. Tellingly,
HUD, which is the agency responsible for developing
regulations that implement the FHA, has adopted a
broader approach. HUD’s regulation extends the protec-
tions of § 3604(b) to “an owner, tenant or a person associ-
ated with him or her.” 24 C.F.R. § 100.65(b)(4). This was a
formal regulation of the type that is entitled to deference
under Chevron, USA v. Natural Resources Defense Council,
467 U.S. 837 (1984), assuming Chevron’s criteria are met.
The first step under Chevron is to ask whether Congress
spoke clearly to the issue at hand. Although the Associa-
tion argues that § 3604(b) is unambiguous, and can be read
only to apply to pre-acquisition acts, the Blochs point out
that one of the most obvious “privileges” of the purchase
18 No. 06-3376
of property is the right to live in it without being plagued
by discrimination. At least one district court judge has
taken the Blochs’ side, suggesting that this is a view that a
reasonable person may hold. See United States v. Koch, 352
F. Supp. 2d 970, 976-77 (D. Neb. 2004). Contrary to the
Association’s position, Halprin does not dispose of this
point; it did not focus specifically on § 3604(b), and inso-
far as it dealt with regulations, it reserved for another
day a more detailed examination. Granting, then, that
§ 3604(b) is ambiguous, we turn to Chevron’s second step,
under which we decide whether HUD’s interpretation of
the statute is reasonable. HUD’s approach is consistent
with the “generous construction” that the Supreme Court
gave to the statute in Trafficante v. Metropolitan Life Ins. Co.,
409 U.S. 205, 212 (1972), and it is the one that will
ensure that members of protected groups do not win the
battle (to purchase or rent housing) but lose the war (to
live in their new home free from invidious discrimination).
I would find, for these reasons, that 24 C.F.R. § 100.65(b)(4)
is a valid interpretation of § 3604(b), and that the only
remaining question for this part of the case is whether the
Blochs have presented enough evidence of discrimina-
tion or harassment based on the fact that they are Jewish
to survive summary judgment.
In this connection, the evidence of constructive evic-
tion, diminished opportunity to sell to prospective Jewish
purchasers, and harassment (including the cruel funeral
incident) is just as useful for this theory as it was for
§ 3604(a). The Association’s argument that its actions
against the Blochs’ mezuzot were isolated and innocuous
incidents is only a characterization of the facts that a
jury might accept, but that it might equally reject. There
was nothing “isolated” about its actions: once it decided
No. 06-3376 19
to reinterpret Hallway Rule 1 to address items on the
doorpost as well as “mats, boots, shoes, carts or objects of
any sort” placed on the floor of the hallway near the
door, Association personnel consistently removed the
mezuzot, despite the Blochs’ protests and Lynne’s efforts
to get the rule changed or at least briefly suspended dur-
ing Shiva. Nor, as I discuss in a moment, would a trier of
fact be compelled to find that the Association’s actions
were “innocuous” as opposed to intentionally discrimina-
tory.
The central reason why the majority has rejected the
Blochs’ claim is its conclusion that they are seeking some
kind of special religious accommodation to a facially
neutral rule, and that there is nothing in this record that
could support a finding that the Association’s actions
amounted to intentional discrimination against Jews. That
position is relevant to each of the three sections of the
FHA on which the Blochs rely: §§ 3604(a) and (b), which
I have already discussed, and 3617, which makes it unlaw-
ful to interfere with, intimidate, etc., any person in the
exercise of rights secured elsewhere in the FHA. It
is possible, as Halprin acknowledged, that § 3617 and its
implementing regulation, 24 C.F.R. § 100.400(c)(2), sup-
port a free-standing claim under the statute. Even if it
does not, however, I have explained why I would find
that rights secured by § 3604 are at stake in this case.
The majority’s assumption that this case is really about
accommodation is possible only if we improperly resolve
a disputed factual question against the Blochs on sum-
mary judgment. Whether Hallway Rule 1 is supposed to
include mezuzot is both a material question and one that
is fairly in dispute: both sides have marshaled reasonable
arguments for and against the proposition, using com-
20 No. 06-3376
mon canons of construction. The majority takes this
argument as concluded and characterizes Hallway Rule 1
as a facially neutral rule that includes mezuzot to which
the Blochs are seeking an exception. This record, how-
ever, is not so unequivocal that either we or the district
court can decide such a pivotal factual issue on sum-
mary judgment.
The majority contends, ante at 4, that the Blochs are not
arguing that a seemingly neutral rule was adopted to
target an unwanted group, as was the case in Church of
Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993). With
respect, and with one minor qualification, I cannot agree.
It is true that the original five-part Hallway Rule, which
was adopted in 2001 while Lynne Bloch was on the con-
dominium association’s board, was not adopted at that
time for this impermissible purpose. The whole point of
the Blochs’ case, however, is that the Association, under
the guise of “interpreting” the rule in 2004, transformed
it from a neutral one to one that was targeted exclusively
at observant Jewish residents. Just as the sacrifices pro-
scribed by the ordinance in Lukumi were irrelevant to
most inhabitants of the town but a vital part of the Santería
religion, so the placing of an object on the doorpost is
(as far as anything in this record shows) irrelevant to
practitioners of Christianity, Islam, Buddhism, Hinduism,
or any other religion, but it is a duty (a mitzvah) for Jews.
The majority argues that Hallway Rule 1 is neutral be-
cause it applied not only to mezuzot but also to a wide
variety of secular objects (photographs and posters) and
objects associated with other religions (crucifixes, Christ-
mas ornaments, and the like). Undoubtedly they are
relying on the rule announced in Employment Division v.
Smith, 494 U.S. 872 (1990), to the effect that the Free Exer-
No. 06-3376 21
cise Clause of the First Amendment is not violated by a
neutral state law that is not specifically directed at
the practitioners of a particular religion and is constitu-
tional as applied to others. But they are overlooking the
qualifications the Court noted to Smith’s rule. The Court
cautioned that there was “no contention that Oregon’s drug
law represents an attempt to regulate religious beliefs, the
communication of religious beliefs, or the raising of one’s
children in those beliefs . . . .” Id. at 882. These qualifica-
tions came to the fore in Lukumi. Justice Kennedy’s opinion
for the plurality discussed Smith at length and explained
why it did not control in Lukumi, while the concurring
opinion of Justice Scalia (the author of Smith) agreed that
the laws enacted by the city council in Lukumi were “laws
which, though neutral in their terms, through their design,
construction, or enforcement target the practices of a
particular religion for discriminatory treatment.” 508 U.S.
at 557. In my view, Justice Scalia’s language aptly describes
Hallway Rule 1. To the extent that the facts pertaining to
the “design, construction, or enforcement” of the law are in
dispute, we must of course view them in the light most
favorable to the Blochs.
It is thus neither helpful nor accurate to say that the
reinterpreted, 2004, version of Hallway Rule 1 is “neutral”
and that the Jewish residents are seeking a special ac-
commodation. The Hallway Rule falls outside of Smith
because it is not neutral once it is examined beyond its
face. Other methods of enforcing the Rule—such as the
regime that pertained up until 2004—would achieve the
same end without burdening legitimate religious interests.
Indeed, the direct regulation of materials on the fronts of
doors sufficed until 2004. Lukumi recognized, in the con-
text of the First Amendment, that “[f]acial neutrality is
22 No. 06-3376
not determinative. The Free Exercise Clause, like the
Establishment Clause, extends beyond facial discrimina-
tion. The Clause ‘forbids subtle departures from neutral-
ity’ . . . and ‘covert suppression of particular religious
beliefs.’ ” 508 U.S. at 534 (citations omitted). A trier of fact
could find that Hallway Rule 1 was immaterial to all other
residents, and that its sole force and purpose was to
discriminate against the Jewish owners. One could say
the same thing about a rule forbidding women to wear
headscarves in the common areas of the condominium: no
one but observant Islamic women would be under a
religious duty to do so, and so there would be a fair
inference that such a rule intentionally discriminates
against persons of one religion even though it appears
facially neutral.
III
The Blochs also relied on 42 U.S.C. § 1982, which pro-
vides that “[a]ll citizens of the United States shall have the
same right, in every State and Territory, as is enjoyed
by white citizens thereof to inherit, purchase, lease, sell,
hold, and convey real and personal property.” The Su-
preme Court has held that “Jews are not foreclosed from
stating a cause of action [under § 1982] against other
members of what today is considered to be part of the
Caucasian race.” Shaare Tefila Congregation v. Cobb, 481
U.S. 615, 618 (1987). That said, there is nothing in § 1982
that would call for a different result than the Blochs
would achieve under the FHA. They must prove inten-
tional discrimination either way, and so the right to relief
under § 1982 rises or falls with the FHA theories.
In my view, the Blochs presented ample evidence to
support the denial of the Association’s motion for sum-
No. 06-3376 23
mary judgment. Their theory under the FHA is a sound
one, and their evidence would support a finding of in-
tentional discrimination by the finder of fact. I would
therefore reverse and remand for further proceedings.
Picture of a Mezuzah
Source: Google Images
USCA-02-C-0072—7-10-08