Bloch v. Frischholz

533 F.3d 562, 2008 U.S. App. LEXIS 14576, 2008 WL 2685668
CourtCourt of Appeals for the Seventh Circuit
DecidedJuly 10, 2008
Docket06-3376
StatusPublished
Cited by6 cases

This text of 533 F.3d 562 (Bloch v. Frischholz) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bloch v. Frischholz, 533 F.3d 562, 2008 U.S. App. LEXIS 14576, 2008 WL 2685668 (7th Cir. 2008).

Opinions

EASTERBROOK, Chief Judge.

In September 2001 the Shoreline 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 prohibit signs on doors or in hallways. Lynne Bloch, who was on the association’s board and chaired the committee that 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 association 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 discrimination 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 [564]*564state law (including the law of property, contracts, and voluntary associations, in addition to any state civil-rights laws).

Halprin allowed that religious discrimination or harassment 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 argument 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, 73 S.Ct. 894, 97 L.Ed. 1303 (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 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 cannot 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 requirements 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, 110 S.Ct. 1595, 108 L.Ed.2d 876 (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, 113 S.Ct. 2217, 124 L.Ed.2d 472 (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 [565]*565of family vacations, political placards, for-sale notices, and Chicago Bears pennants. Lynne Bloch led the 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, 99 S.Ct. 2282, 60 L.Ed.2d 870 (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).

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Bluebook (online)
533 F.3d 562, 2008 U.S. App. LEXIS 14576, 2008 WL 2685668, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bloch-v-frischholz-ca7-2008.