The appellate court calendar happens to offer a good excuse for a bit more speculative Supreme Court talk in the area of religion law. Tomorrow, the entire 7th Circuit will rehear a dispute over the application of home association regulations. Lynne Bloch and her family were the objects of what seems to be pretty ghastly harassment by her Shoreline Towers Condominium Association over the mezuzah placed on their doorpost in accordance with Jewish custom, thanks to a policy disallowing "any items" in the hallway. The Association interpreted the policy to require the removal of the mezuzah. A panel of the 7th Circuit, by a 2-1 vote, rejected the Blochs' claim of discrimination under the Fair Housing Act, ruling that the "no items" rule is neutral with respect to religion, and that in either case the FHA does not apply to discrimination occurring after the sale.
The dissenting judge? Diane Wood, largely rumored to be on President Obama's short list to replace Justice Souter. Wood argued that the majority misunderstood the case to be a request for accommodation of the mezuzah when in fact it was "a straightforward claim of intentional discrimination based on their Jewish religion and ethnicity" with dangerous implications. In the dissent that appears to have inspired her 7th Circuit colleagues to want to hear the appeal en banc, she writes:
[I]n 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 constructive 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 Shoreline Towers. The Association might as well hang a sign outside saying “No observant Jews allowed.”
