When Lynne Bloch led her Shoreline Towers Condominium Association to institute a regulation outlawing all "objects of any sort" from the hallways of her building, she wasn't expecting that disputes three years later would lead to having her own mezuzah removed from the doorframe of her unit due to that rule. Like many observant Jews, the Blochs believe Scripture requires them to affix a mezuzah in the doorpost. They filed suit claiming discrimination under the Fair Housing Act seeking damages and an injunction. The Association has since added a religious exemption, and changes in both state and federal law now make returning to the blanket policy illegal, so the injunction issue is moot. But a 3-judge panel of the Seventh Circuit today ruled 2-1 that what she suffered at the time did not amount to discrimination under the law.
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. Several federal statutes require accommodation of religion. Title VII of the Civil Rights Act of 1964 does so for employment, the Religious Land Use and Institutionalized Persons Act does so for zoning and prisons, and the Religious Freedom Restoration Act does so for laws and practices of the federal government that substantially burden religion. But none of these laws applies to regulations adopted by private condo associations. 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.
