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7th Circuit rules en banc on mezuzah case

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The full 7th Circuit Court of Appeals has ruled that condominium owners prevented from hanging religious objects on their home can in some cases sue their association under the Fair Housing Act for alleged religious and racial discrimination, after they've bought the residence and moved in.

Considering an Illinois-based case en banc, eight federal judges participated in the decision issued today in Lynne Bloch, et al. v. Edward Frischholz and Shoreline Towers Condominium Association, No. 06-3376.

The case may ultimately go to the Supreme Court of the United States for consideration and could have widespread impact on condo and homeowner associations nationally as far as what rules can dictate to owners.

At issue in the case is a mezuzah, a small scroll held in a case that's part of Jewish religion tradition and must be hung over doorways. The Shoreline Towers Condominium Association repeatedly removed that mezuzah from the front door of Chicago condo owner Lynne Bloch, saying it violated a covenant banning any "mats, boots, shoes, carts, or objects of any sort" from being placed outside the unit entrance doors. Bloch, who'd displayed the mezuzah on condo doorposts for about three decades without objection, finally sued on the grounds she was a victim of religious discrimination.

U.S. District Judge George W. Lindberg threw out the case in August 2006 by granting summary judgment, and a 7th Circuit panel affirmed his decision in July 2008. In that initial appellate ruling, Chief Judge Frank Easterbrook and Senior Judge William Bauer found the rule to be "neutral" and non-discriminatory and one that "potentially affects every owner" without regard to religion.

"It bans photos of family vacations, political placards, for-sale notices and Chicago Bears pennants," the chief judge wrote.

However, Judge Diane P. Wood dissented, saying the rule could be seen as a violation of the federal housing law because observant Jews would be unable to live in a condo with no mezuzah.

Relying on precedent reached in Halprin v. Prairie Single Family Homes of Dearborn Park Ass'n, 388 F.3d 327 (7th Cir. 2004), the appellate panel precluded any of those specific FHA claims because the federal statute applied only to discrimination at the time of sale, not post-acquisition. The two-judge majority found the Shoreline Towers rules were neutrally adopted and enforced.

"Though the FHA permits accommodations for disabilities, it is silent as to religious accommodations," the court wrote. "Because we cannot create what Congress left out, the majority concluded the Blochs' discrimination claims must fail, regardless of the theory."

But in taking the important question to the full court, the en banc ruling found differently in a 35-page opinion. Indianapolis-based Judge John Tinder authored the decision, with Chief Judge Easterbrook and Judges Bauer, Wood, Richard Posner, Michael Kanne, Terry Evans, Diane Sykes participating; Judges Joel Flaum, Ilana Rovner, and Ann Williams didn't take part.

The court reversed the District Court on three of the federal claims and affirmed on the Section 3604 claim about the Blochs not being able to sell to others with the same religious backgrounds.

Determining that the Blochs purchased dwellings subject to the covenants, which restrict the buyer's rights in the future, the court found that the FHA Section 3604(b) prohibits the association from discriminating against the Blochs through its enforcement of facially-neutral rules - that issue and others can proceed to trial to determine if sufficient evidence exists.

"Discriminatory intent is the pivotal element in this case," Judge Tinder wrote, noting the Blochs met the first two elements in that they're Jewish and lived in the condo units and the defendants engaged in a pattern of conduct of repeatedly taking down the mezuzah. "This conduct would constitute 'interference' if it was invidiously motivated - that is, if it was intentionally discriminatory."

Judge Tinder wrote also that the record contains sufficient evidence that genuine issues exist for trial on intentional discrimination. He cited instances of anti-Semitic motives and behavior in enforcing the rules through the years.

"It is the combination of all these facts and inferences, rather than any single one, that pushes this case beyond summary judgment," he wrote. "A trier of fact could conclude that the Association's reinterpretation of the Hallway Rule and clearing of all objects from doorposts was intended to target the only group of residents for which the prohibited practice was religiously required."

The case is remanded to the trial level for further proceedings on those issues, as well as other state claims that had been dismissed at the District level.

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  1. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  2. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  3. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

  4. When I hear 'Juvenile Lawyer' I think of an attorney helping a high school aged kid through the court system for a poor decision; like smashing mailboxes. Thank you for opening up my eyes to the bigger picture of the need for juvenile attorneys. It made me sad, but also fascinated, when it was explained, in the sixth paragraph, that parents making poor decisions (such as drug abuse) can cause situations where children need legal representation and aid from a lawyer.

  5. Some in the Hoosier legal elite consider this prayer recommended by the AG seditious, not to mention the Saint who pledged loyalty to God over King and went to the axe for so doing: "Thomas More, counselor of law and statesman of integrity, merry martyr and most human of saints: Pray that, for the glory of God and in the pursuit of His justice, I may be trustworthy with confidences, keen in study, accurate in analysis, correct in conclusion, able in argument, loyal to clients, honest with all, courteous to adversaries, ever attentive to conscience. Sit with me at my desk and listen with me to my clients' tales. Read with me in my library and stand always beside me so that today I shall not, to win a point, lose my soul. Pray that my family may find in me what yours found in you: friendship and courage, cheerfulness and charity, diligence in duties, counsel in adversity, patience in pain—their good servant, and God's first. Amen."

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