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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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