Published on: September 20, 2008
The English politician, Tony Benn, described war as “a failure of diplomacy.” The same might be said of legal battles between condominium owners and community association boards; a bit more diplomacy and a lot more common sense on both sides could probably avoid most of these encounters and community associations would be better off as a result. A recent decision by the Seventh Circuit Court of Appeals, resolving a dispute over the placement of religious symbols on exterior doorways, illustrates the point.
The litigation centered on a rule the Shoreline Towers Condominium in Chicago adopted in 2001, barring the placement of “mats, boots, shoes, carts or objects of any sort” outside owners’ doors. The purpose, board members said at the time, was to prevent clutter in the hallways. But five years later, a new board interpreted the rule to apply to any exterior decoration — an interpretation they enforced by removing all religious signs and symbols, including the mezuzahs on the doors of Jewish residents. The affected and infuriated owners included Lynne Bloch, who, ironically, had chaired the board committee that adopted the original rule. An increasingly bitter tug-of-war ensued, in which Bloch kept replacing her mezuzah and the board repeatedly ordered it removed, refusing even a request to leave it in place temporarily while Bloch’s family observed a period of mourning following her father’s death.
Bloch sued the board, claiming that the rule violated the anti-discrimination provisions of the Fair Housing Act. By the time the case was heard, the board had adopted a religious exception to the rule, allowing owners to display items of “religious significance.” But Bloch persisted, seeking both damages for the pain and suffering she said the rule had inflicted on her and her family and an injunction, prohibiting the board from restoring the restriction barring all exterior displays.
The District Court granted summary judgment to the association, agreeing that Bloch’s complaint was moot because the restriction to which she objected no longer existed. The appeals court agreed but went further, ruling that the Fair Housing Act did not apply. Citing the precedent established in another Seventh Circuit case, the court said the federal law bars discrimination in the purchase and use of housing, but does not cover post-purchase claims, which must be brought under state property, civil rights and contract laws. For the Fair Housing Act to apply, the court said, the religiously-motivated discrimination Bloch alleged would have to be so severe that it amounted to a “constructive eviction.”
That is essentially what Bloch contended – that the ban on religious symbols made the units uninhabitable for observant Jews, who are required by their religion to place a mezuzah on the outside of their door. The injunction was needed, even though that restriction had been lifted, Bloch argued, to ensure that the board could not in the future restore a rule that would have the same discriminatory effect.
But the court noted that a municipal ordinance and a state law, both enacted since Bloch initiated her legal action (and in response to it), expressly prohibit condominium boards and landlords from barring religious displays. The ordinance makes it illegal to prevent owners 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”; the state law requires community associations to make a “reasonable accommodation” for religious practices, including the display of “religiously-mandated objects” on front doors.
Those measures eliminated the need for the future protection Bloch sought, the court said, leaving only one question for the Seventh Circuit to address: Whether the Fair Housing Act itself required a religious exception for the association’s rule. The court concluded that it did not, because the rule at issue was “neutral with respect to religion,” applying equally to all religious objects, not just to those related to a particular religion. “The rule was adopted not because of, but in spite of (or with indifference toward) the consequences that plaintiffs decry,” the court said.
Accommodation Not Required
The religious exception Bloch sought amounted to an accommodation, the court said, but the Fair Housing Act requires accommodations only for disabilities, not for religious practices. “Plaintiffs would like us to treat the failure to make an accommodation as a form of discrimination,” the court continued. “But the [U.S. Supreme Court] has held that a neutral, exception-free rule is not discriminatory and is compatible with the Constitution’s free-exercise clause….It would be especially inappropriate to adopt in the name of the Fair Housing Act, a principle that lack of accommodation [equals] discrimination,” the court concluded, “since the FHA itself distinguishes the two….We cannot create an accommodation requirement for religion (race, sex, and so on). Our job is not to make the law the best it can be, but to enforce the law actually enacted.”
One member of the three-judge appellate panel, Diane Wood, did not agree with that conclusion, explaining in a 17-page dissent (twice as long as the majority opinion), why she thought the court should have allowed a jury to hear the case instead of dismissing it with a summary judgment in favor of the community association. Unlike the two-judge majority, Judge Wood found evidence of discrimination in the behavior of the board. She agreed with Bloch that precluding the display of mezuzahs did, in fact, amount to a constructive eviction, because it made dwellings in the community “fundamentally unavailable’ to owners who were observant Jews, and made it impossible to sell units in the community to prospective buyers who were themselves observant Jews. “The association might as well hang a sign outside saying, ‘No observant Jews allowed,” Judge Wood wrote.
She also disagreed with the majority’s conclusion that the rule was “neutral” in its treatment of religion. The wording might have been “facially” neutral, Judge Wood said, but its effect was anything but. While essentially “irrelevant” to other religions, she argued, the placement of a religious symbol on a doorway is “a duty” for Jews. She likened the restriction on displaying religious symbols to a rule barring the wearing of head scarves in public, which would apply to all, but affect only Islamic women, who are required by their religion to wear the scarves. “The whole point of the Blochs’ case,” Judge Wood wrote, “is that the association, under the guise of ‘interpreting’ the rule…transformed it from a neutral one to one that was targeted exclusively at observant Jewish residents.”
Arguing for a broader interpretation of the Fair Housing Act than the majority opinion asserted, Judge Wood said the anti-discrimination provisions should apply to post-purchase as well as “pre-sale” activities “to ensure that members of protected groups do not win the battle (to purchase or rent housing) but lose the war (to live in the new home free from invidious discrimination).”
Losing the War
The legal arguments about the reach of the Fair Housing Act are interesting and may be explored in future litigation. But given the circumstances of the case and the strongly worded dissent, attorneys who practice community association law are unlikely to interpret the majority decision as a license for boards to pass to adopt any regulations they want. They are more likely to view the case as another example of the extent to which legal disputes between owners and association boards represent a failure of logic, common sense, and diplomacy.
Logic would have dictated that Bloch drop her suit after the board changed the disputed rule and after the state Legislature and Chicago City Council had adopted measures prohibiting the imposition of comparable restrictions in the future. Emotion trumping logic and common sense, as if often does in association battles, Bloch persisted, even though she must share with other owners the cost of the association’s defense and of any judgment the court might have ordered the association to pay.
More telling and more troubling was the failure of logic and common sense underlying the board’s decision to fight this battle in the first place. When it comes to regulations restricting religious displays, most attorneys give their association clients this advice: “Don’t go there.” Boards should regulate in this area only lightly, if at all, setting reasonable limits on the size, location and (in the case of holiday decorations) timing of the displays, but otherwise giving owners wide latitude to give symbolic expression to their religious preferences. Bans or severe restrictions on religious ornaments lay the groundwork for legal battles boards rarely win and public relations skirmishes they always lose.
In this case, the association won its legal battle, in the sense that the court found a basis (after the expenditure of who knows how many thousands of association dollars in legal fees) for dismissing Bloch’s suit. But the board lost a far more important war, because the dispute led to the adoption of municipal and state restrictions on the authority of condominium owners to adopt rules governing what are supposed to be self-governing communities. That is not a good outcome for this community or for the community association world.