06/13/2009 05:12 am ET Updated May 25, 2011

Keep Housing Fair

The U.S. Court of Appeals for the Seventh Circuit, which sits in Chicago, will rehear arguments on Wednesday in a case that implicates the rights of millions of Americans to practice and express their faith in their homes.

The plaintiffs in the case are some condominium unit owners who have alleged that their condominium association repeatedly removed mezuzot, small unobtrusive objects that observant Jews place on their doorposts in fulfillment of Jewish law, from the doorways of Jewish unit-owners' homes. Having displayed their mezuzot for 30 years without incident, the unit-owners contend that they were baffled when the association removed their mezuzot. The association claimed that the mezuzot violated a standing rule banning objects like mats, boots, shoes and carts outside unit entrance doors. But to the Jewish unit-owners, the mezuzot are not decorative choice, but a serious religious obligation, and the mezuzah ban was tantamount to an eviction. The unit-owners suit, alleges that the association's hallway rule as applied to mezuzot constituted unlawful, intentional religious discrimination in violation of the federal Fair Housing Act.

This mezuzah problem is not unique to this condominium association in Chicago. Indeed, residents on Long Island, in Houston, and in California have recently reported that their homeowners' associations have demanded the removal of mezuzot. Legislators in Texas are currently considering amending state housing law, as Illinois lawmakers have done, to prohibit this type of religious discrimination under state law.

And while these amendments to state law are welcome, the Seventh Circuit should find that the Fair Housing Act prohibits the condominium association's interpretation of its hallway rule to prohibit the posting of religious objects.

In an earlier, divided ruling, the Seventh Circuit held that the Fair Housing Act does not reach the condominium association's conduct because of two reasons: 1) the alleged discrimination was not a constructive eviction and it took place after the residents had moved into the property, rather than before the sale of the property; and 2) the hallway rule was not intended to be discriminatory when it was written.

These arguments unduly restrict the Fair Housing Act. As Judge Wood, the dissenting voice explained, the text of the statute does not compel an interpretation that the law covers only pre-sale activities. Indeed, how could the stated purpose of the Act, which is "to provide, within constitutional limitations, for fair housing throughout the United States," be achieved if the law did not protect minority residents from harassment after their arrival into a previously unintegrated neighborhood? Undoubtedly, that type of pervasive, discriminatory interference with minority housing rights instigated the passage of the Fair Housing Act of 1968.

The consequence of a ruling upholding these kinds of facially neutral rules could deny access to fair housing for minorities. Minorities will not have access to fair housing in the future if condominium associations can hide their intentional discrimination behind facially neutral rules. Here, the hallway rule nominally applies to objects common to any unit-owner (such as shoes), but its enforcement against mezuzot would forbid Jews -- and not any other members of the association -- from complying with a religious obligation in their homes. Judge Wood concluded that there should be a trial because the association's reinterpretation of its hallway rule to prohibit mezuzot may have "transformed it from a neutral [rule] to one that was targeted exclusively at Jewish residents," wrote Judge Wood.

Judge Wood's legal concerns are right. The Seventh Circuit should uphold the text and spirit of the Fair Housing Act by finding that housing is not "fair," within the meaning of the Act, if homeowners associations can use neutral rules to bully fellow homeowners because of their religion.