In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 06-3376

LYNNE BLOCH, HELEN BLOCH, and NATHAN BLOCH,

Plaintiffs-Appellants,

v.

EDWARD FRISCHHOLZ and SHORELINE TOWERS

CONDOMINIUM ASSOCIATION,

Defendants-Appellees.

____________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 05 C 5379—George W. Lindberg, Judge.

____________

ARGUED FEBRUARY 20, 2008—DECIDED JULY 10, 2008

____________

Before EASTERBROOK, Chief Judge, and BAUER and WOOD,

Circuit Judges.

EASTERBROOK, Chief Judge. In September 2001 the Shoreline Towers Condominium Association adopted rules

for the hallways of its building at 6301 North Sheridan

Road in Chicago. The rules provide, among other things,

that “[m]ats, boots, shoes, carts or objects of any sort” may

not be placed outside owners’ doors. The rules also prohibit signs on doors or in hallways. Lynne Bloch, who was

on the association’s board and chaired the committee that
2 No. 06-3376

devised these rules, did not imagine that they would affect

the mezuzah on the doorpost of her unit. For several

years they did not. But when the hallways were repainted

in 2004 all mezuzot and other religious signs and symbols

were removed. Bloch affixed another; the association

had it, too, removed, in reliance on the rules.

By the time Bloch and her family filed this suit under

sections 804 and 817 of the Fair Housing Act, 42 U.S.C.

§§ 3604, 3617, and one of the implementing regulations,

24 C.F.R. §100.400(c)(2), the association’s board had

adopted a religious exception to the hallway rules and

instructed the custodial staff to leave mezuzot, crucifixes,

and other items of religious significance in place. The

Blochs demanded damages for distress they had suffered

in the interim, plus an injunction to prevent the association from returning to its old ways. The district court

granted summary judgment for the association and its

president, Edward Frischholz, relying on Halprin v.

Prairie Single Family Homes of Dearborn Park Association,

388 F.3d 327 (7th Cir. 2004).

We observed in Halprin that §804(b) forbids discrimination in the “terms, conditions, or privileges of sale or

rental of a dwelling” but does not address discrimination

after ownership has changed hands—and that §817, on

which the regulation rests, makes it unlawful to interfere

with a person in the enjoyment of rights under §804 (and

some other sections) but does not enlarge any of those

rights. This means, Halprin held, that religiously motivated

harassment of owners or tenants does not violate the Fair

Housing Act or its regulations. Conflicts among owners,

we concluded, must be addressed under state law (including the law of property, contracts, and voluntary

associations, in addition to any state civil-rights laws).
No. 06-3376 3

Halprin allowed that religious discrimination or harassment so severe that it amounts to constructive eviction

might be equated to making a dwelling unavailable on

religious grounds, and thus violate §804(b). See 388 F.3d

at 329. The Blochs contend that an observant Jew must

have a mezuzah at every entrance, and that to forbid all

mezuzot therefore is to forbid occupancy by all adherents

to Judaism. That is constructive eviction, the Blochs

maintain. To address this argument, we would need to

know whether the Blochs’ religious obligation can be met

only by a mezuzah on the hallway-facing side of each

doorpost; a mezuzah or other religious artifact attached

to the frame’s inner side, and thus not visible from the

hall unless the door was open, would not transgress the

association’s old rules.

Before we go further, a few words are in order on the

significance of the change that allows owners to fasten

mezuzot to the hall side of the door frames. At oral argument counsel for the Blochs told us that the goal of this

suit is prospective relief. That the association voluntarily

adopted a religious exception to its rules would not

make such a claim moot, for the board might abrogate

the exception. See United States v. W.T. Grant Co., 345

U.S. 629 (1953). But state and local laws have made it

impossible for the association to go back to the 2001

version. On December 14, 2005, Chicago enacted an

ordinance that denies a residential building authority to

prevent any owner or lessee “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” unless necessary to “avoid

substantial damage to property or an undue hardship to

other unit owners”. Chicago Municipal Code 5-8-030. And
4 No. 06-3376

as of January 1, 2007, a state law, 765 ILCS 605/18.4(h),

requires every condo association to establish a “reasonable

accommodation for religious practices, including the

attachment of religiously mandated objects to the frontdoor area of a condominium unit.” So defendants cannot restore the rule to which plaintiffs object. This, coupled

with counsel’s statement at oral argument that plaintiffs’

objective is an injunction, led us to ask for briefs on

mootness. Plaintiffs’ supplemental filing makes it clear

that, despite what counsel said at argument, their main

goal is damages (and, should they prevail, attorneys’ fees).

So the suit is not moot.

But it is unnecessary to consider whether a mezuzah on

the residential side of a doorpost would meet the requirements of plaintiffs’ faith. For the hallway rule, as adopted

in 2001 and as enforced in 2004, is neutral with respect to

religion. The rule says that no signs and no “objects of any

sort” may be placed on the hallway side of doors and door

frames. The association removed secular photos and

posters as well as Christmas ornaments, crucifixes, and

mezuzot. Generally applicable rules that do not refer to

religion differ from discrimination. See, e.g., Employment

Division v. Smith, 494 U.S. 872 (1990).

Plaintiffs do not contend that a seemingly neutral rule

was adopted to target an unwanted group, after the

fashion of Church of Lukumi Babalu Aye, Inc. v. Hialeah,

508 U.S. 520 (1993). The anti-sacrifice rule at issue in that

case was irrelevant to most inhabitants of the town but

effectively outlawed one unwelcome religious sect. The

hallway rule of the Shoreline Towers Condominium

Association, by contrast, potentially affects every owner. It

bans photos of family vacations, political placards, for-sale

notices, and Chicago Bears pennants. Lynne Bloch led the
No. 06-3376 5

committee that drafted this rule; she was not trying to

undermine her own religious practices. The objection to

this rule is not that it is designed to target a religion, but

that it lacks a religious proviso. The rule was adopted

not because of, but in spite of (or with indifference toward),

the consequences that plaintiffs decry. Cf. Personnel

Administrator of Massachusetts v. Feeney, 442 U.S. 256, 279

(1979).

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. See

42 U.S.C. §3604(f)(3)(B). Several federal statutes require

accommodation of religion. Title VII of the Civil Rights

Act of 1964, 42 U.S.C. §2000e(j), does so for employment, see Trans World Airlines, Inc. v. Hardison, 432 U.S. 63

(1977), the Religious Land Use and Institutionalized

Persons Act, 42 U.S.C. §§ 2000cc to 2000cc–5, does so for

zoning and prisons, see Cutter v. Wilkinson, 544 U.S. 709

(2005), and the Religious Freedom Restoration Act, 42

U.S.C. §§ 2000bb to 2000bb–4 does so for laws and practices

of the federal government that substantially burden

religion. See Gonzales v. O Centro Espírita Beneficente União

do Vegetal, 546 U.S. 418 (2006). 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. See also, e.g., Boerne v. Flores, 521 U.S.
6 No. 06-3376

507 (1997); University of Alabama v. Garrett, 531 U.S. 356

(2001). It would be especially inappropriate to adopt in

the name of the Fair Housing Act a principle that lack

of accommodation = discrimination, since the FHA itself

distinguishes the two. By requiring accommodation of

handicap but not race, sex, or religion, the statute’s structure tells us that the FHA uses the word “discriminate” to

mean something other than “failure to accommodate.”

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. See Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470

(2006).

Any requirement of religious accommodation creates

occasions for conflict. An entitlement of one group to

display its symbols may cause unease for other faiths that

abhor all icons. Within the bounds set by the Constitution’s

establishment clause, a legislature may authorize or require religious accommodation in housing, as Illinois

and Chicago have done. Deciding whether this is to be

done, and if so how far the obligation extends—the Religious Land Use and Institutionalized Persons Act stops

with land use and prisons—is a task for the legislature. The

Fair Housing Act requires accommodation of handicaps

but not religious beliefs and practices. No more need

be said to establish that the judgment must be

AFFIRMED.
No. 06-3376 7

WOOD, Circuit Judge, dissenting. The central question in

this case is whether the Shoreline Towers Condo Association Board and its president Edward Frischholz intentionally discriminated against plaintiffs Lynne, Helen, and

Nathan Bloch in violation of the Fair Housing Act (FHA),

42 U.S.C. § 3601 et seq., when the defendants abruptly

decided to reinterpret a condo rule on the topic of hallway clutter to prohibit the Blochs from fulfilling their

religious duty to place a small mezuzah on the outer

frame of their door. My colleagues recharacterize the

Blochs’ claim as one seeking some kind of accommodation

for a religious practice, and as so understood, they conclude that the district court was correct to grant summary

judgment in favor of the defendants. It is at that crucial

juncture that I part company with them. In my view, the

Blochs are raising a straightforward claim of intentional

discrimination based on their Jewish religion and ethnicity,

and they are entitled to reach a trier of fact. I therefore

dissent from the decision to affirm the district court’s

judgment.

I

It is important at the outset to review exactly what this

case is about. There is a helpful description of the mezuzah

in the amicus curiae brief filed by the Decalogue Society of

Lawyers in support of the Blochs’ claim, which I set forth

here for convenience:

The mezuzah, which translates to “doorpost,”

consists of a small piece of parchment rolled up and

placed into a small wooden, plastic, or metal casing. . . . They usually are no more than six inches

long, one inch deep, and one inch wide. The parchment contains two biblical passages:
8 No. 06-3376

Hear, O Israel: the Lord is our God, the Lord is the

One and Only. You shall love the Lord, your God,

with all your heart, with all your soul, and with all

your resources. And these matters that I command

you today shall be upon your heart . . . . And write

them on the doorposts of your house and upon your

gates.

Deuteronomy 6:4-9 (The Torah, The Artscroll

Series/Stone Ed., Mesorah Publ’n Ltd. 1996), and

It will be that if you hearken to My commandments

that I command you today, to love the Lord, your

God, and to serve Him with all your heart and with

all your soul . . . . You shall place these words of

Mine upon your heart and upon your soul; . . . And

you shall write them on the doorposts of your house

and upon your gates . . . .

Deuteronomy 11:13-21 (The Torah, The Artscroll Series/Stone Ed., Mesorah Publ’n Ltd. 1996).

The mezuzah must be placed in a certain place, and many

observant Jews will touch it and then kiss their fingers

and pray as they enter and leave the home. (I attach a

picture of a mezuzah to this opinion, to show its general

size and placement.) At this stage of the litigation, no one

is disputing the fact that the mezuzah is a central part of

the Jewish religious tradition or the fact that the Blochs

genuinely believe that it is their religious duty to have a

mezuzah on their doorpost.

Until 2004, the Blochs had their mezuzot posted on their

door posts in accordance with Jewish law, and no one

seems to have objected. As the majority notes, however, in

2004 the Association adopted the position that the Blochs’

mezuzot were inconsistent with a rule of the Association.
No. 06-3376 9

It is worth looking at the history of the dispute that

ensued in some detail, as it explains why the Blochs believe that they have been the victims of intentional discrimination. Because this case comes to us after a grant of

summary judgment, I present the facts in the light most

favorable to the Blochs.

The Blochs have lived for more than 30 years in three

units at Shoreline Towers, a condominium building located

on Chicago’s North Side. Lynne Bloch, the mother of

Helen and Nathan Bloch, has served on the condominium

board for over 15 years. In 2001, while she was on the

board, the rules and regulations committee revised the

rules and enacted the so-called Hallway Rule, which

reads as follows in its entirety:

Hallways

1. Mats, boots, shoes, carts or objects of any sort

are prohibited outside Unit entrance doors.

2. Signs or name plates must not be placed on

Unit doors.

3. Pets must not be left unattended in the hall.

Hallways should not be used as dog/pet runs.

4. No alterations to the common area hallways

are allowed.

5. No playing with or riding of bicycles, tricycles,

roller blades, etc. is allowed.

Hallway Rule 1 is the section at issue here. Until the spring

of 2004, no one interpreted the rule as forbidding the

placement of mezuzot on the exterior doorposts of unit

entrances.

In May 2004, the defendants began a project to renovate

the hallways in the building; this project included the
10 No. 06-3376

repainting of all walls and doors. They instructed the

residents to remove all objects from their doors in preparation for the work. The Blochs removed their mezuzot in

compliance with this request, but after the work was

completed, they re-affixed the mezuzot to the exterior

doorposts of their unit entrances. It was only then that

defendants began removing and confiscating the mezuzot,

without notice to the Blochs and without their permission.

The defendants claimed that they were enforcing Hallway Rule 1, even though the rule had never before been

applied in that way. It had instead been applied as a

rule ensuring that clutter did not accumulate around the

doors of units; Hallway Rule 2 was the only rule addressing items affixed to doors, and it obviously prohibited

only signs or name plates, not mezuzot. The Blochs objected and furnished information to the condominium

association explaining the religious signficance of the

mezuzah. Their efforts were unavailing: between May 2004

and September 2005, the building maintenance staff

repeatedly confiscated the Blochs’ mezuzot. At one point,

the Blochs were told that if they put up a mezuzah again,

they would be fined.

Perhaps the worst episode, and one that gives rise to a

strong inference of anti-Semitic animus, occurred while the

Blochs were mourning the death of Dr. Marvin Bloch,

Lynne’s husband and Helen and Nathan’s father. In

preparation for Shiva, the seven-day mourning period

specified by Jewish law, see http://www.aish.com/

literacy/lifecycle/the_Stages_of_Jewish_Mourning.asp

(visited June 23, 2008), the Blochs’ attorney wrote a letter to

the condo board requesting that their mezuzah be allowed

to remain during the Shiva. In the letter, the attorney

referred to an agreement between the Blochs and the condo
No. 06-3376 11

that would have permitted this limited display. Rather

than complying with their request, however, the defendants waited until the family literally was attending

Dr. Bloch’s funeral and then removed the mezuzot

while everyone was away. When the Blochs returned

home with the funeral guests, including a rabbi, they

were horrified to discover that the mezuzot were once

again missing.

Another resident of Shoreline Towers, Debra Gassman,

was also an observant Jew who described how “her life

was turned upside down one fateful summer evening”

when “she returned home to her Chicago condominium

to find her mezuza [sic] missing from the doorpost.” See

Ruth Eglash, The Case of the Confiscated Mezuzah, The

Jerusalem Post, June 8, 2006. Gassman, who also sued the

same defendants, see Gassman v. Frischolz et al., No. 05 C

5377 (N.D. Ill.), on appeal, No. 07-2213 (7th Cir.), first

thought that she had been the victim of a hate crime.

Stunned to find out that the mezuzah had been lifted at the

orders of the condominium board itself, Gassman concluded that she had essentially been evicted from her

home. In December 2005, she made aliyah (returning to

make Israel her home, see http://www.aliyah.org (visited

June 23, 2008)), but continued to pursue her lawsuit.

(Proceedings in this court have been suspended pending

the outcome of the Blochs’ case.)

In September 2004, Lynne offered a proposal to the

condo board to amend Hallway Rule 1 to specify that

mezuzot could be posted on the exterior doorframes of

unit entrances. The board refused. As a result of several

later developments, most of which occurred while this

litigation was pending, the case is now solely one for

money damages, as my colleagues note. After the district
12 No. 06-3376

court ordered the adoption of an amended hallway rule

pending the litigation, the City of Chicago amended

its code to prohibit:

interfere[nce] with the religious observances or practices of any lessee or condominium or cooperative

unit owner, by restricting or prohibiting such persons

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 owned or leased by such person . . . .

Municipal Code of Chicago, § 5-8-030 (enacted December

14, 2005). To similar effect, the General Assembly of Illinois

enacted a new law amending the Condominum Property

Act, so that it now specifies that:

no rule or regulation may impair any rights guaranteed

by the First Amendment to the Constitution of the

United States or Section 4 of Article I of the Illinois

Constitution including, but not limited to, the free

exercise of religion, nor may any rules or regulations

conflict with the provisions of this Act or the condominium instruments. No rule or regulation shall

prohibit any reasonable accommodation for religious

practices, including the attachment of religiously

mandated objects to the front-door area of a condominium unit.

765 ILCS 605/18.4(h) (effective January 1, 2007).

At oral argument, the panel requested supplemental

briefs discussing the question whether these new laws

rendered the Blochs’ case moot. Our concerns were heightened by the impression that the Blochs’ lawyer left with us

that the case was only about injunctive relief. A close look

at the pleadings, however, reveals that this is not so. Both
No. 06-3376 13

in the papers filed with the district court and those filed

here, the Blochs have maintained all along that they are

seeking damages for the pain, humiliation, and distress

they suffered during the long period of contention.

I therefore agree with the majority that the request for

damages is enough to save the case from mootness. I feel

compelled to add that there is nothing either surprising or

wrong (contrary to many statements in the defendants’

supplemental brief) about the fact that the Blochs initially

sought both kinds of relief. Indeed, especially given the

fact that the question in this case is whether a trier of

fact could conclude that the defendants were intentionally discriminating against the Blochs, it was

shocking to read at the end of their supplemental brief

that “[t]hroughout this matter, Plaintiffs have been trying

to get their ‘pound of flesh’ from Defendants due to

personal animosity between Lynne and Frischholz.”

Perhaps the defendants have not read Shakespeare’s

Merchant of Venice lately and thus failed to recall that the

play is about a bitter Jewish moneylender, Shylock, who

agreed to loan funds to a man he loathed (Antonio—who

spit on him because he was Jewish) only upon a promise

that if the loan was not paid in time, Shylock would be

entitled to carve a pound of flesh from Antonio. At the end

of the play, after the disguised Portia defeats the contract

by pointing out that Shylock is not entitled to shed any

blood while he takes his pound of flesh, Shylock is punished by losing half of his lands and being forced to

convert to Christianity. This is hardly the reference someone should choose who is trying to show that the stand-off

about Hallway Rule 1 was not because of the Blochs’ religion, but rather in spite of it. See ante at 5, citing Personnel

Administrator of Massachusetts v. Feeney, 442 U.S. 256, 279

(1979).
14 No. 06-3376

II

The Blochs are pursuing on appeal four legal theories in

support of their claim to relief. (They also raised supplemental state-law arguments, but the district court declined

to exercise its supplemental jurisdiction under 28 U.S.C.

§ 1367 after it dismissed the federal-law theories. If we

were remanding this case, as I believe we should be, those

state-law counts should be reinstated as well. I do not

discuss them further here.) Three of the federal theories

rest on the Fair Housing Act (FHA), §§ 3604(a), 3604(b),

and 3617; one relies on the Civil Rights Act, 42 U.S.C.

§ 1982. I begin with the FHA theories.

Section 3604(a) makes it unlawful “[t]o refuse to sell or

rent after the making of a bona fide offer, or to refuse to

negotiate for the sale or rental of, or otherwise make

unavailable or deny, a dwelling to any person because of

race, color, religion, sex, familial status, or national origin.”

Section 3604(b) then makes it unlawful “[t]o discriminate

against any person in the terms, conditions, or privileges

of sale or rental of a dwelling, or in the provision of

services or facilities in connection therewith, because of

race, color, religion, sex, familial status, or national origin.”

Finally, § 3617 makes it unlawful “to coerce, intimidate,

threaten, or interfere with any person in the exercise or

enjoyment of, or on account of his having exercised or

enjoyed, or on account of his having aided or encouraged

any other person in the exercise or enjoyment of, any

right granted or protected by section 3603, 3604, 3605, or

3606 of this title.” The primary authority from this court

construing §§ 3604 and 3617 is Halprin v. The Prairie Single

Family Homes of Dearborn Park Ass’n, 388 F.3d 327 (7th

Cir. 2004).

Halprin was another case that involved discrimination

on the basis of a homeowner’s Jewish religion and ethnic-
No. 06-3376 15

ity. Plaintiff Halprin complained that the president of his

homeowners’ association wrote anti-Semitic graffiti on a

wall of his property and committed other acts of vandalism

and harassment. The president also thwarted Halprin’s

efforts to complain at the board meetings. Although, as the

majority notes in its discussion of Halprin, we commented

that § 3604 “indicates concern with activities, such as

redlining, that prevent people from acquiring property,”

388 F.3d at 328, the opinion did not stop there. As a purely

semantic matter (not a bad way to construe a statute), we

acknowledged that “the statutory language might be

stretched far enough to reach a case of ‘constructive

eviction.’ ” Id. at 329. In general, we concluded, § 3604

is concerned with access to housing. Like the Blochs, the

plaintiffs in Halprin also raised a claim under § 3617, as

implemented by a regulation from the Department of

Housing and Urban Development (HUD), 24 C.F.R.

§ 100.400(c)(2). The regulation says, in pertinent part, that

“[c]onduct made unlawful under this section includes, but

is not limited to . . . [t]hreatening, intimidating or interfering with persons in their enjoyment of a dwelling because

of the race, color, religion, sex, handicap, familial status, or

national origin of such persons, or of visitors or associates

of such persons.” Halprin notes a tension between this

regulation and the language of § 3617, since § 3617 seems

to cover only interference with rights secured by other

provisions of the FHA, and § 3604 (according to Halprin)

extends only to claims related to access. In the Halprin

case itself, the court did not pursue that tension further

because it found that this point was forfeited, and so it

simply remanded the case to the district court for further proceedings on the claim relying on the HUD regulation. See also East-Miller v. Lake County Highway Dep’t, 421

F.3d 558, 562-64 (7th Cir. 2005).
16 No. 06-3376

Given the language in Halprin reserving the question

whether the HUD regulation creates an independent

right to be free from interference on the basis of religion

during the period of occupancy, I approach § 3604(a) as

if it is limited to cases in which availability or access to

housing is at issue. Even under that narrow view, the

Blochs should be permitted to go forward with their

case. The record contains substantial evidence that the

inability to place a mezuzah on the doorpost creates a

constructive eviction for observant Jewish residents.

There are letters from the Rabbinical Council of Chicago,

the Decalogue Society, and Rabbi Aron Wolf, who heads

up the Mezuzah Division of the Chicago Mitzvah Campaign (see http://www.chicagomitzvahcampaign.com/

mezuzah.htm (last visited June 24, 2008)). All of these

witnesses stated that an observant Jew would be forced

to move if he or she was not allowed to affix a mezuzah.

The only reason the Blochs have not moved is because

an interim rule was adopted, and then reinforced by an

order from the district court, allowing them to maintain

their mezuzot during the pendency of this suit. Going

forward, the new Chicago ordinance and Illinois law

provide further protection for them. But Debra Gassman

did move because of the way that Hallway Rule 1 was

enforced. Thus, in a real sense, Hallway Rule 1 makes

condominium units at Shoreline Towers functionally

unavailable to observant Jews like the Blochs and, if it

could be enforced, the rule would effect their constructive eviction. They are faced with a dilemma: a choice

between observing their religion as they believe the Torah

commands them to do and living in Shoreline Towers.

Moreover, Hallway Rule 1 operates exactly as a redlining

rule does with respect to the ability of the owner to sell to

observant Jews. No such person could buy a unit at
No. 06-3376 17

Shoreline Towers. The Association might as well hang a

sign outside saying “No observant Jews allowed.” From

that point of view, the rule falls squarely within the ambit

of § 3604(a), as construed in Halprin.

The Blochs’ case is also secure under the terms of

§ 3604(b), which focuses on discrimination against any

person in “the terms, conditions, or privileges of sale or

rental of a dwelling” on the ground, among other things,

of religion. (The defendants claim that the Blochs waived

this argument, but I do not read the record so narrowly.

First, there certainly is no express renunciation of any

such ground of recovery, and so the worst one could say

is that they forfeited the argument. Even that does not

square with the record: the Blochs did make allegations of

discrimination in connection with § 3604(b), and that is

enough in my view.) The language of § 3604(b) is broad,

referring to any “terms, conditions, or privileges of sale.”

Although it may be possible to interpret these words

restrictively to cover only pre-sale activities, nothing in

the statute compels such an interpretation. Tellingly,

HUD, which is the agency responsible for developing

regulations that implement the FHA, has adopted a

broader approach. HUD’s regulation extends the protections of § 3604(b) to “an owner, tenant or a person associated with him or her.” 24 C.F.R. § 100.65(b)(4). This was a

formal regulation of the type that is entitled to deference

under Chevron, USA v. Natural Resources Defense Council,

467 U.S. 837 (1984), assuming Chevron’s criteria are met.

The first step under Chevron is to ask whether Congress

spoke clearly to the issue at hand. Although the Association argues that § 3604(b) is unambiguous, and can be read

only to apply to pre-acquisition acts, the Blochs point out

that one of the most obvious “privileges” of the purchase
18 No. 06-3376

of property is the right to live in it without being plagued

by discrimination. At least one district court judge has

taken the Blochs’ side, suggesting that this is a view that a

reasonable person may hold. See United States v. Koch, 352

F. Supp. 2d 970, 976-77 (D. Neb. 2004). Contrary to the

Association’s position, Halprin does not dispose of this

point; it did not focus specifically on § 3604(b), and insofar as it dealt with regulations, it reserved for another

day a more detailed examination. Granting, then, that

§ 3604(b) is ambiguous, we turn to Chevron’s second step,

under which we decide whether HUD’s interpretation of

the statute is reasonable. HUD’s approach is consistent

with the “generous construction” that the Supreme Court

gave to the statute in Trafficante v. Metropolitan Life Ins. Co.,

409 U.S. 205, 212 (1972), and it is the one that will

ensure that members of protected groups do not win the

battle (to purchase or rent housing) but lose the war (to

live in their new home free from invidious discrimination).

I would find, for these reasons, that 24 C.F.R. § 100.65(b)(4)

is a valid interpretation of § 3604(b), and that the only

remaining question for this part of the case is whether the

Blochs have presented enough evidence of discrimination or harassment based on the fact that they are Jewish

to survive summary judgment.

 In this connection, the evidence of constructive eviction, diminished opportunity to sell to prospective Jewish

purchasers, and harassment (including the cruel funeral

incident) is just as useful for this theory as it was for

§ 3604(a). The Association’s argument that its actions

against the Blochs’ mezuzot were isolated and innocuous

incidents is only a characterization of the facts that a

jury might accept, but that it might equally reject. There

was nothing “isolated” about its actions: once it decided
No. 06-3376 19

to reinterpret Hallway Rule 1 to address items on the

doorpost as well as “mats, boots, shoes, carts or objects of

any sort” placed on the floor of the hallway near the

door, Association personnel consistently removed the

mezuzot, despite the Blochs’ protests and Lynne’s efforts

to get the rule changed or at least briefly suspended during Shiva. Nor, as I discuss in a moment, would a trier of

fact be compelled to find that the Association’s actions

were “innocuous” as opposed to intentionally discriminatory.

The central reason why the majority has rejected the

Blochs’ claim is its conclusion that they are seeking some

kind of special religious accommodation to a facially

neutral rule, and that there is nothing in this record that

could support a finding that the Association’s actions

amounted to intentional discrimination against Jews. That

position is relevant to each of the three sections of the

FHA on which the Blochs rely: §§ 3604(a) and (b), which

I have already discussed, and 3617, which makes it unlawful to interfere with, intimidate, etc., any person in the

exercise of rights secured elsewhere in the FHA. It

is possible, as Halprin acknowledged, that § 3617 and its

implementing regulation, 24 C.F.R. § 100.400(c)(2), support a free-standing claim under the statute. Even if it

does not, however, I have explained why I would find

that rights secured by § 3604 are at stake in this case.

The majority’s assumption that this case is really about

accommodation is possible only if we improperly resolve

a disputed factual question against the Blochs on summary judgment. Whether Hallway Rule 1 is supposed to

include mezuzot is both a material question and one that

is fairly in dispute: both sides have marshaled reasonable

arguments for and against the proposition, using com-
20 No. 06-3376

mon canons of construction. The majority takes this

argument as concluded and characterizes Hallway Rule 1

as a facially neutral rule that includes mezuzot to which

the Blochs are seeking an exception. This record, however, is not so unequivocal that either we or the district

court can decide such a pivotal factual issue on summary judgment.

The majority contends, ante at 4, that the Blochs are not

arguing that a seemingly neutral rule was adopted to

target an unwanted group, as was the case in Church of

Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993). With

respect, and with one minor qualification, I cannot agree.

It is true that the original five-part Hallway Rule, which

was adopted in 2001 while Lynne Bloch was on the condominium association’s board, was not adopted at that

time for this impermissible purpose. The whole point of

the Blochs’ case, however, is that the Association, under

the guise of “interpreting” the rule in 2004, transformed

it from a neutral one to one that was targeted exclusively

at observant Jewish residents. Just as the sacrifices proscribed by the ordinance in Lukumi were irrelevant to

most inhabitants of the town but a vital part of the Santería

religion, so the placing of an object on the doorpost is

(as far as anything in this record shows) irrelevant to

practitioners of Christianity, Islam, Buddhism, Hinduism,

or any other religion, but it is a duty (a mitzvah) for Jews.

The majority argues that Hallway Rule 1 is neutral because it applied not only to mezuzot but also to a wide

variety of secular objects (photographs and posters) and

objects associated with other religions (crucifixes, Christmas ornaments, and the like). Undoubtedly they are

relying on the rule announced in Employment Division v.

Smith, 494 U.S. 872 (1990), to the effect that the Free Exer-
No. 06-3376 21

cise Clause of the First Amendment is not violated by a

neutral state law that is not specifically directed at

the practitioners of a particular religion and is constitutional as applied to others. But they are overlooking the

qualifications the Court noted to Smith’s rule. The Court

cautioned that there was “no contention that Oregon’s drug

law represents an attempt to regulate religious beliefs, the

communication of religious beliefs, or the raising of one’s

children in those beliefs . . . .” Id. at 882. These qualifications came to the fore in Lukumi. Justice Kennedy’s opinion

for the plurality discussed Smith at length and explained

why it did not control in Lukumi, while the concurring

opinion of Justice Scalia (the author of Smith) agreed that

the laws enacted by the city council in Lukumi were “laws

which, though neutral in their terms, through their design,

construction, or enforcement target the practices of a

particular religion for discriminatory treatment.” 508 U.S.

at 557. In my view, Justice Scalia’s language aptly describes

Hallway Rule 1. To the extent that the facts pertaining to

the “design, construction, or enforcement” of the law are in

dispute, we must of course view them in the light most

favorable to the Blochs.

It is thus neither helpful nor accurate to say that the

reinterpreted, 2004, version of Hallway Rule 1 is “neutral”

and that the Jewish residents are seeking a special accommodation. The Hallway Rule falls outside of Smith

because it is not neutral once it is examined beyond its

face. Other methods of enforcing the Rule—such as the

regime that pertained up until 2004—would achieve the

same end without burdening legitimate religious interests.

Indeed, the direct regulation of materials on the fronts of

doors sufficed until 2004. Lukumi recognized, in the context of the First Amendment, that “[f]acial neutrality is
22 No. 06-3376

not determinative. The Free Exercise Clause, like the

Establishment Clause, extends beyond facial discrimination. The Clause ‘forbids subtle departures from neutrality’ . . . and ‘covert suppression of particular religious

beliefs.’ ” 508 U.S. at 534 (citations omitted). A trier of fact

could find that Hallway Rule 1 was immaterial to all other

residents, and that its sole force and purpose was to

discriminate against the Jewish owners. One could say

the same thing about a rule forbidding women to wear

headscarves in the common areas of the condominium: no

one but observant Islamic women would be under a

religious duty to do so, and so there would be a fair

inference that such a rule intentionally discriminates

against persons of one religion even though it appears

facially neutral.

III

The Blochs also relied on 42 U.S.C. § 1982, which provides that “[a]ll citizens of the United States shall have the

same right, in every State and Territory, as is enjoyed

by white citizens thereof to inherit, purchase, lease, sell,

hold, and convey real and personal property.” The Supreme Court has held that “Jews are not foreclosed from

stating a cause of action [under § 1982] against other

members of what today is considered to be part of the

Caucasian race.” Shaare Tefila Congregation v. Cobb, 481

U.S. 615, 618 (1987). That said, there is nothing in § 1982

that would call for a different result than the Blochs

would achieve under the FHA. They must prove intentional discrimination either way, and so the right to relief

under § 1982 rises or falls with the FHA theories.

In my view, the Blochs presented ample evidence to

support the denial of the Association’s motion for sum-
No. 06-3376 23

mary judgment. Their theory under the FHA is a sound

one, and their evidence would support a finding of intentional discrimination by the finder of fact. I would

therefore reverse and remand for further proceedings.

Picture of a Mezuzah

Source: Google Images

USCA-02-C-0072—7-10-08