148 [92 Op. Att'y

HOUSING

CONDOMINIUMS – FREEDOM OF RELIGION – PREEMPTION

PROPOSED BALTIMORE CITY ORDINANCE CONCERNING

REASONABLE ACCOMMODATION OF RELIGIOUS PRACTICES

NOT PREEMPTED BY STATE OR FEDERAL LAW

October 23, 2007

The Honorable Stephanie Rawlings-Blake

Baltimore City Council President

You have requested an opinion on a number of questions

relating to City Council Bill 07-0648 - Ordinance–Multiple-Family

Dwellings, First Amendment Accommodations:

1. Does existing Federal and/or Maryland State law already

provide for “reasonable accommodation for religious practices” in

multiple-family dwellings, including condominiums?

2. If existing law does not provide for these protections, is

it within the authority of the Baltimore City Council to provide for

these protections as written in City Council Bill 07-0648?

3. If so, what language do you suggest we use to define

“reasonable accommodations?”

City Solicitor George A. Nilson recently answered these

questions in a legal opinion, a copy of which is attached. The City

Solicitor concluded that: (1) the proposed ordinance would not be

preempted by existing federal and State fair housing laws or the

Maryland Condominium Act; (2) it is a proper exercise of the City

Council’s legislative authority to enact a fair housing law designed

to prohibit discrimination based on religion and to ensure reasonable

accommodations for the free exercise of religious practices; and (3)

“reasonable accommodation” should be defined as “modest,

affirmative steps that do not pose an undue financial hardship or
Gen. 3] 149

 Given the scope of your request, we have not considered the 1

status of the proposed ordinance under the Establishment Clause of the

United States Constitution, which we understand was previously

addressed by the City Solicitor’s Office.

substantial burden.” We have reviewed the City Solicitor’s letter

and agree with its conclusions. 

1

Douglas F. Gansler

Attorney General

Mark J. Davis

Assistant Attorney General

Robert N. McDonald

Chief Counsel

 Opinions and Advice

CITY OF BALTIMORE DEPARTMENT OF LAW

 SHEILA DIXON, MAYOR GEORGE A. NILSON

 CITY SOLICITOR

 101 City Hall

 Baltimore, Maryland 21202

August 30, 2007

The Honorable Stephanie Rawlings-Blake, President 

Baltimore City Council

Attn: Karen Randle, Executive Secretary

Room 409, City Hall

Baltimore, Maryland 21202

Re: City Council Bill 07-0648 - Multiple Family Dwellings

- First Amendment Accommodations

Dear President Rawlings-Blake,

You have asked the Law Department for a legal opinion on the

following questions:
150 [92 Op. Att'y

1) Does existing Federal and/or Maryland State law already

provide for "reasonable accommodation for religious practices" in

multiple-family dwellings, including condominiums?

2) If existing law does not provide for these protections, is

it within the authority of the Baltimore City Council to provide for

these protections as written in City Council Bill 07-0648?

3) If so, what language do you suggest we use to define

"reasonable accommodations?"

The Law Department's opinion is that:

1) Existing federal and state laws do not currently provide

for reasonable accommodations for religious practices in

multiple-family dwellings, and City Council Bill 07-0648 would not

be preempted .

2) Enactment of the bill would be a proper exercise of the

City Council's legislative authority.

3) "Reasonable accommodation" should be defined in the

bill as. "modest, affirmative steps that do not pose undue financial

hardship or substantial burden".

Analysis

1. Existing Federal and Maryland Laws Do Not Provide For

Reasonable Accommodations For Religious Practices in

Multiple-Family Dwellings, and City Council Bill

07-0648 Would Not be Preempted

The United States and Maryland Constitutions secure certain.

rights and privileges related to the free exercise of religion, but no

existing federal or state laws specifically ensure reasonable

accommodations for religious practices in multiple-family dwellings.

Various federal and state civil rights laws provide similar

protections. For example, the federal Fair Housing Act prohibits

denying a handicapped buyer or renter any reasonable

accommodation necessary "to afford such person equal opportunity

to use and enjoy a dwelling." 42 U.S.C. §3604(B). Another example

is Title VII of the Civil Rights Act of 1964, which requires an

employer to reasonably accommodate an employee's religious

practice unless such steps would cause "undue hardship on the
Gen. 3] 151

conduct of the employer's business." 42 U:S.C. §2000e(j). Maryland

law also prohibits discriminatory practices in residential housing

based on a renter or buyer's religion. Md. Ann. Code art. 49B,

§19(a).

However, these laws and others do not prevent the City of

Baltimore from adopting its own fair housing legislation. According

to the Supreme Court, none of the provisions of Title VIII of the

Civil Rights Act of 1968, including the Fair Housing Act, were

intended to "pre-empt local housing ordinances or provide rights and

remedies which are effective substitutes." Hunter v. Erickson, 393

U.S. 385, 388-89 (1969). Title VIII of the Civil -Rights Act of 1968

does not invalidate or limit any local laws that prevent

discrimination in housing. 42 U.S.C. §3615. The State of Maryland's

fair housing law explicitly states that municipalities are free to use

their legislative authority for adopting local anti-discrimination

ordinances. See Md. Ann. Code art. 49B, §38.

City Council Bill 07-0648 would not be preempted by the

Maryland Condominium Act. First, the bill would not be preempted

through conflict preemption, because the Condominium Act and the

proposed bill do not conflict. There are no provisions in the

Condominium Act addressing reasonable accommodations for

religious practices in multiple-family dwellings. Secondly, the

Condominium Act would not preempt the bill through express

preemption, because nothing in the Condominium Act expressly

preempts this type of bill; the Condominium Act only expressly

prohibits cities from enacting burdens on condominiums that do not

apply to similarly situated non-condominium properties. See Md.

Code Ann., Real Prop. §11-122(b).

Finally, the bill is also not preempted by the Condominium Act

through implied preemption, because the Maryland General

Assembly did not intend to occupy the entire field of law related to

protections of reasonable accommodations for religious practices in

multiple-family dwellings. The Maryland Court of Appeals has ruled

that §11-141 of the Maryland Condominium Act, which provides

that the law is "in addition to and supplemental to ... any local

enactment in the State" displays the General Assembly's

unwillingness to completely occupy the legislative field of

condominium regulation. Rockville Grosvenor, Inc. v. Montgomery

County, 289 Md. 74, 92-93 (1980).

Therefore, while existing laws currently do not provide for

reasonable accommodations for religious practices in
152 [92 Op. Att'y

multiple-family dwellings, City Council Bill 07-0648 would not be

preempted by federal or state law.

2. City Council Bill 07-0648 is a Proper Exercise of the

Baltimore City Council's Legislative Authority.

In Montgomery Citizens League v. Greenhalgh, 253 Md. 151

(1969), the Court of Appeals ruled that the County Council of

Montgomery County had the authority under the constitution and

laws of Maryland to adopt a fair housing law that prohibited

discrimination on the basis of, among other things, "religious creed."

The Court in Greenhalgh reasoned that Montgomery County's fair

housing law was a "reasonable exercise in good faith of the police

power to protect the peace and good order of the community and to

promote its welfare and good government" in accordance with its 

home rule authority. Id. at 162.

Like the enactment of Montgomery County's fair housing law

prohibiting religious discrimination, passage of City Council Bill

07-0648 would be a legitimate use of the City's home rule authority

granted by the constitution and laws of Maryland and a valid

exercise of the Mayor and City Council's police power. By

protecting religious freedom and ensuring reasonable

accommodations for the free exercise of religious practice, the City

Council bill rationally promotes the health, morals and welfare of

Baltimore City citizens. Therefore, the enactment of City Council

Bill 07-0648 would be properly within the Baltimore City Council's

authority.

3. A Definition of "Reasonable Accommodations" Should.

Be In Accordance With Federal Court Interpretations of

Similar Legislative Mandates

While existing law does not provide the protections contained

in City Council Bill 07-0648, federal courts have construed similar

provisions mandating "reasonable accommodations" in other

contexts. Specifically, courts have turned to interpretations of the

Americans with Disabilities Act and the Rehabilitation Act of 1973

to define a "reasonable accommodation." Solberg v. Majerle

Management, 388 Md. 281, 295 (2005). A determination of whether

an accommodation is reasonable requires undertaking a

case-by-case, highly fact-specific examination and balancing the

legislative purpose against the need for "reasonable boundaries." Id.

(internal citations and quotations omitted). Central to this analysis is

"the cost and burdens of any requested accommodation." Id.
Gen. 3] 153

Following Solberg, "reasonable accommodation" should be

defined as "modest, affirmative steps that do not pose an undue

financial hardship or substantial burden." Id. at 297 (internal

citations and quotations omitted). This "undue hardship / substantial

burden" standard would be appropriate for City Council Bill 07-0648

to ensure reasonable accommodation for religious practice. (See

attached proposed amendment.)

Conclusion

While existing federal and Maryland laws do not currently

provide for "reasonable accommodation for religious practices" in

multiple-family dwellings, enactment of City Council Bill 07-0648

would be a proper exercise of the City Council's authority, and it is

not preempted by federal or state law.

Very Truly yours, 

George A. Nilson 

City Solicitor