Friday, July 11, 2008

No Mezuzot Means No Observant Jews

The 7th Circuit, in a 2-1 opinion written by (Chicago law prof!) Frank Easterbrook, has held that an apartment which -- in the course of prohibiting all outside objects on doorways -- bars observant Jews from posting Mezuzot on the door frames does not violate the Fair Housing Act. Judge Diane Wood (also a Chicago law prof!) wrote the dissent, in which she noted that the prohibition effectively served as a red-line against selling to observant Jews. She also noted the charming argument by the condominium association in its brief that the Jewish plaintiffs were attempting to extract a "pound of flesh" in the case. The reference, of course, is to Shylock in The Merchant of Venice -- one of the most prominent Jewish villains in Western literature. Indeed, Judge Wood's summary of the facts shows a distressing pattern of, at best, insensitivity, at worst, prejudice, against the Jewish tenants here.

Judge Easterbrook argued that since the law was "neutral" with respect to religion (barring sports pennants right along with Mezuzot), it was thus permissible. This is a perfect example of my argument as to why "neutrality" in Church/State jurisprudence ends up providing insufficient protection to religious minorities, such as Jews.

First, Judge Wood's dissent makes it clear that, at the least, there are serious questions about whether the "neutral" interpretation of the rule in question was a deliberate guise for religion-specific hostility. Second, even if the interpretation was adopted with nothing but "indifference" to the consequences to Jews, it is facile to suggest that even the most ardent Bears fan is harmed in being barred from putting up a team pennant on his door the way that an Orthodox Jew is when she is prevented from putting up a Mezuzah. The banner of neutral principles does not work when grappling with fundamentally dissimilar cases. And the final point this case helps illuminate is how religious protection gets hinged on similarity to majority faiths. Had this rule been enforced only against Jews but not Christians, it'd clearly be illegal. But of course, there is no analogous religious obligation requiring objects on door frames in mainstream Christianity, so that's a moot point. And even more obviously, if Christianity did have such a requirement, then the rule and/or interpretation would never have been passed, because it would violate the conscience of the majority.

The New York Sun has more coverage.

12 comments:

Joe said...

David, in your view can any facially neutral practice (and we're talking about by a private party, if I'm understanding this case) with disparate impacts on various religious groups stand?

(I'm guessing you would say... balancing test?)

As you can guess, I am dubious, since there are any number of instances where individuals might forego an opportunity due to a religious conviction. Were I a judge, though, I might take the "pound of flesh" thing as showing discriminatory intent.

David Schraub said...

I think life is a balancing test, so I don't see any reason for law to work any differently.

Joe said...
This comment has been removed by the author.
Joe said...

I didn't mean to snark, actually. But I'm wondering what values we set in the test. It seems to me that we're getting into heavily subjective territory if we're looking at the interest of a religiously observant person in following their custom (which is problematic, but not dispositive); I'd even say weighing that value crosses the line and violates separation of church and state. And I don't think we can step back and plug in the opportunity foregone (in this case, staying in the apartment), because that was a matter ultimately left to the plaintiffs' discretion.

That said, having now read the case (yay, slow work day), I agree with Wood on the narrower grounds that this is a summary judgment motion with discriminatory intent/enforcement alleged and that 3604 deserves a broad reading. The plaintiffs still get their day in court without us running into the troubles I outlined above.

David Schraub said...

ooh...look at Joe, he's in law school. :-p

I think you're making this harder than it needs to be. If we identify religious freedom as a fundamental right (and I think it should be), then religious practices should be protected unless there is a compelling reason not to -- same "subjective" test we use all over the place in con law. We don't need to delve into theological concerns about how important the practice is to their Judaism specifically in order to recognize that there is a religious liberty concern in front of us.

That you say this line of thinking may violate C/S separation just makes it bite into my article thesis that much harder.

Joe said...
This comment has been removed by the author.
Joe said...

OK, but if the religious liberty concern isn't quantified, then I ask again, what facially neutral practice with disparate impacts on various religious groups can stand? (EDIT: As a realist, I don't think we can determine where a proper balance lies until the state interest is weighed against a harm, and by and large I don't think the courts really believe that either.)

My understanding of the First Amendment is that religious freedom *is* a fundamental right, but so is freedom of speech, and I don't see a problem with a condo prohibiting residents from putting up posters (be they campaign signs or rock bands) in the common area.

As for C/S separation, we may be at an impasse (but I'll read your thesis when I get the chance).

re law school: Yeah, once I started outlining legal arguments I could never just go back to "Well, in my opinion..."

Matthew said...

Pardon me, David, but what in your mind would qualify as a "compelling reason not to allow a religious practice"? Or, more appropriately, what has been touted in previous cases as an appropriate baseline without resorting to the human-sacrifices-are-naughty kinds of examples?

Joe said...
This comment has been removed by the author.
Joe said...

As I understand my Con Law (on the B+ level) David wants all legislation to be subject to strict scrutiny. So if there is a disparate impact on any religious group, the law needs to have strong relation to "a compelling state interest." (The case here is a little complicated because we're talking about action by a private party rather than the government; but lets say this was public housing and we had the government prohibiting anything being hung in the common area.)

What's a compelling state interest? The courts decide that. They'd probably all say it's a compelling state interest to prevent violent death. (Think of the children!) Some (probably including David) would say there's no compelling state interest in keeping the hallway completely bare. (The question still comes up whether any display can be restricted, though, since if it's a First Amendment violation to prohibit one person's religious display, I don't see how it's not a violation to prohibit another's NAMBLA poster--to use an extreme example, and assuming said poster is not pornographic, which would knock us off course into obscenity law).

Joe said...

I should note that all these deleted posts are just me thinking of something new to add in to what I already posted, so I delete the old one and revise it. Sorry for the clutter ; )

PG said...

I've heard the argument that religious First Amendment claims have greater weight than atheist or speech claims, because religion is not only for this world but also for the next. That is, if you keep a Muslim from (for example) stating his opposition to the war in Iraq while he is serving in the military, you are affecting only his ability to express himself at that moment. If during his service he also cannot pray five times a day facing Mecca, you are affecting his larger relationship to God and may be endangering his salvation.

I find this a crap argument because it privileges beliefs (both religious and non-religious) based on how demanding one claims the deity being served to be.

I'm now trying to remember whether I saw mezuzots by students' dorm doors when I was in college. I never consciously noticed a mezuzot until I moved into a NY apartment that had been quickly vacated by a prior owner who was an observant Jew, and the mezuzot was left behind. I found a really nice guy who sells mezuzots to come by and remove it with less damage to the doorway than I would have caused had I done it myself.