Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 05 C 5379-George W. Lindberg, Judge.
The opinion of the court was delivered by: Easterbrook, Chief Judge
Before EASTERBROOK, Chief Judge, and BAUER and WOOD, Circuit Judges.
In September 2001 the Shore- line 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 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).
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 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 front-door 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 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. 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.
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.
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 ...