Supreme Court contender mulls mezuzah bias case against condo board
If forbidding Jewish families to post “mezuzahs” on their condominium doors is not discrimination, then what if a seller told a Jewish family, “I’m happy to sell to Jews, but the association does require that Jews wear a yellow star?" Judge Richard Posner asked a lawyer for Shoreline Condominium Wednesday.
"That's something completely different," attorney David C. Hartwell said.
(University of Chicago/AP)
Judging by their questions, Posner and Judge Diane Wood did not seem so sure it was different.
Wood -- who rises to the top of many pundits' short lists to be nominated to the U.S. Supreme Court -- did most of the talking at Wednesday's hearing and illustrated once again her backers' boasts that she is unafraid to take on conservative colleagues such as Posner and Chief Judge Frank Easterbrook on the Chicago-based 7th Circuit Court of Appeals. She did just as much self-confident interrupting as Posner and Easterbrook.
Though there were eight judges on Wednesday's panels, 90 percent of the questioning came from Wood, pinch-hitting for the Jewish Bloch family, which brought the lawsuit; and from Posner and Easterbrook, whose questions seemed to bolster the condominium's side of the argument -- until the very end when Posner asked a few questions friendly to the Bloch's side -- such as the yellow star question -- and he and Wood looked at each other and smiled and laughed.
Ironically, some conservative groups have denounced Wood as "hostile to religious litigants."
With most of the Jewish judges who live in condominiums and might have mezuzahs on their condo doors having recused themselves from the hearing, the Bloch family may have a hard time finding a majority of judges on their side.
At issue is whether a rule that says condo owners must have nothing on their doors has a discriminatory effect even if it is “facially neutral” on religion. Shoreline said no, and furthermore, the Fair Housing Act, under which the lawsuit was brought, only applies at the time of sale, not for actions a condo board takes against residents who have lived in a unit 30 years, Hartwell said.
Could it be that the condo association board and its president’s repeated removal of the Bloch family’s mezuzah — a scroll observant Jews are required to post on their doorframes — was an “empty-headed” act, not one of intentional religious discrimination? Easterbrook asked.
It had a discriminatory effect, the Blochs’ attorney Gary Feinerman said.
“Obviously, if you have a rule of general application that collides with some religious observance, it’s going to have a disparate effect,” Posner said.
“That doesn’t mean its not discriminatory,” Feinerman said.
“Yes it does,” Posner shot back.
The board and its president had been made aware on numerous occasions the religious significance of the mezuzah, but there was personal animus between the president and Lynne Bloch, Feinerman said.
The association removed the mezuzah three times during the funeral and grieving period for Bloch's husband, while leaving a coat rack and a table with water outside the door to wash hands as per Jewish law, Feinerman said.
“They took down the mezuzah but they left up the coat rack —that’s the odd thing,” Wood said.
“Your whole case comes down to the table and the coat rack. The personal animus — that undermines your position,” Posner told Feinerman “You don’t care about his or her religion, you just don’t like this person, that’s not discrimination.”
Feinerman argued that if hostility trumped discrimination then a white landlord who burned a cross on an African-American tennant’s lawn could argue it wasn’t discrimination — the landlord just hated that particular African-American person.
Posner nodded and said, “I agree.”
Wood is a senior lecturer at the University of Chicago, where she taught with President Obama. (So are Posner and Easterbrook, though they make no Democratic Supreme Court short lists).
Wood’s supporters say she would be able to stand up to conservatives on the Supreme Court the same way she does on the 7th Circuit.
The court is expected to issue a ruling in the next few months.