A Proposed Approach to Blocking Anti Mezuzah Co-Op and Condo Regulations

There have been several cases in which plaintiffs sued for the right to affix or leave a Mezuzah on an outside doorpost of an apartment, after a co-op or condo board required removal based upon a co-op or condo rule. For many years, courts held that the Fair Housing Act (FHA) prohibited religious discrimination against persons seeking housing accommodations and against persons who already have housing. Accordingly, these plaintiffs were able to bring causes of action alleging violation of the FHA.  However, in 2004, the Seventh Circuit held that the FHA does not provide a cause of action for discrimination occurring after the purchase or rental of a residence. In a later case, the Seventh Circuit reversed itself and ruled that the FHA can apply after the purchase or rental in certain limited circumstances.

The initial ruling however, which effectively blocked FHA lawsuits regarding Mezuzos for individuals who are already owners or tenants, spurred several jurisdictions to enact laws prohibiting condo or co-op rules restricting the display of religious signs or symbols on doorposts. This allows individuals in those jurisdictions to bring lawsuits alleging violation of these laws.

In an article in today’s New York Law Journal, Benjamin Weinstock, Esq. notes that the Seventh Circuits later decision still leaves gaps in the rights of plaintiffs with post-occupancy claims regarding Mezuzos and that waiting for states or municipalities to pass laws prohibiting rules restricting the display of religious signs or symbols on doorposts is highly inefficient.

Mr. Weinstock proposes using The Religious Land Use and Institutionalized Persons Act (RLUIPA) and The Religious Freedom Restoration Act (RFRA) as the basis for a cause of action in Mezuzah cases. Under RLUIPA, if the ability to use real property for religious practice is “substantially burdened” or circumscribed by even a facially neutral land use regulation, the regulation is invalid. The RFRA prohibits federal laws and practices that substantially burden religious practice. Both of these statutes, however, apply only to governmental regulation and not to private parties. Recognizing this limitation, Mr. Weinstock suggests that the U.S. Supreme Court decision in Shelley v. Kraemer could support the application of RLUIPA and RFRA even to private actions. In that case, a private land conveyance prohibited occupation by “people of the Negro or Mongolian Race”.  The Supreme Court held that although this did not violate the Equal Protection Clause of the 14th Amendment, which does not apply to private conduct, if a court were to enforce the racially restrictive covenant, it would convert a private covenant into State action. Mr. Weinstock argues that the same reasoning should be applied in Mezuzah cases; if a court were to enforce rules restricting placement of Mezuzos the restriction would become a state action, implicating RLUIPA and RFRA.

While Mr. Weinstock’s idea is creative, he does not explain how this would work on a practical level. Seemingly, this extension of RLUIPA and RFRA would be only be possible where a co-op or condo board is seeking to enforce the rule in court. By Mr. Weinstock’s reasoning, courts should not enforce such regulations because doing so would convert the private regulation to a state action, thereby violating RLUIPA and RFRA. Mr. Weinstock does not explain, however, how this novel approach allows a plaintiff to bring an action to overturn a Mezuzah-restrictive regulation. A court, in dismissing such an action based on RLUIPA and RFRA would not need to rule on the validity and/or enforcement of the regulation. I would think that the case could be dismissed simply on the grounds that RLUIPA and RFRA do not apply to this private party action.

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