The federal case about the condo association and the mezuzah is back in the news for a couple of reasons. For one thing, it's receiving a rare en banc hearing of the entire Seventh Circuit of the U.S. Court of Appeals.
For another thing, appellate judge Diane Wood is in the middle of the mezuzah case, and she's now getting a lot of attention as a short-lister President Obama could soon nominate to replace David Souter on the U.S. Supreme Court.
The New York Times recalled the other day that in 1995, when President Clinton had a Seventh Circuit vacancy to fill, Senator Paul Simon "told the president the new judge should be a reliable progressive who would be cerebral enough to go up against the court’s two formidable conservatives, Judges Richard A. Posner and Frank H. Easterbrook. He said it should be Prof. Diane P. Wood of the University of Chicago law school."
Wood took on Easterbrook in the mezuzah case -- which I wrote about here ten months ago. The plaintiff, Lynne Bloch (filing with her daughter, Helen, and son, Nathan), complained that in 2004 the Shoreline Towers Condominium Association had forbidden her to put up a mezuzah outside her door, a dictate she could only obey by breaking Jewish law. Bloch challenged the ban in federal court, where a judge granted summary judgment to the condo association. Bloch appealed, and last July a panel of three judges upheld the lower court, Easterbrook writing the majority opinion and Wood dissenting. I commented, "Judges don't always disagree with each other for fancy philosophical reasons. The Bloch suit strikes me as a case in which judges disagree because one [Wood] thinks harder about a matter than the other." Wood's 17-page dissent was not only almost three times as long as Easterbrook's decision, it struck me as more carefully reasoned. Wood simply took the matter more seriously.
Easterbrook had pretty good reasons to take it less seriously. As his opinion pointed out, even before Bloch filed her suit in 2006 the condo board had relaxed its prohibition, allowing her mezuzah to return to her doorjamb, and Chicago's City Council had passed an ordinance guaranteeing the right of owners and lessees to post religious symbols outside their doors. Furthermore, in 2007 the General Assembly had passed a state law requiring condo associations 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 Bloch was simply going after damages and attorneys' fees. Or as a defense brief put it, a "pound of flesh." Judge Wood jumped on that crack in her dissent. After a quick summary of the plot line of The Merchant of Venice, Wood commented, "This is hardly the reference someone should choose who is trying to show that the stand-off about Hallway Rule 1 was not because of the Blochs' religion, but rather in spite of it."
In her dissent, Wood said that she reached a different conclusion from her colleagues because she interpreted the issue differently. She wrote: "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 a trier of fact." Wood was simply saying that Lynne Bloch's suit shouldn't be dismissed out of hand -- it deserved to be heard.
Bloch pressed on. And the Seventh Circuit, remarkably, decided she had raised such a serious issue that the entire circuit should consider it. Oral arguments took place Wednesday morning in a packed courtroom, with Wood "in the spotlight," as the Sun-Times put it. Wood led the questioning of the two sides' attorneys, with Easterbrook also asking plenty of questions.
Though it's prevailed against Lynne Bloch at every legal turn, the Shoreline Towers Condominium Association -- 6301 N. Sheridan Road -- is acting like the side of the argument that needs to gets its message out because public sympathy's gone to the opposition. Last Friday it issued a press release declaring its innocence "of alleged religious discrimination based on a lack of accommodation" and making the curious statement that it's "proud to be leading the trend towards regulated freedom of religious expression."
The press release points out that the Bloch suit was filed four days after the condo board "rescinded the general hallway prohibition" on September 12, 2005, and that when a formal "accommodation for freedom of religious expression" was officially adopted and ratified Lynne Bloch was the only member of the condo board not to vote for it. She abstained.