Statue of Jesus and the FHA
In response to Bloch v. Frischholz (7th Cir. 2008), which held that residents were not entitled under the Fair Housing Act (FHA) to post mezuzahs, Congress has been considering legislation to amend the FHA to protect religious symbols. Here is the text of the proposed amendment, titled the Freedom of Religious Expression in the Home Act of 2008 (H.R. 6932): Section 804 of the Fair Housing Act (42 U.S.C. 3604) is amended by adding at the end the following: (g) To establish a rule or policy that prevents a person from displaying, on the basis of that person's religious belief, a religious symbol , object, or sign on the door, doorpost, entrance, or otherwise on the exterior of that person's dwelling, or that is visible from the exterior of that dwelling, unless the rule or policy is reasonable and is necessary to prevent significant damage to property, physical harm to persons, a public nuisance, or similar undue hardship. Suppose this amendment to protect religious symbols is passed. What would be the legal status of non-religious displays? If a homeowners' association adopts a policy barring all forms of displays (as was the case in Bloch), and if the FHA creates an accommodation for religious expression, would someone who wants to post a non-religious display have grounds to object? Suppose a resident posts a sign saying, God loves McCain. Now another resident posts a sign that says Vote Obama. The homeowners' association removes both signs. The McCain supporter makes a claim under the amended FHA to protect his religious expression. What about the Obama supporter? Here are a couple possibilities: (1) The Obama supporter might have an Establishment Clause challenge to the FHA amendment. The claim would be that the amendment is an accommodation that burdens non-beneficiaries. Citizens whose political views are religiously informed gain an advantage over citizens who aren't religious (or whose political views aren't religiously informed). (2) Perhaps the Obama supporter could also claim that the amendment in effect creates a public forum by restricting homeowners' associations from preventing certain forms of speech. But if that's the case, the amendment is viewpoint discriminatory, because it only protects religious speech. Any thoughts about those possible challenges?___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Statue of Jesus and the FHA
A ban on religious symbols like a mezuzah will as a practical matter often make a house unavailable for a potential buyer or renter.Banning political signs-which I think is a terrible idea- does not do that. For what it is worth, I had suggested that the proposed overruling of Bloch reach political signs to avoid the problem raised in the prior post, but I was unable to persuade the sponsors. And for what it is worth, the ACLU opposed the bill on the ground that it might sanction religious hate speech, making this the first time in memory that the ACLU has opposed protection for hate speech. For a more interesting problem relevant to Eugene's initial inquiry about the claim that the display of a statute of Jesus might violate the FHA- I think a specious claim- see http://www.washingtonpost.com/wp-dyn/content/article/2008/10/24/AR200810 2401606.html, discussing whether real estate agents may display a Christian symbol on their ads. Marc Stern From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Micah Schwartzman Sent: Thursday, November 06, 2008 12:56 PM To: religionlaw@lists.ucla.edu Subject: Statue of Jesus and the FHA In response to Bloch v. Frischholz (7th Cir. 2008), which held that residents were not entitled under the Fair Housing Act (FHA) to post mezuzahs, Congress has been considering legislation to amend the FHA to protect religious symbols. Here is the text of the proposed amendment, titled the Freedom of Religious Expression in the Home Act of 2008 (H.R. 6932): Section 804 of the Fair Housing Act (42 U.S.C. 3604) is amended by adding at the end the following: (g) To establish a rule or policy that prevents a person from displaying, on the basis of that person's religious belief, a religious symbol , object, or sign on the door, doorpost, entrance, or otherwise on the exterior of that person's dwelling, or that is visible from the exterior of that dwelling, unless the rule or policy is reasonable and is necessary to prevent significant damage to property, physical harm to persons, a public nuisance, or similar undue hardship. Suppose this amendment to protect religious symbols is passed. What would be the legal status of non-religious displays? If a homeowners' association adopts a policy barring all forms of displays (as was the case in Bloch), and if the FHA creates an accommodation for religious expression, would someone who wants to post a non-religious display have grounds to object? Suppose a resident posts a sign saying, God loves McCain. Now another resident posts a sign that says Vote Obama. The homeowners' association removes both signs. The McCain supporter makes a claim under the amended FHA to protect his religious expression. What about the Obama supporter? Here are a couple possibilities: (1) The Obama supporter might have an Establishment Clause challenge to the FHA amendment. The claim would be that the amendment is an accommodation that burdens non-beneficiaries. Citizens whose political views are religiously informed gain an advantage over citizens who aren't religious (or whose political views aren't religiously informed). (2) Perhaps the Obama supporter could also claim that the amendment in effect creates a public forum by restricting homeowners' associations from preventing certain forms of speech. But if that's the case, the amendment is viewpoint discriminatory, because it only protects religious speech. Any thoughts about those possible challenges? ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Statue of Jesus and the FHA
Micah's post below suggests the problem analogous to that sometimes raised under RFRA or RLUIPA -- may the state accommodate by statute a religious message, but not its secular analogue? The standard answer is that the appropriate remedy is to extend the right to all, rather than to strike the accommodation, in large part because the secular expression has its own First Amendment provenance. When the accommodation does not involve constitutional rights (e.g., exemption for religious use of peyote, and others want to use peyote for non-religious reasons), the argument for remedy by extension is frequently more troublesome. Original message Date: Thu, 6 Nov 2008 12:55:33 -0500 From: Micah Schwartzman [EMAIL PROTECTED] Subject: Statue of Jesus and the FHA To: religionlaw@lists.ucla.edu In response to Bloch v. Frischholz (7th Cir. 2008), which held that residents were not entitled under the Fair Housing Act (FHA) to post mezuzahs, Congress has been considering legislation to amend the FHA to protect religious symbols. Here is the text of the proposed amendment, titled the Freedom of Religious Expression in the Home Act of 2008 (H.R. 6932): Section 804 of the Fair Housing Act (42 U.S.C. 3604) is amended by adding at the end the following: (g) To establish a rule or policy that prevents a person from displaying, on the basis of that person's religious belief, a religious symbol , object, or sign on the door, doorpost, entrance, or otherwise on the exterior of that person's dwelling, or that is visible from the exterior of that dwelling, unless the rule or policy is reasonable and is necessary to prevent significant damage to property, physical harm to persons, a public nuisance, or similar undue hardship. Suppose this amendment to protect religious symbols is passed. What would be the legal status of non-religious displays? If a homeowners' association adopts a policy barring all forms of displays (as was the case in Bloch), and if the FHA creates an accommodation for religious expression, would someone who wants to post a non-religious display have grounds to object? Suppose a resident posts a sign saying, God loves McCain. Now another resident posts a sign that says Vote Obama. The homeowners' association removes both signs. The McCain supporter makes a claim under the amended FHA to protect his religious expression. What about the Obama supporter? Here are a couple possibilities: (1) The Obama supporter might have an Establishment Clause challenge to the FHA amendment. The claim would be that the amendment is an accommodation that burdens non-beneficiaries. Citizens whose political views are religiously informed gain an advantage over citizens who aren't religious (or whose political views aren't religiously informed). (2) Perhaps the Obama supporter could also claim that the amendment in effect creates a public forum by restricting homeowners' associations from preventing certain forms of speech. But if that's the case, the amendment is viewpoint discriminatory, because it only protects religious speech. Any thoughts about those possible challenges? ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. Ira C. Lupu F. Elwood Eleanor Davis Professor of Law George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
