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?
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