Statue of Jesus and the FHA

[Micah Schwartzman]

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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