Statue of Jesus and the FHA

[Ira (Chip) Lupu]

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" <mjs4d at virginia.edu>  
>Subject: Statue of Jesus and the FHA  
>To: <religionlaw at 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?
>________________
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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