This case involved the right of the owners of a condominium to affix a mezuzah on the doorpost of their unit. A mezuzah, from the Hebrew word “doorpost,” contains a parchment affixed to the doorposts of one’s residence, on which is written certain biblical verses. Orthodox Jews consider the affixing of a mezuzah (pl. mezuzot) to a resident’s entrance as a religious obligation and a requirement for being able to reside in the residence. In September 2001 a Chicago condominium association adopted rules for the hallways of its building providing that “[m]ats, boots, shoes, carts or objects of any sort are prohibited outside Unit entrance doors.” One of the plaintiffs was on the association’s board and chaired the committee that devised the 2001 rules and she did not imagine that they would affect the mezuzah on the doorpost of her unit, which had been there for some 30 years without objection. From the Rule’s enactment until mid-2004, the Association did not remove mezuzot or any other object affixed to the outside of unit doors or doorposts, with the exception of a few pictures, depicting a swastika, a marijuana plant, and a Playboy bunny. However, when the hallways were repainted in 2004 all mezuzot and other religious signs and symbols were removed and when plaintiffs affixed another mezuzah after the repainting the condo association had it removed in reliance on the rules forbidding “objects of any sort” outside unit entrance doors. The Association also confiscated crucifixes, wreaths, Christmas ornaments, political posters, and Chicago Bears pennants. Plaintiffs filed suit asserting, inter alia, violation of 42 U.S.C. §§ 3604(a) and (b), and 3617 of the Fair Housing Act (FHA) and 42 U.S.C. § 1982 of the Civil Rights Act. By the time plaintiffs filed suit, the association’s board had adopted a religious exception to the hallway rules allowing unit owners to keep mezuzot, crucifixes, and other items of religious significance in place. Plaintiffs demanded damages for the distress they had suffered, plus an injunction to prevent the association from returning to its old ways. The demand for injunctive relief was deemed moot as there was no possibility that the association could return to its old ways given the fact that both the City of Chicago and the State of Michigan had passed legislation protecting the right of a condo owners to affix a mezuzah or other religious symbol to their door or doorpost. As to plaintiffs’ claim for damages, the district court held that 42 U.S.C. § 3604(a) and (b) did not afford relief because the FHA prohibited discrimination only at the time of sale. In addition, the district court found that the record failed to show that the defendants harbored any discriminatory animus based on religion or race toward plaintiffs. Consequently, because 42 U.S.C. §§ 3617 and 1982 required proof of discriminatory intent, the claims under said sections were also meritless. A divided panel of the Seventh Circuit Court of Appeals affirmed. The majority agreed with the district court that plaintiffs failed to present sufficient evidence of intentional discrimination to survive summary judgment. In the majority’s view there was no religious discrimination, because the Hallway Rules were neutrally adopted and enforced. And while the FHA provided for accommodation for disabilities, it did not provide for religious accommodations. On rehearing, the en banc Seventh Circuit Court of Appeals unanimously reversed the district court’s summary dismissal of plaintiffs’ federal claims, except its dismissal of the § 3604(a) claim. 42 U.S.C. § 3604(a) makes it unlawful

“[t]o refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race . . . [or] religion . . . .”

The en banc court held that plaintiffs could not proceed under § 3604(a). The en banc court held that the statutory language “otherwise make unavailable or deny” is not tethered to the words “sale or rental” that constrain the two preceding clauses of § 3604(a) and, contra the district court, may reach post-acquisition discriminatory conduct that makes a dwelling unavailable to the owner or tenant, somewhat like a constructive eviction. To recover damages under § 3604(a) plaintiffs did not have to move out the minute defendants began enforcing the Hallway Rule to take down the mezuzot; they had a reasonable time to vacate the premises. But here plaintiffs never vacated their condo units. Instead, they stayed put and resisted (by repeatedly replacing their mezuzot) for over a year before a court enjoined the Rule’s enforcement and the Association amended the Rules. Whether “unavailability” means that a plaintiff must, in every case, vacate the premises to have a § 3604(a) claim was an issue the en banc court refrained from reaching. But based on the facts of this case, the en banc court saw no possibility that a reasonable jury could conclude that the defendants’ conduct rendered the building “unavailable” to the plaintiffs, which is what § 3604(a) requires. Section 3604(a) does not contemplate attempted constructive eviction. The panel dissent raised the possibility that the Hallway Rule restricted not only plaintiffs’ ability to live in their unit, but, in violation of § 3604(a), also their ability to sell to other observant Jews, operating as a redlining rule does with respect to the ability of the owner to sell to observant Jews. In such case, no such person could buy a unit in the building and the condo association might as well hang a sign outside saying, “No observant Jews allowed.” However, this argument was unavailable to plaintiffs because they never made it to the district court, and offered no evidence that they intended to sell their units and that the Rule’s enforcement stifled their efforts to do so. 42 U.S.C. § 3604(b) makes it unlawful

“[t]o discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race . . . [or] religion . . . .”

This provision also proscribes post-acquisition discrimination. Constructive eviction is also a basis for recovery under § 3604(b), as the right to inhabit the premises is a “privilege of sale” and deprivation of that right by making the premises uninhabitable violates § 3604(b). However, as discussed supra, plaintiffs had no constructive eviction claim because they never vacated their units. But the “privilege” to inhabit the condo was not the only aspect of § 3604(b) that this case implicated. As a condition of the sale of the condo units to plaintiffs, plaintiffs agreed to be bound by the present and future enactments of the Board of Managers of the condo association. In turn, section 3604(b) prohibited, as a condition of the sale, the condo association from discriminating against plaintiffs through its enforcement of its rules, even if the rules were facially neutral. Accordingly, plaintiffs could recover damages under § 3604(b) if they produced sufficient evidence of discrimination. 42 U.S.C. § 3617 makes it unlawful

“to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of . . . any right granted or protected by section 3603, 3604, 3605, or 3606 of this title.”

The en banc court held that § 3617 provides for a post-acquisition discrimination claim independent of any claim allowed under § 3604. For the first time the Seventh Circuit squarely held that a violation of § 3617 can exist without a violation of § 3604 or any other FHA provision. Here, the association’s enforcement of the Hallway Rule did not constructively evict plaintiffs in violation of § 3604(a) or (b). But that did not foreclose the possibility that defendants, in violation of § 3617, “interfered” with plaintiffs enjoyment of their § 3604 rights or “coerced” or “intimidated” plaintiffs on account of their having exercised those rights. Coercion, intimidation, threats, or interference with or on account of a person’s exercise of his or her §§ 3603-3606 rights can be distinct from outright violations of §§ 3603-3606. As previously noted, § 3604 prohibits discriminatory evictions. It followed that attempted discriminatory evictions can violate § 3617’s prohibition against interference with § 3604 rights. Though § 3604 requires that the plaintiffs’ dwelling be made truly unavailable or that defendants deprive plaintiffs of their privilege to inhabit their dwelling (neither of which occurred in this case), the text of § 3617 is not so limited. Plaintiffs’ claim for coercion, intimidation, threats, and interference with or on account of their § 3604 rights did not require that the plaintiff actually vacate the premises. Here, defendants engaged in a pattern of conduct of repeatedly ripping down the plaintiffs’ mezuzot for over a year’s time. This conduct would constitute actionable “interference” under § 3617 if plaintiffs could show it was invidiously motivated, i.e., intentionally discriminatory. 42 U.S.C. § 1982 provides that

“[a]ll citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.”

Jews can recover under § 1982 for intentional anti-Jewish discrimination. Thus, plaintiffs could avoid dismissal of their § 3604(b) claim for discrimination in the terms or conditions of the sale of their condo units, their § 3617 claim for interference with their § 3604 rights, and their § 1982 claim for racial discrimination, if, on defendants’ motion for summary judgment, they could produce sufficient evidence of intentional discrimination. The en banc court held that, drawing all reasonable inferences in favor of plaintiffs, the record showed that there were genuine issues for trial on the issue of intentional discrimination and therefore defendants were not entitled to summary judgment. See the Court’s opinion for details of plaintiffs’ proof. Note also the Court’s observation that because the Hallway Rules were applied neutrally after 2004, with the Association clearing the doors and doorposts of everything from mezuzot to crucifixes to Christmas decorations to Chicago Bears’ pennants, plaintiffs had to show that the association reinterpreted the Hallway Rules to apply to mezuzot “because of” and not merely “in spite of” plaintiffs’ religion, i.e., the evidence had to indicate that the association was not simply indifferent to plaintiffs’ religion, but that the association reinterpreted the Rules with Jews in mind. (While the Court held that plaintiffs came forward with sufficient evidence of discriminatory intent, it noted that in certain circumstances plaintiffs can sustain a § 3604 claim on a modified disparate impact theory. However, the Court held that plaintiffs waived the disparate impact option by not developing it during the summary judgment process below. See the court’s opinion for details.)   Case # 3844 (7th Cir.) (en banc). For the panel decision, see  Case # 3244 (7th Cir.)

A Chicago condominium association adopted a rule providing that “[m]ats, boots, shoes, carts or objects of any sort are prohibited outside Unit entrance doors.” Relying on this rule, the association, beginning in April 2004, repeatedly removed the mezuzah from the doorpost of defendant’s condo unit. (A mezuzah is a Jewish religious object affixed to the doorposts of one’s residence on which is written certain biblical verses.) In response, defendant, who was Jewish, filed a religious discrimination claim with the Ill. Dept. of Human Rights, which was dismissed for lack of substantial evidence. Defendant also filed a religious discrimination complaint with the state Attorney General. The file on this complaint was closed when the condo revised its rules to, in effect, allow display of a mezuzah on a resident’s doorpost. Defendant had also filed a religious discrimination complaint with the City of Chicago Commission on Human Relations, as well as a religious discrimination claim in U.S. District Court. Between December 2005 and April 2006, both the City of Chicago and the State of Illinois enacted legislation effectively banning interference by a condo association with a resident’s right to display a mezuzah on a unit’s doorpost. Plaintiff condo association and, individually, the president of the condo’s board of directors, filed a suit against defendant. The complaint: (1) Requested an injunction enjoining defendant from continued interference with the condo’s day-to-day operations. (2) Alleged defamation of the condo association’s character and reputation and (3) sought injunctive relief enjoining any further defamation. (4) Alleged the condo president had been personally defamed and (5) sought injunctive relief enjoining continued defamation of the president. (6) Alleged intentional infliction of emotional distress on the condo president and (7) requested injunctive relief. (8) Alleged that defendant engaged in a civil conspiracy against the condo association by using her position as a public defender to conspire against the condo with members of the sheriff’s department and the Chicago police department. (9) Alleged that defendant had engaged in malicious prosecution of the condo association by continuing to file lawsuits against it after the Ill. Department of Human rights litigation was dismissed and after the condo association prevailed on summary judgment in federal court on defendant’s religious discrimination claim and at trial on defendant’s retaliation claim. (10) Alleged that defendant had used her position as a public defender in violation 42 U.S.C. § 1983. See court’s opinion for the factual allegations underlying the complaint. The complaint was filed in U.S. District Court in March 2007. On April 28, 2007, the Illinois Legislature enacted an Anti-SLAPP law. A SLAPP suit – a strategic lawsuit against public participation – is a civil lawsuit aimed at preventing a citizen from exercising her right to free speech, freedom of association, to petition, and participate in, the government, or for punishing her for having exercised such constitutional rights. While SLAPP suits masquerade as ordinary lawsuits such as suits for defamation they are generally meritless suits brought to chill a person’s rights by the threat of confronting the person with an expensive retaliatory lawsuit. Anti-SLAPP laws allow for a special motion to be used by a defendant in a SLAPP suit to obtain an expedited and early judicial ruling and dismissal of a meritless suit. The Ill. Anti-SLAPP act provides that the court “shall award a moving party who prevails in a motion under this Act reasonable attorney's fees and costs incurred in connection with the motion.” The Ill. Appellate Court affirmed the trial court’s dismissal of counts (1), (2), (3), (8), (9) and (10) of the above-described complaint pursuant to the Ill. Anti-SLAPP legislation. The complaint, at least in regards to the counts involving the condo association, was a SLAPP suit, as it was clearly predicated upon defendant’s acts of petition, speech, association, and participation in government in pursuit of a favorable government action regarding her claims of religious discrimination in the condo’s removal of her mezuzah. The counts in the complaint pertaining to the condo president – (4) (5) (6), and (7) – were allowed to go forward. See Court’s opinion for details. Although the Anti-SLAPP act was passed after the condo association filed its complaint, the Act was procedural in nature and could be applied retroactively to the association’s pending suit. Additionally, it was not error to award defendant attorneys’’ fees. Although an Illinois court will not apply an attorneys’ fee statute retroactively where (1) liability did not exist prior to enactment of the legislation; (2) the conduct giving rise to possible liability occurred prior to the statute’s effective date; and (3) the party against whom expenses were sought could not avoid or limit its liability by any action taken after the statute’s effective date, here plaintiff condo association did not satisfy number (3). Although the association was not on notice of its potential liability for attorney fees at the time its complaint was filed, the ANTI-SLAPP act not yet having been passed, prior to filing the motion to dismiss pursuant to the Anti-SLAPP act, defendant’s attorneys sent the condo association a letter informing it of the Act, giving it notice that its complaint violated the Act, and advising it of defendant’s intention to seek relief under the Act. Thus, the association’s conduct giving rise to the fee award was not its initial filing of the complaint, but its continued pursuit of the case after the statute became effective and after it was put on notice of the Act   Case # 4127 (Ill. App. Ct.)