If a condo association requests a Jewish resident to remove their Mezuzah from the door frame. What takes precedence - following the law of the land (din de malchuta dina), or the mitzvah (obligation/commandment) in Jewish law to hang a mezuzah? Can regulations by property owners/managers be allowed to restrict Jewish religious expression?
Your question raises many sensitive concerns, including the tension that can arise between following the laws of one’s locale as well as Torah law, not to mention potential tensions with neighbors and community associations and the possibility of making Jews look like we somehow feel “above the law”. The principle of “dina d’malchuta dina”, that “the law of the land is the law”, does indeed mean that Jewish People have a halachik/Jewish-legal obligation to abide by the laws of the country in which we live.
To directly address the concern raised, the Shach (in Shulchan Aruch Chosehn Mishpat 73:39) states clearly that the rule of dina d’malchuta dina does not apply if it directly contravenes Torah law. That is to say, one has a mitzvah to place a mezuzah on their doorpost, and (short of a threat to one’s life) that mitzvah overrides a local law. However, this case does not appear to be one of dina d’malchuta dina in any case, as it isn’t a law of the government but rather that of the condo association. The Ramban (Bava Batra 55A), Ritva, Tur (Choshen Mishpat 369) and others all note that in order for a rule to be considered dina d’malchuta dina, it must be an established law of the land that is well known to the people of the kingdom, found in the statute books of the kingdom and equally applied in a non-discriminatory way to all the citizens. It seems unlikely that the association of a condominium group qualifies as a government, nor that the other conditions are fulfilled in the case. Thus, this may indeed be less of a dina d’malchuta dina case within Jewish law than a first amendment case within US law about the ability of those who regulate properties to restrict religious expression.
Answered by: Rabbi Judah Dardik (Emeritus)
Oh, yes, I remember this case. There was a little flurry of publicity about it, not too long ago.
The Jewish obligation is to post the mezuzah, as there is a clear commandment for us to do so. There is a concept of dina d’malchuta dina (the law of the land is the law), which states that as long as no Jewish law contradicts it directly, one is obligated to follow the laws of the land. However, this is not a case of dina d’malchuta dina since in fact, a condominium or tenant board is not the law of the land, and indeed there is a commandment to post a mezuzah, so that would not be relevant.
Although initially I had thought that given the general understanding that has prevailed of the first amendment1 (later extended to state and local governments, via the fourteenth amendment2) this would make a difficult court case for the tenant organization, in fact, it’s not so clear-cut how it would turn out. Actual court case outcomes seem to have been somewhat more mixed than one might expect. In the aughts there were a couple of legal battles (one in Illinois, and one in Texas) that went back and forth in the courts, but both ended up with the condo associations working something out with the resident, and in Illinois, Florida and Texas, the states passed laws to protect Jews from mezuzah bans. There was an attempt at a federal law, which didn’t pass.
Nevertheless, at the very least, it seems unlikely that a condo could get very far without a lot of bad publicity, and certainly although in some cases courts ruled against the tenants, eventually in all the cases, the tenants eventually either won, or worked something out with the tenant organizations.
That being the case, in her place, I would suggest trying to explain to the condo association that it is a religious obligation and not optional. Unless there are other, underlying disagreements (such as a feud with a neighbor, or perhaps someone on the board), it seems likely that something can be worked out.
I suspect you may also be interested in the larger question - what if this had been a case where a Jew was coming up against an actual law. I would like to give you a good general answer, but un/happily (depending on whether you like complicated or not; I do, but not everyone does) one would have to present this on a case by case basis with a rabbi knowledgeable about halacha (Jewish law). The general rule is that when the Torah commands us, we are obligated, but the specifics of a given case might offer alternatives that allow some sort of compromise, or one might discover that in fact, what they had thought was an obligation turned out only to be a custom, or any number of other possibilities.
1“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
2 “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
The issue of community associations’ or home owners associations’ control of religious, patriotic, or political “displays” in condominium complexes has been examined in various states, from Arizona to Washington, and from Colorado to Connecticut (which is the locus of the most recent case, probably the one to which you refer).
In this most recent incident in Stratford, CT, there was more than an order to remove the mezuzah: the association fined her $50 per day that she violated the order.
According to the Jewish Telegraphic Agency (JTA) report of this incident(http://www.jta.org/news/article/2012/03/22/3092294/conn-ban-on-mezuzahs-draws-queries), the issue hung (no pun intended) on whether one defines the doorpost as being part of the owner’s domain. In the words of the condo association, the doorpost is a “structural element” of the building (and therefore not of the ‘unit’) and is controlled by rules governing common property. The association therefore believes that it has jurisdiction over what goes on the doorpost.
Oddly enough, the door of each unit seems to belong to the owner, and therefore the association permits wreaths, signs, and other displays if they’re on the door.
The JTA press release noted that “the right of condominium owners to display mezuzahs has generally prevailed in similar cases in Connecticut and other states, and a number of states have enacted laws upholding that right.” Cases in the states I mention above regarded the display of the American flag, protest flags, and political campaign signs, and when they have entered the legal realm, the home owner usually prevails.
To answer your question, I believe that the law of the land prevails. But one must ask “To which law are we referring: the law permitting condo associations to govern the common areas of their buildings, or the Constitutional question of the rights of freedom of religion and expression? This is really a legal question about which I do not have the requisite expertise. Nonetheless, it would seem to me that courts have to weigh the good of the association’s desire for uniformity in appearance with the guarantees preserved in our Constitution. The latter usually win out, especially when it comes to religious displays.
Copyright 2020 all rights reserved. Jewish Values Online
N O T I C E
THE VIEWS EXPRESSED IN ANSWERS PROVIDED HEREIN ARE THOSE OF THE INDIVIDUAL JVO PANEL MEMBERS, AND DO NOT
NECESSARILY REFLECT OR REPRESENT THE VIEWS OF THE ORTHODOX, CONSERVATIVE OR REFORM MOVEMENTS, RESPECTIVELY.