The Dance of Meaning, Text, and Intention
posted by Nate Oman
The Seventh Circuit issued a decision (ht to Bashman) today holding that the Fair Housing Act does not require religious accommodations. The facts of the case provide an interesting twist on the autonomy (or lack there of?) of legal language. Here is Judge Easterbrook’s summary:
In September 2001 the Shoreline Towers Condominium Association adopted rules for the hallways of its building at 6301 North Sheridan Road in Chicago. The rules provide, among other things, that “[m]ats, boots, shoes, carts or objects of any sort” may not be placed outside owners’ doors. The rules also prohibit signs on doors or in hallways. Lynne Bloch, who was on the association’s board and chaired the committee that devised these rules, did not imagine that they would affect the mezuzah on the doorpost of her unit. For several years they did not. But when the hallways were repainted in 2004 all mezuzot and other religious signs and symbols were removed. Bloch affixed another; the association had it, too, removed, in reliance on the rules.
We have here a very neat, clean example of the author of a bit of “legislation” being subject to the independent power of the words that she authored. For example, if we were to understand the meaning of the terms of the condo association’s rules in terms of the intentions of their author, then it would seem pretty clear that Bloch’s own mezuzot was outside the scope of the regulation. Presumably the condo association, however, insisted that its actions were entirely consistent with the language that Block authored, regardless of her subjective intentions or lack thereof. At this point we could stop, simply pointing to the case as a tight example of the disjunction between textualism and intentionalism.
However, as Judge Wood points out in her dissent, more may have been going on in this case than the unstoppable power of the legal word. Certainly, the shift to an anti-mezuzot reading of the regulation demands attention. Did the enforcers simply have some sort of a linguistic epiphany? Judge Wood — and the Blochs — suggest not. Perhaps when the policy was adopted everyone understood that it did not apply to mezuzot’s and other religious symbols, rather like ambulances and the eternal no-vehicles-in-the-park rule. If that is the case, the shift in understanding may be understood as an attempt to “get” the Blochs, perhaps out of some anti-Semitic animus, perhaps simply out of the petty officious tit-for-tat to which condo associations and HOA’s are at times prone. The reading of texts, it would seem, is not such a neutral and autonomous process after all.
None of this is new or insightful, of course, but I was struck by how the fact that the author of the regulation is the person challenging it makes the timeless dance of meaning, text, and intention particularly tight in this case.
July 10, 2008 at 4:00 pm
Posted in: Jurisprudence
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Responses (3)
Jeff Lipshaw - July 10, 2008 at 5:07 pm
Another example of the illusion that the meaning of collectively agreed to words used communicatively are infused by any kind of mutual intention. I refer specifically to the “or objects of any sort.” See The Bewitchment of Intelligence: Language and Ex Post Illusions of Intention, 78 Temple L. Rev. 99 (2005).
A.J. Sutter - July 12, 2008 at 10:26 pm
Actually, I think Nate hit on a possible significant aspect of the story that’s more pragmatic and less implicated with meaning, text or intention. We don’t know anything about the politics of the relationship between Bloch and her fellow members of the board. For example, it could be that she p’d them off by being a very disagreeable person generally, or by incurring some animus over some other specific issue. That back-story might explain why the rule was enforced against her (as often happens to evil viziers in fairy tales and, BTW, in the story of the Jewish festival of Purim as well).
Of course, I’m agnostic as to whether she really had bad karma in this matter. But I don’t think one necessarily needs to get to the anti-Semitism angle — though see Dan Solove’s post above about literary allusions; surely the board’s lawyers could have used better judgment.
BTW, “mezuzot” is the plural (in Hebrew for “feminine” nouns) of singular “mezuzah”.
David E. Y. Sarna - November 16, 2008 at 10:52 am
With all due respect to the Court of Appeals, Jewish law clearly requires that a Mezuza be affixed to the right door post of every door, from the outside. Thus no Orthodox Jew could live in a building with rules like those of Shoreline, which seems pretty discriminatory to me. (see, for example, http://www.star-k.org/kashrus/kk-mitzvos-mezuzah.htm)
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