Late last month, several Orthodox Jewish residents of a New Jersey apartment building—all elderly, some handicapped—filed a federal lawsuit because their co-op board would not let doormen press the elevator button for them on the Jewish Sabbath.
That these residents had to take such an extraordinary step is astonishing, given that both law and common decency require the co-op board to grant this modest request. But the case is far from just another squabble among neighbors; it is an important reminder. For all the recent Supreme Court decisions vindicating religious liberty, local power dynamics and religious antipathy still allow religious discrimination to flourish. In this way, unraveling how a federal courthouse came to be the forum for a fight over elevator buttons raises a fundamental question: How can the law build a more decent society for the faithful?
At the center of this dispute are Jewish Sabbath restrictions, which include a prohibition on operating anything electrical. For Orthodox Jews who live in a high-rise building, this means that pressing elevator buttons on the Sabbath is not permitted.
This obstacle, however, is relatively easy to deal with. In many buildings, the staff—for example, a doorman—will simply press the elevator button for Orthodox Jewish residents. Other buildings have elevators equipped with a mode adapted for the Sabbath—described colloquially as a “Shabbos elevator”—which is programmed to stop on various floors automatically so that residents can step in and out of the elevator without actually pressing any buttons.
Yet though the solutions are easy, some are unwilling to make space for religious practice. In the present case, Kurlansky v. 1530 Owners Corp., the plaintiffs have alleged building policies and comments from co-op board members that, if proven true, can only be described as discriminatory. Some of the plaintiffs have alleged hearing co-op board members say that they did not want “too many of those types of Jews” in the building. The building—referred to as the Colony—provides, according to its website, a wide range of amenities, including concierge and delivery service. Yet service doormen are, allegedly, expressly prohibited from pressing elevator buttons for Orthodox Jews on the Sabbath.
This unwillingness to be decent is all the more egregious when you take into account the needs of the plaintiffs. One is 91 years old and suffers from congestive heart failure; another is 81 and suffers from atrial fibrillation; a third is 68 and suffers from cardiomyopathy and an irregular heartbeat. For each of them, using the stairs would pose a serious health threat. As a result, the Colony’s discriminatory policies mean that these residents may have to spend the Sabbath confined to their apartments.
To be sure, most residents of the Colony are sympathetic to the religious needs of these residents. The new elevators in the building actually have a built-in Sabbath mode and the residents of the Colony voted in favor of using that mode on service elevators to accommodate their Orthodox Jewish neighbors.
But according to the plaintiffs’ allegations, the board—led by president Moe Marshall—claimed that putting the elevators on Sabbath mode was exerting too much wear and tear on the doors. When the plaintiffs asked for substantiation, they were rebuffed; when they offered to pay for a report on the elevator doors, they were rebuffed; and when they asked why these purported costs from the wear and tear hadn’t shown up in the building’s financials, they were ignored. And so without further recourse, the case now sits in federal court.
How can the law respond to these injustices? First and foremost, courts can vigorously apply state and federal laws—such as the Fair Housing Act—that prohibit religious discrimination when it comes to housing services and facilities. In recent religious liberty cases, the Supreme Court has repeatedly emphasized that government agents cannot act with bias and exclude religious institutions from government benefits. Federal and state anti-discrimination laws apply that same logic to various private actors with respect to employment, zoning, and housing. Courts must similarly not hesitate when presented with evidence of such animus to call out those who manipulate local power in the name of religious discrimination.
Policing religious discrimination, however, is not enough. If we are to uphold common decency in our local communities, the law must ensure that we implement reasonable accommodations that take our neighbors’ particular needs into account. For example, the Fair Housing Act demands the reasonable accommodation of the handicapped. And so buildings are legally obligated to provide handicapped residents with access to existing elevators and the like. One can imagine, though, the following response from a co-op board like that of the Colony: We have provided you with access to elevators—your religious obligations aren’t our problem.
But if the law is to promote a decent society, it must reject such stingy interpretations. Indeed, the law already demands that buildings make accommodations for the handicapped that focus on the particular individual seeking legal protection. To ignore the whole of the person—to force the disabled to forgo their religion in order to access reasonable accommodations—is to flout the underlying principles of anti-discrimination law and undermine the values of decency that must govern relationships between neighbors.
Religious citizens need protection against discrimination, some reasonable accommodation that takes religious needs into account, and some common decency. It’s high time we all find a way to do better.
Michael A. Helfand is professor of law and vice dean at Pepperdine Caruso School of Law, visiting professor at Yale Law School, and fellow at the Shalom Hartman Institute.
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