(In this post, I put the citations in footnotes [e.g., (1), (2)] at the bottom to make it easier to read. You can let me know what you think about the new format by commenting below.)
Recently, a new law took effect in Texas that ensures that property owners’ associations do not adopt or enforce rules that prohibit residents from placing mezuzos on their doorposts. Actually, the language of the legislation is a little broader than that. It refers to the display or affixing on the entry of one’s dwelling “religious items that are expected to be displayed by a tenet of the owner’s or resident’s religion.” (Click here for the full text.) However, the inspiration behind the law was a Houston couple who were ordered by their condo owners’ association to take down a mezuzah from their door frame. (Click here for the full story.) Similar occurrences have led to comparable legislation in both Illinois and Florida.(1) (Interestingly, the Florida law requires a reasonable accommodation for “a reasonable accommodation for the attachment on the mantel or frame of the door of the unit owner of a religious object not to exceed 3 inches wide, 6 inches high, and 1.5 inches deep”––just the right place and size for a mezuzah!)
The nature of common interest communities (CIC’s) creates an interesting problem with regard to religious discrimination. CIC’s are generally governed by an association of the unit-owners, which acts as a governing body and (among other things) makes rules regarding the use and appearance of common areas. However, the homeowners’ association is a private entity and is not an extension of the government. Thus, it is not a “state actor” bound by the Free Exercise clause of the First Amendment, nor is it subject to the restrictions of the Religious Land Use and Institutionalized Persons Act.(2) Nevertheless, a CIC resident who is discriminated against by a homeowners’ association can sue under the federal Fair Housing Act,(3) as discussed in Bloch v. Frischholz,(4) the case which inspired Illinois’ “mezuzah law.” Additionally, state laws can afford relief to residents who are told to take down mezuzos.(5)
All of the problems arising from mezuzos in CIC’s result from a seeming conflict between the laws of mezuzah and the rules enacted and enforced by homeowners’ associations. CIC rules often prohibit the placing of objects on the outside of doorways. A mezuzah must be placed on the part of the doorpost that is perpendicular to the door. (See this picture as an example.) Since most doors to houses/apartments open inward, this area is generally outside of the apartment. This means that the mezuzah must be placed outside of the front door, potentially in violation a particular CIC’s rules. This gives rise to the question: May a mezuzah be placed inside an apartment, behind the front door, as to not violate the rules imposed by a homeowners’ association?
The Gemara states that if one hangs a mezuzah in his doorway or places it behind the door, it is a “sakanah” (danger) and “there is no mitzvah.”(6) There are different explanations as to what this means. Rashi explains that if one does these things with the mezuzah he has not fulfilled his obligation, and is therefore in danger of being harmed by mazikin (supernatural forces) which a properly affixed mezuzah would guard against. Nemukei Yosef (7) and Rambam (8) also seem to be of the opinion that if a mezuzah is placed behind a doorway (i.e. on the inside of a house), the mitzvah has not been fulfilled.(9) The Shulchan Aruch rules in accordance with this view.(10)
The Tur, however, states that placing a mezuzah behind the door is not the ideal manner of performing the mitzvah, but one does fulfill his obligation by putting it there.(11) He understands the Gemara‘s statement “there is no mitzvah” to mean that the mitzvah min ha’muvchar (the ideal manner of performing the mitzvah) has not been achieved, but the mitzvah itself has been fulfilled.(12) The Rama seems to agree with the Tur.(13)
Accordingly, it seems that all would agree that the ideal place to affix the mezuzah is on the outside of a front door. However, later authorities recognized that sometimes there are dire circumstances that may justify placing a mezuzah on the inside of the house.(14) For instance, if there is a likelihood that a mezuzah will be stolen, damaged, or defaced, these authorities rule that one may place the mezuzah behind the door, on the inside of the house, as long as it is still affixed to the actual doorpost, not to the wall next to the doorpost. The basis for this is the ruling of the Tur and Rama that, although not ideal, placing the mezuzah behind the door also fulfills the mitzvah. (Some authorities even assert that there is in fact no disagreement between this opinion and that of Rashi and Nemukei Yosef.(15))
One question remains: Can this leniency be applied to a case where a homeowners’ association suddenly decides to remove mezuzos from the doorways of Jewish residents? (It may depend on several factors, including whether or not the residents are able to move to another dwelling where it will not be an issue and how great a loss one must incur in order to fulfill the mitzvah of mezuzah.)
Please share your opinion in the comments below!
(6) Menachos 32b.
(7) Menachos 5a (in the pages of the Rif).
(8) Hilchos Tefillin 5:8.
(9) See Sifsei Kohen (Shach) Yoreh Dei’ah § 289(3).
(10) Yoreh Dei’ah § 289(2).
(11) Yoreh Dei’ah § 289.
(12) See Beis Yosef, Yoreh Dei’ah § 289; see also Tosfos, Menachos 32b, s.v. Sakanah (implying that the mitzvah has been fulfilled, and that the sakanah is that one might bump his head on the mezuzah).
(13) Yoreh Dei’ah § 289(2).
(14) Divrei Chamudos (on the Rosh), Hilchos Tefillin § 15; Shach, Yoreh Dei’ah § 289(3); Chayei Adam § 15(21); Aruch HaShulchan Yoreh Dei’ah § 289(14).
(15) See Chayei Adam; Aruch HaShulchan.