Bachman v. St. Monica's Congregation

• Decision Date: 20 June 1990
• Docket Number: No. 89-2807,89-2807
• Parties: Michael BACHMAN and Barbara Bachman, Plaintiffs-Appellants, v. ST. MONICA'S CONGREGATION, John T. Donovan, Philip Damiano, and William F. Judge, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1259

902 F.2d 1259

16 Fed.R.Serv.3d 1353

Michael BACHMAN and Barbara Bachman, Plaintiffs-Appellants, v. ST. MONICA'S CONGREGATION, John T. Donovan, Philip Damiano and William F. Judge, Defendants-Appellees.

No. 89-2807.

United States Court of Appeals Seventh Circuit.

Argued Feb. 21, 1990.

Decided May 23, 1990.

Rehearing Denied June 20, 1990.

Lawrence M. Shindell, Douglass H. Bartley, Shindell & Bartley, Milwaukee, Wis., for plaintiffs-appellants.

Eric J. VanVugt, Michael Collard, Minahan & Peterson, Milwaukee, Wis., for defendants-appellees.

Before POSNER and EASTERBROOK, Circuit Judges, and MOODY, District Judge. ^*

POSNER, Circuit Judge.

A Jewish couple, whose suit charges discrimination in housing in violation of 42 U.S.C. Secs. 1981 and 1982 (Reconstruction-era statutes forbidding racial discrimination) and 3604 (the Fair Housing Act), appeals from a judgment for the defendants--a Catholic parish, its priest, and others--entered upon a jury verdict. The parish owned a house that it decided to sell, and the Bachmans put in an offer. The parish then briefly withdrew the house from the market to see whether any of the parishioners wanted to buy it. None did. The house went back on the market but was sold to a Catholic couple who were not members of the parish. The price this couple paid was higher than the price the Bachmans had offered; but there is disagreement over whether, when contingent provisions relating to financing and the sale of a previous home are factored in, it was a worse deal for the parish.

When the Bachmans had first expressed interest in the house, the real estate agent handling the matter for the parish had asked them whether they were parish members and had expressed the belief that the parish would prefer to sell the house to a member. The Bachmans said no, they were not members of the parish--they were Jews. The real estate agent testified that he did not mention this to the priest, and the priest testified that he did not know the Bachmans were Jewish or even guess they were, since the only "Bachman" he had known previously was a Catholic. The priest denied wanting to sell the house to a member of the parish or to a Catholic; his explanation for the parish's action was the higher price offered by the Catholic couple.

The Bachmans do not argue that the jury's verdict is unreasonable, but only that the instructions were in error. They particularly object to the following instruction: "Giving some preference in the sale of the house to members of St. Monica's Congregation or members of the Roman Catholic faith does not alone constitute ancestral discrimination." Some background is necessary to make sense of the instruction and of the argument against it. The awkward phrase, which appears in no statute, "ancestral discrimination" is an effort to convey in an inoffensive manner the dual character of anti-Semitism. There is religious anti-Semitism, typified by the attitude of the medieval Roman Catholic Church, and racial anti-Semitism, typified by Hitler. The one objects to Jews because of their religion, the other objects to Jews because they are descended from Jews, even if they are converts to other faiths. Nowadays the use of the term "race" is pretty much limited to the three major racial divisions--Caucasoid, Negroid, and Mongoloid--but historically the term was used much more broadly, to denote groups having common ancestry or even a common culture (or, as often, both). And in this sense Jews are members of a distinct race. The civil rights statutes enacted in the period of Reconstruction, in guaranteeing all persons the rights of white citizens, have been held to protect all groups that are "races" in the traditional loose sense, such as Jews and Arabs. Shaare Tefila Congregation v. Cobb, 481 U.S. 615, 107 S.Ct. 2019, 95 L.Ed.2d 594 (1987); St. Francis College v. Al-Khazraji, 481 U.S. 604, 107 S.Ct. 2022, 95 L.Ed.2d 582 (1987); Malhotra v. Cotter & Co., 885 F.2d 1305, 1308 (7th Cir.1989). It is this rather complex concept and tradition that the instruction in question sought to convey by the term "ancestral discrimination," and while the term may be awkward there is no suggestion that it misled the jury. In making clear that the protection of the statute is not limited to observant Jews, the term actually helped the Bachmans by eliminating any need for them to prove that they are observant.

Also in the background of the instruction is a provision in the Fair Housing Act that allows a religious organization both to "limit ... the sale ... of dwellings which it owns or operates for other than a commercial purpose to persons of the same religion," and to "giv[e] preference to such persons." 42 U.S.C. Sec. 3607. The defendants had sought summary judgment on the basis of this provision, but when the judge denied their motion (on grounds that are not clear) they decided not to rely on the provision at trial. They may have feared that while exonerating them from the charge of violating the Fair Housing Act, it would inculpate them of violating sections 1981 and 1982, which contain no similar defense, at least explicitly. There was also the possibility that the parish might be found to have owned the house for "a commercial purpose"--a term in section 3607 that has never been construed. At all events, the priest testified that he gave no preference to members of the parish or to other Catholics beyond what was implicit in taking the house off the market just long enough to give the parishioners a chance to bid on the house. This was a preference, but it had no causal relation to the Bachmans' loss of the deal, since no parishioner stepped forward.

The Bachmans object to the giving of this instruction that, they say, allowed the defendants to defend their conduct on the basis of a policy that the defendants denied following. The objection misconceives the instruction's purpose. It is true that the defendants denied giving a preference to Catholics. By thus forswearing any reliance on section 3607 they opened the way for the Bachmans to argue--as they did--that the denial was false, that the defendants did prefer Catholics, and that this preference violated the statutes that the defendants were accused of violating. They were arguing in effect that to discriminate in favor of Catholics is to discriminate against Jews. This may be a good argument under the Fair Housing Act once the defense in section 3607 is stripped away, because section 3604 expressly forbids discrimination on the basis of religion, and to give a preference to Catholics is to discriminate against non-Catholics, to discriminate in other words on religious grounds; if this were not so, there would be no need for section 3607. But, we hold in this case of first impression, it is not a good argument under sections 1981 and 1982. Those statutes forbid unequal treatment based on race, and while for this purpose Jews constitute a race, it is not the case that every preference based on religion is a discrimination against a race. Suppose a Bahai organization refused to sell property to persons not of the Bahai faith. It would...