Liberty Institute Helps Dallas Orthodox Synagogue Defeat Neighbors' Attempt to Close It

Rabbi Yaakov Rich wasn't trying to initiate a battle for religious liberty when he moved his living-room synagogue into the Highlands of McKamy neighborhood in Far North Dallas; he was simply trying to fulfill the spiritual needs of his tiny flock while keeping them from having to walk a half-marathon every Sabbath day. The only other Dallas area congregation that hews to Rich's particular flavor of Orthodox Judaism is Ohr HaTorah Shul, seven-plus miles to the south. Plus, another Orthodox group had already encircled the Highlands of McKamy inside a ritualistic ring of PVC pipe and wires, creating a two-square-mile eruv, inside of which believers are allowed to carry things -- house keys, medication, children, etc. -- outside of their homes on the Sabbath.

Rich had established Congregation Toras Chaim in 2007. For its first four years, CTC met in a small house on Hillcrest Road, just outside the boundaries of the Highland of McKamy homeowners association. In 2011, it moved a few blocks away to Rich's living room, inside the HOA boundaries. At the end of the summer of 2013, it moved another couple of blocks to 7103 Mumford Court into a suburban-style brick home recently purchased by Rich's friends Judith and Mark Gothelf.

Congregation Toras Chaim counts a membership of around 30 families. It hosts prayer services -- three times a day, every day-- that are attended, on average, by a dozen or so worshipers. A small handful of others come to study. There are five or six cars at any given time, three parked in the back driveway, the rest in front of the home. Sabbath worship -- Friday evenings and Saturdays -- are busier, with 20 or 30 attendees, all of whom arrive on foot because driving is forbidden.

Complaints, mainly about traffic and parking, probably followed the synagogue to Mumford Court, but they immediately became much more acute since the new location was directly across the street from David Schneider, a software developer and active member of the homeowners association who occasionally files pro se lawsuits against neighbors who violate HOA rules. True to form, he filed a lawsuit, asking a Collin County judge to shut down the synagogue on the grounds that it violated his HOA's deed restrictions.

On paper, Schneider's argument seems reasonable. The Highlands of McKamy is a single-family neighborhood, a fact that is codified not only by city zoning but also in the voluntary covenants signed by each and every homeowner. A synagogue, clearly, is not a single-family home. He is, as he put it in court Wednesday morning, simply "trying to enforce a contract (i.e. the HOA covenant) that was voluntarily entered into by Judy and Mark Gothelf."

But Schneider's case is riddled with soft spots, the largest being the existence of laws (the federal Religious Land Use and Institutionalized Persons Act and its parallel state law in Texas, the Religious Freedom Restoration Act) and a consistent string of court decisions protecting churches and religious groups from zoning laws and restrictive covenants. And whereas Schneider could have waged a credible pro se legal fight against whatever legal help a congregation of 30 families could afford to hire, taking a synagogue to court provoked the intervention of attorneys from the Liberty Institute, the Plano-based religious rights group, and Haynes and Boone, a powerful international law firm. Schneider's counter-move -- getting himself elected president of the Highlands of McKamy HOA and convincing the organization to hire a lawyer and join his lawsuit -- has apparently inspired bitter feelings among his neighbors, judging by the lawsuit one neighbor filed against him and the rest of the board and the intervention in the CTC case by several other homeowners demanding that the suit be dropped.

The Liberty Institute was particularly aggressive in its attack on Schneider. Not only did it ask that his case be dismissed under RFRA and RLUIPA, it accused him and the HOA of selectively enforcing deed restrictions to discriminate against a religious group, allowing a swim school and a couple of group homes to operate in the neighborhood but attacking an Orthodox Jewish community. In one instance, in an apparent attempt to evidence Schneider's disdain for Judaism, the Liberty attorneys dug up a 60-page hermeneutical paper Schneider penned a decade ago (for fun, apparently) in which he lays out his belief in the "documentary hypothesis," which holds that the Torah was synthesized from multiple parallel narratives. The CTC's defense returns to more secular ground when it points to the shed in Schneider's backyard as evidence of his "unclean hands." Since it violates the same deed covenants as the synagogue supposedly does, what grounds does he have to bring a lawsuit?

But the ad hominem attacks and sophisticated legal arguments turn out to be superfluous, since Schneider and his allies quickly cede the moral high-ground to the congregation. Here's Rabbi Rich testifying at an early hearing on the impact of the injunction Schneider was requesting:

Asking the activity to stop would be similar to asking a person to stop eating. Let me explain what I mean.

You see, we believe that there are physical needs and there are spiritual needs, and just like our bodies need nourishment every day, our souls need nourishment every day. That's our prayer and our Torah study.

And if our members were asked ... that they could not take part actively in Torah study or prayer it would individually be a terrible disaster for those individuals and force people to have to relocate and immediately shut down the congregation, without question."

And here are representative snippets from depositions given by those most directly affected by the synagogue, Schneider and his immediate neighbors on Mumford Court:

One day, a huge pile of dirt appeared on the property that was visible from the street. One time, a window air-conditioning unit, which is unscreened, appeared in the living room window.

I have two Labrador retriever dogs. What it does, they start barking. It triggers my neighbors' dogs; they start barking, which wakes up my twins, [who] are 17 years old...

Well, when you have -- you know, we have a total of five cars. We've got an extra car if one's in the shop. And we have to -- you know we can get three cars in front, but if the kids have any friends and they're [the synagogue] having a meeting, sometimes they [the kids' friends] have to park farther down in the cul-de-sac.

Just this Sunday, when I was trying to turn into the Court after going on a hunting trip, there was a young lady trying to push a baby carriage across the street, and I had to stop and let them go. [This guy goes on to complain about having to stop to let a blind man cross the street.]

This is a residential neighborhood for single families, and the congregation wants to use it as a synagogue, or have used it like a synagogue, and that starts the ball rolling, so to speak. It's like a domino effect. They do it and everybody else will come moving in and not only affect the integrity of this neighborhood but the property values of each and everybody's home in the entire neighborhood.

This is a recurring theme -- the presence of a synagogue decreasing property values. It's on this theory that Schneider was claiming $50,000 worth of damages. Someday, he explained, he might want to sell his house. He fears that a lot of potential buyers won't want to live right next to a synagogue.

The final substantive hearing in the case (the parties are still squabbling over attorney's fees) occurred Wednesday morning before Collin County District Judge Jill Willis. It lasted about 15 minutes before Willis issued a terse ruling granting Congregation Toras Chaim's motion for summary judgment under RFRA and RLUIPA, meaning that worshipers will be allowed to continue meeting there unmolested by their neighbors or the courts.

Outside the courtroom in front of a bank of TV cameras, Rich declared victory. "I'm so unbelievably grateful," he beamed. He thanked the Liberty Institute for going to bat for the congregation. "To be able to walk to the synagogue is the most important thing."

Schneider, meanwhile, stuck to his guns. "All I want to see is a residential neighborhood," he said. He was noncommittal about whether he plans to file an appeal, but he expressed confidence that the issue won't divide the neighborhood. The lawsuit has been contentious, but the neighborhood is "in the process of healing, and hopefully everyone can go on being happy neighbors." What role Schneider will play in the healing is an open question. The HOA's annual meeting is on February 8, at which a faction of neighbors is expected to attempt to end his presidency.

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