Here come the holidays, and here come the decorations. But not every decoration is only a decoration … some decorations are just decorations but other things can be considered religious displays or religious symbols, which means that the things that owners put out can mean different things to different people. Also, some things are not merely decorative in nature; rather, they are either required by the religion or are part of a religious practice or tradition. So how do we handle all of this in a community association?
Decorations
To begin, with respect to holiday decorations, there appears to be a legal distinction between a mere holiday decoration and a religious symbol. According to the United States Supreme Court (when evaluating the constitutionality of Christmas and Hanukkah displays on public property in Pittsburgh under the Establishment Clause (Fourteenth Amendment)), a Christian nativity scene is a religious symbol and a Christmas tree is not. A Jewish menorah is a religious symbol, but is not solely “religious” in nature. To wit, when a menorah is put next to a Christmas tree, it is secular in nature. Whether or not a holiday decoration is actually a religious symbol or religious display depends on whether an observer would believe the decoration is an endorsement or disapproval of an individual religious choice, to be deemed by a “reasonable observer” standard. See County of Allegheny v. American Civil Liberties Union, 492 U.S. 573 (1989).
A frequently-encountered issue in community associations involves when decorations may be put out and removed. Again, care must be taken to ensure that the association is not prohibiting or otherwise stifling the display of a required religious symbol in enacting or enforcing any covenants, restrictions, policies or rules or regulations relating to holiday decorations. Once this is determined to be appropriate, the association can pass reasonable rules and regulations, subject to and in accord with the community’s recorded restrictions and covenants, related to the type, placement, size and permitted time periods related to holiday decorations.
Religious Symbols and Religious Displays
Disputes involving religious symbols and religious displays are increasing in frequency in community associations. A frequently litigated issue involves the installation of mezuzahs. A mezuzah is a small religious object that an observant Jewish person installs on the doorpost or doorframe outside of their residence in fulfillment of their religious obligations (note: this is not just a “seasonal” installation, it remains throughout the year). To these folks, mezuzahs are not “decorative” in nature; one cannot reside inside of a residence where a mezuzah is not installed on the outer doorpost or doorframe.
Currently, there are six states (Connecticut, Florida, Illinois, Rhode Island & Texas and California) that prohibit restrictions on the placement of mezuzahs or other required religious objects on outer doorposts or doors, as indicated below (important note: there are local municipalities and local governments around the country that also prohibit such restrictions, this should therefore be evaluated in your jurisdiction when undergoing an analysis of this issue).
Connecticut Public Act No. 12-113, Section 6. “No person may prohibit or hinder the owner, lessee or sublessee of a condominium unit from attaching to an entry door or entry door frame of such unit an object the display of which is motivated by observance of a religious practice or sincerely held religious belief.
Subsection (a) of this section shall not prohibit the enforcement or adoption of a bylaw that, to the extent allowed by the first amendment to the United States Constitution and section 3 of article first of the Constitution of the state, prohibits the display or affixing of an item on an entry door or entry door frame to the owner’s, lessee’s or sublessee’s unit when such item: (1) Threatens the public health or safety; (2) hinders the opening and closing of an entry door; (3) violates any federal, state or local law; (4) contains graphics, language or any display that is obscene or otherwise patently offensive; (5) individually or in combination with each other item displayed or affixed on an entry door frame has a total size greater than twenty-five square inches; or (6) individually or in combination with each other item displayed or affixed on an entry door has a total size greater than four square feet.”
Florida Statutes, 718.113(6). “An association may not refuse the request of a unit owner 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.”
Illinois Law, 765 ILCS 605/18.4(h). “. . . [N]o rule or regulation may impair any rights guaranteed by the First Amendment to the Constitution of the United States or Section 4 of Article I of the Illinois Constitution including, but not limited to, the free exercise of religion, nor may any rules or regulations conflict with the provisions of this Act or the condominium instruments. No rule or regulation shall prohibit any reasonable accommodation for religious practices, including the attachment of religiously mandated objects to the front-door area of a condominium unit.”
Rhode Island General Laws, Chapter 34-37-5.5. “Except as otherwise provided by this section . . . an association of unit owners, as defined in § 34-36.1-1.03 (hereinafter “property owners”); may not enforce or adopt a restrictive covenant or otherwise prohibit a unit owner or tenant from displaying or affixing on the entry to the unit owner’s or tenant’s dwelling one or more religious items, the display of which is motivated by the unit owner’s or tenant’s sincere religious belief.”
Texas Property Code 202.018. “Except as otherwise provided by this section, a property owners’ association may not enforce or adopt a restrictive covenant that prohibits a property owner or resident from displaying or affixing on the entry to the owner’s or resident’s dwelling one or more religious items the display of which is motivated by the owner’s or resident’s sincere religious belief.”
California Civil Code 1940.45.
(a) Except as otherwise provided by this section, a property owner shall not enforce or adopt a restrictive covenant or any other restriction that prohibits one or more religious items from being displayed or affixed on any entry door or entry door frame of a dwelling.
(b) To the extent permitted by Article 1, Section 4, of the California Constitution and the First Amendment to the United States Constitution, this section does not prohibit the enforcement or adoption of a restrictive covenant or other restriction prohibiting the display or affixing of a religious item on any entry door or entry door frame to a dwelling that:
(1) Threatens the public health or safety.
(2) Hinders the opening or closing of any entry door.
(3) Violates any federal, state, or local law.
(4) Contains graphics, language or any display that is obscene or otherwise illegal.
(5) Individually or in combination with any other religious item displayed or affixed on any entry door or door frame that has a total size greater than 36 by 12 square inches, provided it does not exceed the size of the door.
(c) As used in this section, the following terms have the following meanings:
(1) “Property owner” means all of the following:
(A) An association, as that term is defined in Section 4080.
(B) A board, as that term is defined in Section 4085.
(C) A member, as that term is defined in Section 4160.
(D) A landlord, as that term is defined in Section 1940.8.5.
(E) A sublessor.
(2) “Religious item” means an item displayed because of sincerely held religious beliefs.
SEC. 2.
Section 4706 is added to the Civil Code, to read:
4706.
(a) Except as restricted in Section 1940.5, no governing document shall limit or prohibit the display of one or more religious items on the entry door or entry door frame of the member’s separate interest.
(b) If an association is performing maintenance, repair, or replacement of an entry door or door frame that serves a member’s separate interest, the member may be required to remove a religious item during the time the work is being performed. After completion of the association’s work, the member may again display or affix the religious item. The association shall provide individual notice to the member regarding the temporary removal of the religious item.
In all other states, it would seem that the application of the Fair Housing Act would generally limit (or prohibit) restrictions on the installation of mezuzahs or other required religious objects, based either on prohibiting a required religious display but allowing secular items to be displayed or by not permitting a member of one religion to display an item while allowing a member of another religion to do so. While community associations are currently not required to provide owners with “reasonable accommodations” for religious purposes under the Fair Housing Act, association leaders should nonetheless elicit the sage advice of counsel before making any decision related to the issue.
Of course, where there is evidence that a [seemingly] facially neutral restriction adopted by an association related to the removal of objects (name plates or signs) from the exterior of homes was really pretext for intentional discrimination based on religious prejudice (i.e., to prohibit mezuzahs), a violation of the Fair Housing Act would occur. (See Bloch v. Frischolz, 533 F. 3d 562 (7thCir. 2008), aff’d in part, rev’d in part, 587 F. 3d 771 (7thCir. 2009)).
Another religious symbol or display issue that has been litigated involves the Sukkah, which is a [temporary] outdoor structure that may be used for meals and sleeping during the Jewish holiday of Sukkoth. A condominium association in New York prohibited the placement of a Sukkah on a limited common element balcony restricted to use by the owners under the community’s Bylaws. Upon review, the court held that the Board exceeded its authority because nothing in the association’s Bylaws prohibited a Sukkah from being placed on a balcony (as opposed to being improperly placed and prohibited on a condominium common area, as was the court’s holding some eight years prior in a case litigated by the same parties). Greenberg v. Board of Managers of Parkridge Condominiums, 2000 W.L. 35921423 (N.Y. Sup. Ct., September 1, 2000, unpublished), aff’d., 294 A.D.2d 467 (2d Dept. 2002). Therefore, something which may specifically prohibited by the governing documents for a non-discriminatory reason need not be allowed by the association, but disallowing something that is not specifically prohibited by the governing documents may be deemed to be improper by a court.
As it relates to religious symbols and religious displays and fair housing discrimination, it is important to note that the United States Department of Housing and Urban Development (“HUD”) has interpreted the Fair Housing Act to include two types of discrimination: disparate treatment and disparate impact (also known as “discriminatory effect”). Disparate treatment involves discrimination due to different treatment, i.e., treating someone differently because of religion would be included. These claims involve allegations of intentional bias.
Disparate impact, on the other hand, involves discrimination by different impact, i.e., when a neutral policy or procedure has a disproportionately negative impact on a protected class. Disparate impact claims shift the focus away from “intent” to one of result.
In 2013, HUD issued a final rule entitled “Implementation of the Fair Housing Act’s Discriminatory Effects Standard” (Federal Register, Vol. 78, No. 32, Friday, February 15, 2013). This final rule provides that if a practice has a “discriminatory effect,” HUD or a private plaintiff can establish liability under the Fair Housing Act even if a facially neutral practice has no discriminatory intent. In 2015, the United States Supreme Court held that disparate impact claims are cognizable under the Fair Housing Act (see Texas Department of Housing and Community Affairs (TDHCA) v. Inclusive Communities Project, 135 S.Ct. 2507 (2015)). This case is now the law of the land as it relates to making disparate impact claims under the Fair Housing Act. What this means for associations is that although an association may not intend to discriminate against a class or group of people through a policy or practice, a violation of the Fair Housing Act may still be found if the policy or practice has a disproportionally negative impact on a protected class – and this would include religious symbols and religious displays.
It would appear that claims brought under a theory of disparate impact are a growing phenomenon and this theory will likely be utilized in future cases involving religious symbols and religious displays, as the display of religious symbols and religious displays, by default, generally only involves one protected class of people (i.e., members of one religion that requires or otherwise utilizes the religious symbol or religious display) and not other people.
To wit, in Philadelphia, a case with disparate impact allegations was recently filed in federal court (Tripathi v. Murano Condominium Association, Case No. 2:18-cv-01840-JP (U.S. Dist. Ct., E.D. Pa., May 3, 2018)). The case involved a Hindu condominium owner who wanted to hang a toran, a decorative object, in his doorway. Doing so contradicted the association’s rules, which at the same time specifically permit mezuzahs. The matter appears to have settled, as it was dismissed, and as such, the interpretation and application of claims brought under a disparate impact theory remain unclear.
Finally, when faced with a “holiday decoration” situation in an association, care must be taken to properly evaluate the issue in order to determine if it is instead a religious symbol or religious display in order to plan the proper course of action.
– Edward Hoffman, Jr., Esq.
* Content for this Blog post is primarily based upon the published written work of the author, notably, “The Rights Approach: The First Amendment can create chaos for community associations if they don’t understand the law”, published in the November/December 2018 issue of Common Ground, a publication of the Community Associations Institute.