Community Fellowship or Losing Your Religion? Religious Freedom in Homeowners Associations

Introduction

The American Founding Fathers unmistakably voiced their conviction that the government had no business getting involved in religion.  John Adams simply declared “nothing is more dreaded than the national government meddling with religion.”  And Thomas Jefferson maintained that, if religious practices weren’t harming other people, the government shouldn’t be involved: “It does me no injury for my neighbor to say there are 20 gods or no God. It neither picks my pocket nor breaks my leg.”

With this in mind, the First Amendment to the U.S. Constitution famously enshrines freedom of religion and protects believers and non-believers alike from governmental interference in private spiritual matters.  Under the First Amendment, housing laws or ordinances that interfere with a religious practice—or promote one religion over another—are forbidden as unconstitutional.  Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 534-40 (1993).  That means, for example, a local government can’t pass an ordinance prohibiting display of religious symbols or preventing religious observation.

However, the First Amendment comes with an important caveat.  It only applies to “state action;” that is, action by the government.  Brentwood Academy v. Tennessee Secondary School Athletic Association, 535 U.S. 971 (2002). The powers of homeowners associations are derived from their declarations of covenants, which are essentially contracts.  And the protections of the First Amendment do not extend to contractual matters between two private parties.  Shelley v. Kraemer, 334 U.S. 1 (1948).  And that means the First Amendment doesn’t preclude an HOA from enacting covenants barring members of certain religions from a neighborhood. 

Critically, though, the First Amendment is not the only law protecting religious freedom. 

Up until the 1968 passage of the Fair Housing Act (“FHA”), homeowners associations had a lot of leeway to interfere with religious practices or promote particular denominations.  But now that the FHA is firmly entrenched in the national lexicon, there are significant limitations on the power an HOA has to restrict religion.  The FHA, though, doesn’t apply quite so strictly to HOAs as the First Amendment applies to government.

Religious Freedom under the FHA.

The Fair Housing Act, 42 U.S.C. §3604(b), makes it unlawful for “housing providers” (including community associations) “[t]o discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, familial status, or national origin.”  In plain terms, this means an HOA can’t limit someone’s access to, or use of, a home based on his or her religion.

But that doesn’t mean that any action by an association that affects a member’s religious life is prohibited.  In general, a rule or covenant that is “facially neutral” (i.e., doesn’t expressly favor or disfavor any religion) can be permissible even if it happens to interfere with a member’s religious practice.  Boodram v Maryland Farms Condo, 16 F3d 408 (CA 4 1994). 

In Boodram, the association’s requirement that balconies be kept clear did not violate an owner’s rights under the FHA, even though the covenant prevented display of certain symbols the plaintiff argued were required by his religion.  Rather than an example of religious discrimination, the Boodram Court viewed the balcony rule as “an altogether typical and reasonable attempt by a condominium association to ensure an attractive and uniform appearance.”  Unlike in cases involving disability discrimination, HOAs do not have any obligation to make “reasonable accommodations” for religious activities hindered by a board policy if the policy itself is not discriminatory.  Hack v. President and Fellows of Yale College, 16 F. Supp. 2d 183 (D. Conn. 1998). 

Of course, just because an HOA restriction is “facially neutral” does not mean it’s permissible under the FHA.  A facially neutral rule can still violate the statute if there is evidence of an underlying intent to discriminate (e.g., selective enforcement against one religious group) or if the rule results in a disparate impact on a religious group that effectively amounts to discrimination.  Bloch v Frischholz, 587 F3d 771 (CA 7 2009).

Discriminatory Intent.

Discriminatory intent can be more or less obvious.  If an HOA board proposes a covenant for the overt purpose of keeping members of a certain religious groups out of the neighborhood, the association obviously intends to discriminate—even if the covenant itself doesn’t mention religion.  See LeBlanc-Sternberg v. Fletcher, 67 F.3d 412, 424 (2d Cir.1995).  Or if, for instance, association rules prohibit hanging items in doorways, but the board only enforces the restriction against certain religious displays, a discriminatory intent is likely present.  See, Bloch, supra.

Significantly, a discriminatory purpose doesn’t have to be the only reason a policy is adopted—it just has to be a “motivating factor.”  See, e.g., Arce v. Douglas, 793 F.3d 968, 977 (9th Cir. 2015).  An occupancy limitation that serves a safety purpose, but which a board intentionally drafts in a way that prevents certain religious gatherings, could provide evidence of discriminatory intent.

Disparate Impact.

Facially neutral policies can also give rise to FHA claims if they result in a “disparate impact” on a protected group.  Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc., 135 S.Ct. 2507 (2015).  A covenant or restriction has a disparate impact when it results in an adverse effect on a protected group that is so disproportionate as to essentially amount to discrimination.  Id. Practically speaking, a covenant or policy has a disparate impact 0n religion if enforcing it results in religious segregation or a substantial restriction on the availability of housing to members of a specific religious group.  Hallmark Developers, Inc. v. Fulton Co., Ga, 466 F.3d 1276, 1286 (11th Cir. 2006).

To establish an FHA claim of religious discrimination against an HOA based on a disparate impact, a plaintiff first needs to show that the association’s policy or action actually results in a disproportionately adverse impact on a certain religious group.  Savanna Club Worship Serv., Inc. v. Savanna Club Homeowners’ Association, Inc., 456 F.Supp.2d 1223, 1231-32 (S.D. Fla. 2005).  If the disproportionate impact is present, the association has the opportunity to demonstrate that it has a “legitimate non-discriminatory business reason” justifying its rule.  Id.  Even then, a plaintiff can still prevail by showing that the supposed legitimate reason is merely a pretext.  Id.

HOAs and the Religious Freedom Restoration Act.

In 1993, Congress passed the Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb, et. seq, for the purpose of further solidifying religious freedom against governmental intrusions.  Under RFRA, freedom of religion takes precedence over any laws interfering with religious practice unless, in passing the law, the legislature advanced a compelling governmental purpose and used the least restrictive means of doing so. 

As with the First Amendment, RFRA is generally limited to governmental action or, in limited circumstances, private parties that are effectively acting in place of the government (though that usually does not include HOAs).  Unlike the First Amendment, RFRA only applies to the federal government, though a substantial number of states have enacted state versions of the law. See, City of Boerne v. Flores, 521U.S. 507, 117 S.Ct. 2157 (1997). 

Although RFRA does not impede actions by associations, the law potentially affects religious freedom within HOAs because an argument can be made that RFRA limits enforcement of the FHA against certain associations.  Specifically, if an HOA is itself an expressly religious organization, there could potentially be situations in which action by the association would violate the FHA but be protected by RFRA.  See, Burwell v Hobby Lobby Stores, Inc, 134 S.Ct. 2751 (2014).  For example, a religiously affiliated association’s covenant against divorced occupants would probably violate the FHA by discriminating based on familial status but might be protected by RFRA.  This theory has yet to be fully fleshed out by the courts.

Pro and Anti-Religion Environments.

Under the FHA, religious-based discrimination by a housing provider can include policies that favor or disfavor religion generally.  This means that, in general, an association cannot restrict access or benefits to individuals who either observe a religion or do not observe any religion at all.  Likewise, an association cannot require members to participate in religious activities or limit access of members who participate in religious activities.

For example, in Woods v. Foster, 884 F. Supp. 1169 (N.D. Ill. 1995), the court held that a housing provider violated the FHA by making attendance at religious services a prerequisite to housing access.  Or, in LeBlanc-Sternberg v. Fletcher, 67 F.3d 412 (2d Cir. 1995), the court ruled that a blanket prohibition on religious services of any kind within homes was religious discrimination under the FHA.  Thus, policies that are either pro or anti-religion potentially violate the FHA, even if they do not single out any specific religion, denomination, or practice.

Under Section 3607(a), a very narrow, limited exemption exists for explicitly religious organizations that do not own properties for commercial purposes.  The exemption permits qualifying religious organizations to limit the sale, rental, or occupancy of dwellings to members of the organization’s religious group, as long as the organization is not acting commercially (i.e., not owning the property for a business purpose).  It’s important to note that what constitutes a “religious organization” under this section is defined strictly.  So, the Catholic Church can limit occupancy of church-owned convents to Catholic nuns, but a country club affiliated with the Knights of Columbus can’t decide to only sell properties it owns to other Catholics.  United States v. Columbus Country Club, 915 F.2d 877 (3d Cir. 1990)

Religious Activities Within Units.

As noted above, an association’s express ban on religious services within homes amounts to impermissible religious discrimination under the FHA.   LeBlanc-Sternberg v. Fletcher, 67 F.3d 412 (2d Cir. 1995).  But there’s more of a gray area when an otherwise acceptable covenant has the effect of limiting religious activities. In a nutshell, an association can enforce a facially neutral covenant against a member of a religious group, even when enforcement limits religious observation, but only if the HOA has a valid, non-pretextual purpose for the covenant it is enforcing.

A case from the Texas Appeals Court, Tien Tao Ass’n, Inc v Kingsbridge Park Cmty Ass’n, Inc, 953 SW2d 525, 532 (Tex App, 1997), provides a good illustration of this principle in action.  In Tien Tao, the unit owner was a religious organization that conducted religious services within the home.  The association, though, sought to enforce several covenants against the organization, which would effectively preclude further use of the home for services.  The HOA argued that religious services amounted to a “nonresidential use” and a nuisance; that the number of people attending the services resulted in violations of the community’s parking rules; and that landscaping changes made in furtherance of the organization’s religious purpose breached the applicable architectural guidelines.

In turn, the religious organization argued that, if the HOA was permitted to enforce those covenants, the religious services would be effectively prohibited, amounting to a violation of the FHA.  After a thorough, case-specific review of the underlying facts, the Tien Tao Court decided in favor of the HOA, relying on “evidence of a high volume of visitors, traffic congestion, noise, and eyesores on the property.”  Though noting that the restrictions would limit the religious services, the court found that the HOA had amply demonstrated that the homeowner’s use of the property for religious services was in fact creating a nuisance.  “That the nuisance stemmed from a gathering of a religious nature does not exclude it from coverage by the restrictions.”

The key take-away from Tien Tao is that, for an HOA to limit religious activities within a unit, it must rely on a reasonable, facially neutral covenant that is not religion-specific and would be applied equally to any other activity or homeowner.  Or, as the court put it, “the repercussions of Tien Tao’s activities were indistinguishable from those that could ensue from any nonresidential use.”  However, had the HOA relied on a covenant that had even a partial purpose of limiting religious activities, the homeowner would probably prevail.  See, e.g., 2922 Sherman Avenue Tenants’ Assn. v. District of Columbia, 444 F. 3d 673, 682 (D.C. Cir. 2006) (applying disparate treatment analysis under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) to FHA). 

Religious Activities in Commons Areas.

Commons areas can provide a convenient meeting place for members of an HOA.  When religious services are held in commons areas, though, associations need to take care to ensure that their policies do not result in claims of religious discrimination under the FHA.  Importantly, the statute does not just prohibit religious discrimination relating to buying and renting of homes, but also “in the provision of services or facilities in connection therewith.” Thus, an HOA policy that restricts a member’s access to community facilities based solely upon the member’s religious affiliation is unlawful.

The general rule, as set forth in Savanna Club Worship Serv, Inc v Savanna Club Homeowners’ Ass’n, Inc., 456 F Supp 2d 1223, 1232 (SD Fla, 2005), is that a policy disallowing any religious services within a commons area can be acceptable if implemented uniformly for a legitimate purpose, but a restriction applying only to certain religions or religious beliefs likely runs afoul of the FHA.

In Savanna Club, the HOA denied the plaintiff religious group permission to use HOA facilities for religious activities.  Crucially, though, the HOA similarly disallowed all other homeowners from holding religious services in commons areas.  Because the HOA barred all religious services in its facilities but did not impede the homeowner’s right to practice religion or access facilities for other purposes, the Court found the rule compliant with the FHA.  As noted by the Savanna Club Court, “the fact that it is more desirable or easier for Club members to practice their religion in [the HOA’s] common areas does not make their current or future homes unavailable as contemplated by the FHA.”

The Savanna Club opinion suggests that the court may have reached a different result if only certain religious services were excluded from commons areas, or if the HOA’s policy effectively denied the plaintiff access for purposes other than religious services.

Religious Symbols and Holiday Lights.

Limitations on homeowners’ displays of religious symbols are reviewed under the standard generally applicable to FHA claims.  That is, if an HOA action or policy is openly discriminatory against a certain religion, it violates the statute.  So, if an association permits the display of certain religious symbols, but not others, its policy is unlawful.

On the other hand, a “facially neutral” policy that happens to limit display of religious symbols is acceptable as long as there is no evidence of an underlying intent to discriminate or a disparate impact on any protected group. Thus, in Boodram v Maryland Farms Condo, 16 F3d 408 (CA 4 1994), the fact that an association’s policy happened to prevent display of Plaintiff’s Hindi symbol in his balcony was not sufficient by itself to support an FHA claim. The court emphasized that there was no evidence that the policy was designed to discriminate based on religion, and the plaintiff wasn’t completely barred from displaying the symbol—he just couldn’t display it in his balcony the way he wanted to.

If some evidence of underlying discriminatory intent is present, such as selective enforcement, a facially neutral restriction on religious displays may nonetheless violate the FHA.  In Bloch v. Frischholz, 533 F.3d 562 (7th Cir. 2008), for instance, the association’s prohibition on hallway displays did not overtly discriminate against any religious group.  However, based on evidence that the association enforced the restriction so as to prevent display of the plaintiff’s Jewish symbol, but did not enforce the restriction against other residents who displayed nonreligious symbols, the court held that the plaintiff’s FHA case could go forward.

Christmas lights can amount to a religious display, though secularized holiday displays including reindeer, Frosty the Snowman, and the like are less likely to be considered religious.  See, e.g., County of Allegheny v. ACLU, 492 U.S. 573 (1989).  Even when Christmas decorations have an undeniably religious character, limitations on their display can be permissible if legal issues beyond the FHA are present.  A policy that singles out Christmas lights but does not limit other similar lighting displays likely violates the FHA.  However, if a particular display breaches a reasonable, facially neutral covenant that promotes a genuine interest of the community and is enforced uniformly, no FHA liability is likely.  In Osborne v Power, 319 Ark 52, 53; 890 SW2d 574, 575 (1994), restriction of the plaintiff’s “massive commercial lighting display” did not amount to religious discrimination because the display created a nuisance by attracting numerous viewers and causing excessive noise and light in a quiet neighborhood.

Similarly, restriction of a plaintiff’s Christmas program did not offend the FHA when the display breached neutral covenants and the HOA board’s enforcement was motivated in part by a desire to avoid the appearance of a special exception for Christmas displays.   Morris v. West Hayden Estates First Addition Homeowners Association, Inc., No. 2:2017cv00018 - Document 118 (D. Idaho 2019)

Although the FHA does not absolutely guaranty a right to display religious symbols, several states have enacted express carve-outs providing additional protection of religious displays against community association intrusion.  In Texas, for example, displays of religious symbols in an association member’s doorway cannot be restricted by HOAs, as long as the display is motivated by sincere religious belief and is not patently offensive or a threat to public safety.  Tex. Prop. Code § 202.018(b).  Illinois has adopted a similar law guarantying the right to display religious symbols on the front door of a homeowner’s dwelling.  754 ILCS 605/9(c)(1)

Recourse for Homeowners.

A homeowner encountering problems with an HOA over questions of religious freedom has a few potential avenues of recourse.  Depending on the situation, it is sometimes best to begin by simply approaching a member of the board of directors and discussing the problem.  You may find that the board is sympathetic and a compromise may be possible

HOA boards have a duty to uniformly and thoroughly enforce covenants because inconsistent enforcement can result in an effective waiver of the association’s right to enforce the covenant in the future.  See, Liebler v. Point Loma Tennis Club, 40 Cal. App. 4th 1600, 1610-11 (4th Dist. 1995); Prisco v. Forest Villas Condominium Apartments, Inc., 847 So 2d 1012 (Fla.App. Dist.4, 2003).  However, an association may have a protocol allowing exemptions or temporary waivers under certain conditions.  If so, submitting a formal exemption request to the board may resolve the issue.

If an association’s actions amount to religious discrimination under the FHA, more serious measures may be called for.  Under the law, an aggrieved individual has the option of filing an administrative complaint with HUD or a civil suit in federal district court.  42 U.S.C. §§3610, 3613.  HUD has regional offices in all fifty states, so you don’t need to go to Washington to file a religious discrimination complaint with HUD.  Awards in FHA cases can include actual and punitive damages, injunctive relief, and attorney’s fees and costs.  42 U.S.C. §3613(c).

Most states also have fair housing laws that allow for civil suits in state court.  In some cases, a state court action may be more convenient, or state law may provide additional protections beyond what is granted by the FHA. 

Religious liberty is an exceptionally complex area of the law, so it is almost always a good idea to consult with an experienced attorney before taking any legal action, whether under the FHA or otherwise.