By Ryan D. Poliakoff / Published December 2017
We live in a condominium in a Florida country club community. We have a master association and a separate condominium association. The clubhouse is always decorated for the holiday season with many traditional Christmas trees and garlands. In the past, there has also been a manger in the club entry. Last year, we requested a menorah be included in the clubhouse to recognize our holiday as well. There are several families of the Jewish faith living here. We were told that the request needed board approval. It was subsequently either denied or shelved. Since a new clubhouse was being built, we did not pursue it further. Now, the clubhouse is almost ready, and we would like to know if we have any recourse. We were told by a fellow member that the clubhouse is private and therefore discrimination laws don’t apply. As owners and members, we helped pay for the clubhouse and would still like a menorah included in the decorations.
First, we need to consider that there are a number of different parts of your community that may be governed by different laws. Let’s talk about your “clubhouse” first. In some large communities, the country club is an entirely independent corporate entity that owns its own property, and where the homeowners in the community become members of this independent club (either voluntarily or mandatorily pursuant to the master association covenants). If you belong to a club that is entirely independent, that club is not subject to the type of discrimination laws that would affect its holiday decorations.
In contrast, HOAs and other mandatory membership community associations are considered “housing providers,” and therefore they are subject to the Fair Housing Act. The Fair Housing Act prohibits discrimination in housing on the basis of certain categories, one of which is the religion of the resident. That is, you cannot treat home seekers or residents differently on the basis of their religion, which includes the practice or non-practice of religion, or the practice of non-mainstream religions. If a housing provider were to represent certain religions in its holiday display, while excluding others, that favoritism may be viewed as discrimination, as it tends to make persons celebrating other religions feel unwelcome in the community or may suggest that the community favors a particular religion.
The key, however, is that many decorations that you might cons-ider “religious” are not actually considered religious by courts and the Department of Housing and Urban Development, and therefore they do not violate fair housing laws. A Christmas tree, for example, has been deemed to be a secular symbol and so is a picture or statue of Santa Claus. A nativity scene, in contrast, is probably religious, and so it would be a problem if a manger were displayed in the common areas. A menorah, like a Christmas tree, is considered a secular holiday symbol, rather than a religious symbol, and it may also be displayed without running afoul of the Fair Housing Act. Courts evaluate whether a particular decoration may be viewed as an endorsement or disapproval of an individual’s religious choices based on how that decoration or symbol would be viewed by a reasonable person. If the community is going to begin decorating with overtly religious symbols, such as a crucifix or a Star of David, it would then likely have to allow anyone to post their holiday display on request in order to avoid a claim of discrimination pursuant to the Fair Housing Act.
So, with that background, let’s review the situation that you described. If, in fact, your club is an independent entity that is not linked to the master association (other than through the membership of many or all of the residents of the community), then it likely can display whatever decorations it wants, as it is not subject to fair housing laws. If, instead, your clubhouse is part of and owned by the master association, it is clearly subject to the fair housing laws, and so the HOA would need to ensure that any religious displays, if allowed at all, are given equal treatment with displays requested by other religions. I think the nativity scene that you referenced would pose a problem for the HOA, and as a result many associations do not display such scenes unless they are also willing to display a full host of competing religious symbols. But, given that trees and garlands are viewed as secular, the HOA could display these items without also being obligated to display other “secular” items, such as a menorah (we can debate whether a menorah is truly a secular symbol of the holiday, but that’s the general feeling in the law, so that’s what we need to go with in evaluating your question.)
Ryan D. Poliakoff
Partner of Backer Aboud Poliakoff & Foelster
Ryan D. Poliakoff is a Partner of Backer Aboud Poliakoff & Foelster and serves as general counsel to condominiums, homeowners associations, and country clubs throughout South Florida. He is the co-author of New Neighborhoods—The Consumer’s Guide to Condominium, Co-Op, and HOA Living. In addition to representing associations, he is a frequent contributor at seminars and workshops for attorneys and board members, and he has written hundreds of articles for magazines and newspapers throughout the United States. He can be reached at firstname.lastname@example.org. For more information about his firm, visit www.bapflaw.com.