Know Your Rights: Homeowners Associations and Housing Complexes Cannot Discriminate Based on Religion

For those of you who are (or have ever been) part of a homeowners association (HOA), you have likely dealt with your HOA in some form or another. Whether it was because, according to your HOA, your grass was too long, your vinyl siding needed to be power washed, or worse yet, your garden beds were not properly mulched, receiving such a notice can stir you up in surprising ways. How can an HOA hold so much power?

The good news is that an HOA’s power is limited in certain important ways. One such way is with respect to religion. As the ACLJ explains in our HOA memo, an HOA cannot discriminate based on religion. This applies equally to apartment complexes, condominiums, and other such housing complexes.

Specifically, our memo discusses the federal Fair Housing Act (FHA), which “makes it unlawful ‘[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 . . . religion . . . .’ 42 U.S.C. § 3604(b).”

We further note that “the FHA’s prohibition on religious discrimination also ‘covers instances of overt discrimination against members of a particular religion as well [as] less direct actions,’” as the United States Department of Justice (DOJ) has explained.

As discussed in our memo:

[I]f people are permitted to put decorations on their apartment doors, religious individuals should be able to put religious items or decorations on their doors, such as a Jewish mezuzah or a cross. Similarly, when condominiums or apartments have a common room that can be reserved by residents for private activities like parties or book studies, residents seeking to hold a Bible study or other private religious activity may not be discriminated against.

Federal Housing and Urban Development (HUD) Regulations similarly provide important safeguards. As referenced in our memo, HUD Regulations state:

“It shall be unlawful, because of . . . religion . . . to impose different terms, conditions or privileges relating to the sale or rental of a dwelling or to deny or limit services or facilities in connection with the sale or rental of a dwelling.” . . . These prohibited actions include, “[s]ubjecting a person to harassment because of . . . religion . . . that has the effect of imposing different terms, conditions, or privileges . . . or denying or limiting services or facilities in connection with the sale or rental of a dwelling.”

We also point out that “courts have reiterated that § 3604(b) of the FHA applies to ‘post-acquisition conduct’ including governance by homeowners’ associations.” In other words, the FHA’s protections, under 3604(b), are not left on the doorstep as owners enter their new homes. Bloch v. Frischholz, a case explained in our memo, illustrates this point well.

In Bloch, the plaintiff homeowners filed a lawsuit under the FHA against their condo association after it refused to permit the homeowners to display a mezuzah on their exterior doorpost. The Seventh Circuit ruled that “because the Blochs purchased dwellings subject to the condition that the Condo Association can enact rules that restrict the buyer’s rights in the future, § 3604(b) prohibits the Association from discriminating against the Blochs through its enforcement of the rules, even facially neutral rules.”

The ACLJ understands HOA issues well and has, in fact, provided legal assistance to homeowners who faced religious discrimination. Recently, for example, the ACLJ helped an individual who had a small 3.5 foot white cross in his front yard to which his HOA objected. The HOA insisted that he remove it because it was a prohibited “installation of improvements” under their community guidelines. The HOA also deemed the size of the cross to be problematic.

Interestingly, and as we explained, there was no prohibition regarding size or type of display in the community guidelines. In fact, other houses on his street had much larger displays: a bicycle with flower pots, an angel statue, and large rock and topiary displays.

In response to the HOA’s flawed decision, the ACLJ wrote a legal letter explaining that the FHA absolutely prohibits an association from applying regulations or guidelines to the owner’s use of their property in a manner that discriminates against religion. After receiving our letter, the HOA did the right thing and voted to approve the cross display with the understanding that it is religious discrimination to permit numerous other non-religious and similarly sized statues or displays and not this cross.

This was a win for the homeowner, the ACLJ, and most importantly, religious freedom.

We are dedicated to defending your constitutional rights. We have been providing assistance and legal representation, at no cost or charge, to people just like you for decades. If your rights are being violated in this area, please contact us at ACLJ.org/HELP.