Displaying Religious Symbols
Beginning January 1, 2020, community associations cannot prohibit the display of religious items on entry doors and door frames. (Civ. Code § 4706.) A “religious item” is defined to mean an item displayed because of sincerely held religious beliefs. (Civ. Code § 1940.45.) Religious symbols that qualify are the Jewish Mezuzah and the Christian cross. It is unlikely that Christmas wreaths and lights would qualify. Associations can, impose restrictions if the display:
- Threatens the public health or safety.
- Hinders the opening or closing of any entry door.
- Violates any federal, state, or local law.
- Contains graphics, language or any display that is obscene or otherwise illegal.
- 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.
Maintenance. 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. (Civ. Code § 4706(b).)
Mezuzah
The most common religious symbol on door frames is the Jewish mezuzah (Hebrew for doorpost). It is a small rectangular case (made out of metal, stone, wood, glass, or ceramics), which Jews attach to the doorpost of their homes. It is placed on the right side, upper third of the doorpost. This is usually done within 30 days of moving into a new home and signifies the sanctity and blessing of the Jewish home. The mezuzah contains a piece of parchment rolled into a scroll, which has a prayer in Hebrew, such as:
Deuteronomy, 6:4-9: Hear, O Israel, the Lord is our God, the Lord is one. You shall love the Lord, your God, with all your heart, with all your soul, and with all your resources. And these things that I command you today shall be upon your heart. And you shall teach them to your children, and you shall speak of them when you sit in your house and when you go on the way, when you lie down and when you rise up. And you shall bind them as a sign upon your arm and they shall be an ornament between your eyes. And you shall write them upon the doorposts of your house and on your gates.
Deuteronomy, 11:13-21: And it will be that if you hearken to my commandments that I command you today, to love the Lord, your God, and to serve him with all your hearts and all your souls. And I will place rain for your land in its proper time, the early and the late rains, that you may gather in your grain, your wine, and your oil. And I will provide grass in your field for your cattle, and you will eat and you will be satisfied. Watch yourselves, lest your heart be seduced and you turn astray and serve other gods, and prostrate yourselves to them. And the wrath of God will be upon you, and he will restrain the heaven and there will be no rain, and the ground will not yield its produce, and you will be lost quickly from upon the good land that God gives you. And you shall place these words of mine on your hearts and on your souls, and you shall bind them as a sign upon your arms and they shall be ornaments between your eyes. And you shall teach them to your children to discuss them, when you sit in your house and when you go on the way, and when you lie down and when rise up. And you shall write them upon the doorposts of your house and upon your gates, in order to prolong your days and the days of your children upon the good land that God swore to your fathers to give them, like the days of Heaven over earth.
Holiday Decorations - Reasonable Restrictions
Reasonable Regulations. Homeowner associations can control holiday lighting for religious purposes, provided such control is exercised through neutral, generally applicable laws that only incidentally burden the exercise of religion. Manning v. Powers, 281 F.Supp.3d 953. However, if the association's rules treat any comparable secular activity more favorably than religious exercise, such rules may not be considered neutral and generally applicable and may, therefore, be subject to strict scrutiny under the Free Exercise Clause. We the Patriots United States v. Conn. Office of Early Childhood Dev., 76 F.4th 130. Any rules that treat secular activities more favorably than religious exercise may be subject to strict scrutiny under the Free Exercise Clause. Subject to the above, boards may adopt reasonable rules limiting when owners can start decorating and how long decorations can remain up after the holiday has passed.
Common Area Displays. Associations can decorate the common areas for religious holidays, such as Christmas and Hanukkah. The First Amendment's "separation of church and state" does not apply to homeowner associations. In addition, boards should allow members to decorate their homes and balconies for the holidays.
Religious Discrimination. A 2024 case heard by the Ninth Circuit involved Christmas decorations. The Plaintiff (Morris) hosted a large Christmas event outside his home and wanted to continue the tradition when he and his wife moved to a new neighborhood governed by an association. The board drafted a letter to Morris expressing concern because some residents were avowed atheists, and their Christmas display would attract riff-raff like those by WalMart. Before it was sent, the letter was toned down to eliminate references to atheists and riff-raff. Instead, it expressed concerns for residents who were not Christians. In addition, the board held a meeting painting the Christmas event negatively, and residents voted against allowing it. Morris sued, claiming religious discrimination. A jury found for Morris but the district court granted judgment for the association on some issues. Morris appealed. A Ninth Circuit panel affirmed the district court's grant of judgment as a matter of law on Morris' claim that the association tolerated threats and harassment targeting Morris. The court found sufficient evidence that the HOA's conduct interfered with Morris's rights and was motivated by religious animus. (Morris v. W. Hayden Estates.)
Sukkahs
A sukkah is a hut used by religious Jews to symbolize the temporary dwellings Israelites lived in during their forty years of wandering in the desert before reaching the promised land. During the week-long holiday of Sukkot (the Feast of Tabernacles or Festival of Booths), the sukkahs are used for prayer, reading the Torah, eating, and sleeping.
Common Area Restrictions. Since most CC&Rs prohibit temporary structures, prohibit alterations to the common areas, and do not allow nuisances, a sukkah would violate the CC&Rs. Constitutional guarantees of religious freedoms do not override CC&R restrictions--the guarantees protect against governmental interference, not private restrictions. Accordingly, there is no constitutional right to build sukkahs in the common areas.
Exclusive Use Common Area. Under the U.S. Fair Housing Act, the California Fair Employment and Housing Act, and the Unruh Civil Rights Act, associations cannot discriminate in housing based on one’s religion. Associations would likely be required to reasonably accommodate a request to temporarily erect sukkahs on exclusive use balconies and patios.
Case Law. There are no California cases on this issue, but there are two in New York. Even though out-of-state cases have no precedence in California, they can be instructive. Both cases involved an Orthodox Jew, Robert Greenberg, who sued his condominium association over his sukkah. In the first case, Greenberg built a sukkah in the common area. In the litigation that followed, the court sided with the association. It found that a sukkah in the common areas violated the CC&Rs. The court commented that Greenberg could satisfy his religious obligations by using a sukkah erected by friends or relatives. Eight years later, Greenberg constructed a sukkah on his balcony. The association again intervened, and litigation followed. (Greenberg v. Parkridge.) This time, the court sided with Greenberg because his sukkah was on exclusive use common area.
Recommendation: Boards should allow Jewish families to erect sukkahs on their exclusive use common area balconies and patios. Associations can regulate sukkahs by limiting their construction to the start of the holiday and requiring their removal the day after the holiday ends. Boards can also require that they be constructed so as not to damage the common areas.
Santeria Animal Sacrifice
QUESTION: We have a tenant conducting Santeria ceremonies which include the sacrifices of goats, chickens and roosters. On trash days we have seen blood coming from trash bags running into the storm drains. What is the best way to stop these practices?
ANSWER: Santería means “Way of the Saints.” For those who are unfamiliar with Santería, it's a religion similar to voodoo. It originated in Cuba and combines elements of African paganism, Roman Catholicism and ritualistic animal sacrifice. Adherents worship Catholic saints and use Catholic symbols in their practices, including baptism. (I suspect the Catholic Church is troubled by the usurping of their symbols and practices into a pagan religion.) See Wikipedia and The BBC for more information.
Case Law. Although there are no cases involving Santeria and homeowner associations, there are two cases involving cities. In 1993 the City of Hialeah in Florida passed an ordinance to prevent the practice of Santería in the city. The ordinance prohibited the killing of animals in a public or private ritual not for the primary purpose of food consumption. The Church of Lukumi Babalu Aye sued. Based on the First Amendment's free exercise of religion, the United States Supreme Court declared the ordinance unconstitutional and the church was allowed to conduct animal sacrifices in its church building. (Lukumi Babalu Aye v. City of Hialeah.) In 2009 the City of Euless, Texas passed an ordinance aimed at stopping the practice of Santería in a residence by prohibiting the torture and killing of animals in residential homes. The Court of Appeals ruled that Merced, a Santería priest, was acting within his Constitutional rights when he sacrificed goats and other animals as part of his home-based rituals. The court noted that home sacrifice is "a crucial aspect of Santería, without which Santería would effectively cease to exist.” (José Merced v. City of Euless.)
Santeria in Homeowners Associations. The cases described above both involved governmental interference with the free exercise of religion. In each case the court found that the object of the laws was to to suppress religiously motivated conduct which is why the courts struck them down. Neither case addressed private restrictions, such as those imposed by homeowners associations. Accordingly, it is possible that CC&R restrictions against any (not just religious) activity that causes a nuisance could withstand legal challenge. Just as private organizations can restrict free speech, they could conceivably restrict religious practices that negatively impact other members (see Bible studies). Recommendation: Because this is uncharted territory, boards should consult legal counsel when faced with these kinds of situations.
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