Thou shalt not prohibit the display of religious ornaments without first carefully considering the many law and legal precedents related to freedom of expression.

With the sweep of his pen, on the eve of Passover 2006, Illinois Gov. Rod R. Blagojevich barred Illinois condominium associations from exercising architectural control over what residents can place on the exteriors of their front doors. According to the governor, “being able to display religious symbols is just as fundamental as being able to practice religious beliefs.” The legislation, which amended the Illinois Condominium Property Act, goes into effect on Jan. 1, 2007.

The new law stems from a long and emotionally charged dispute over the placement of a mezuzah—a small parchment scroll that observant Jews are required to display in the doorframes of homes, synagogues, and businesses—precipitated by a Chicago condominium association that tried to ban the display of religious symbols in common-area hallways. The sentiment behind the bill was summed up by its co-author, Illinois State Sen. Ira Silverstein, who told Editor & Publisher magazine that “the United States Constitution already protected these individuals who were so unjustly stripped of what they believed were their First Amendment rights.”

Angels in America

Just as the battle between “blue states” and “red states” rages throughout the country, we’re seeing increased debate over religious symbols in the public square, fueled by the ongoing struggle between the free exercise of religion and the separation of church and state. In June 2005, the U.S. Supreme Court issued two divergent opinions, both related to the Ten Commandments, that established a litmus test for when it’s appropriate to display religious symbols on public property—ruling in McCreary County, Kentucky v. ACLU that copies of the Ten Commandments posted on the walls of two county courthouses violated the separation of church and state because they sought to advance religion, and in Van Orden v. Perry that a granite monolith inscribed with the Ten Commandments on the grounds of the Texas State Capitol was constitutional because it advanced a secular purpose.

At the community level, there have been challenges to Nativity scenes at city hall, menorahs in public parks, and, in San Diego, a 50-year-old cross as part of a war memorial. And while recent history suggests a movement toward acceptance of religious expression and wider recognition of religious diversity—in the San Diego case, for example, 75 percent of voters approved a ballot initiative that transferred the land to the National Park Service, saving the cross—there still exists a widely held view that religious symbols have no place in the public arena.

The debate over public expression of religion isn’t confined to the town square. In common-interest developments across the country, the clash between governing documents and religious dogma—between our desire for architectural uniformity and aesthetic harmony and our natural inclination toward individual expression—seems inevitable. Unfortunately, recent court cases have offered few objective standards for determining whether a particular cultural practice or religious symbol violates an association’s documents. The Establishment Clause of the First Amendment suggests a “hands-off” approach when it comes to laws addressing religious practices, while state laws similarly forbid any rule or law that discriminates on the basis of religious beliefs.

But in an association, against this backdrop of constitutionally enshrined, unrestricted religious freedom is the mandate that every owner agrees to be bound by the covenants and rules that govern the community—including architectural standards. Does that include religious displays? Should it? Several recent high-profile cases offer mixed answers to those questions.

Foremost among them is the struggle over a sukkah—a temporary structure used by Jews during the eight-day Sukkot festival—that plagued the Fountain-wood Condominium Association, in New Haven, Connecticut, for years. The case began in 1999, when Fountainwood fined Susha and Sholom Alperowitz, deeply religious Orthodox Jews, for refusing to remove the sukkah they’d erected on their condominium patio. Fountainwood argued that its bylaws prohibited such a structure, while the Alperowitzes claimed that the sukkah wasn’t prohibited because it was situated completely within their patio dwelling space, which was categorized as a limited common area, and wasn’t a “visual impediment.”

This debate continued for some time. Each Sukkot, the Alperowitzes would put up their sukkah, then take it down at the end of the eight-day holiday. And each year, Fountainwood would cite them and assess a fine. Finally, the Alperowitzes filed a complaint with the Connecticut Commission on Human Rights and Opportunities. The dispute ended up in state court, resulting in a settlement in which Fountainwood’s board agreed to apologize to the Alperowitzes, pay $27,500 in attorney’s fees and other costs, amend the association’s rules to allow sukkahs to be built on patios and balconies, and attend sensitivity training.

The Fountainwood story isn’t unique. The sukkah was also the center of controversy in the 2002 New York Supreme Court case Greenberg v. Board of Managers of Parkridge Condominiums, which began when the Greenbergs—after reviewing their association’s governing documents—built a sukkah on their balcony, only to receive a letter from the board demanding its removal. The Greenbergs sought a meeting with the board but were put off for two months while the board discussed the issue without them. Ultimately, the board fined the Greenbergs $1,000. Two years later, the Greenbergs again erected a sukkah on their balcony, resulting in another $1,000 fine as well as denial of access to Parkridge’s pool and exercise room and the threat of more fines. The Greenbergs sued, and eventually the New York Supreme Court found that the board had exceeded its authority, noting that nothing in the association’s governing documents prohibited the placement of a sukkah—“or any similar item”—on the balcony.

Implicit in the Parkridge decision is the notion that if the governing documents don’t prohibit a particular object, it is allowed. This begs the question of whether it’s reasonable to expect a board to pass a rule prohibiting a specific religious practice in order to maintain control over the common elements. And if it does, wouldn’t that rule be challenged as discriminatory on its face? These judicial decisions may have placed community associations in a holy Catch-22.

Indeed, there are numerous instances where religious practices prevailed over an association’s governing documents, as written or applied by the board. In the 1998 case Matter of Macca v. Board of Managers of Primrose Lane Condominium, for example, owners were allowed to keep a statue of St. Jude outside their unit despite the board’s decision that it violated association bylaws. In this case, the board did nothing for six years, then notified owners that “shopping carts, banners, lawn ornaments, and religious statues must be removed.” The St. Jude statue, it seemed, was now an “obstruction of the common elements.”

During the resulting lawsuit, the court scrutinized the Primrose Lane board’s zeal to remove St. Jude from the common area, noting that the association’s governing documents didn’t specifically prohibit the statue. Like the Parkridge court, the Primrose Lane court didn’t allow the business judgment rule to protect the board’s decision. Instead, it substituted its own judgment for that of the board—whose attempt to remove the St. Jude statue was “the product of bad faith.”

That said, the court did acknowledge that a condominium owner relinquishes certain individual rights or subordinates them to the interests of the community as a whole. However, the statue of St. Jude was seen as a minimal intrusion of the common area. And, as in the Fountainwood and Parkridge cases, the court wasn’t willing to deprive the owners of their personal religious freedoms—especially when the board seemed to deviate from a strict interpretation of its association’s governing documents. The message from these cases is that unless a court can point to the specific religious item as expressly prohibited by the governing documents, it will find a way to permit the item as a minimal intrusion into—or a reasonable interference with—other owners’ use and enjoyment of the common areas.

The Mezuzah that roared

Each of these cases requires a careful balance between legitimate religious practices and appropriately prohibited conduct. Yet the opinions make no distinction between what may be a purely subjective ritual and a practice mandated by religious dogma. Instead, the limited judicial precedent available leaves association boards without the necessary standards to determine whether a particular architectural issue is based on mandated religious doctrine or merely a cultural preference. In other words, all you have to rely on is your association’s governing documents. But is it wise to leave to the imagination of whoever drafted your documents exactly what type of architectural deviation or spiritual obstruction should be specifically prohibited? Moreover, can you accept that, unless an object or practice is expressly prohibited in the governing documents, an unacceptable common-area architectural detail may become the protected expression of a religion about which you know very little, if anything at all?

Consider my experience with an owner living in a Riverside, California, condominium community. A strict follower of Feng Shui—an ancient Chinese study that deals with understanding the forces and powers that are continually around us with the hope of harnessing them and receiving good fortune—the owner took issue with a tree the association planted on a common-area path directly in front of her door. According to the owner, the placement of the tree blocked the “natural flow” and meant bad luck and misfortune. To this owner, Feng Shui was her religion. Initially, the board insisted on keeping the tree where it was originally planted. Before the association could consider relocating the tree a few feet to the right or left, the owner apparently dug it out in the middle of the night and discarded it. The board assessed the owner the cost of the tree and had it replanted—albeit a few feet to the right.

Similarly, consider the battle between a Hindu couple and the Rivermill Homeowners Association, in Lake Worth, Florida, over the placement of the family’s religious flag, or jhandi. The Persauds hung the tri-colored flag of red, peach, and yellow outside the front of their home. According to the Hindu religion, the jhandi is hung for the protection and well-being of the family. The religious custom re-quires the flag to remain for a year, at which time it’s replaced with a new flag. Last year, Rivermill, a community of 377 homes, voted to ban religious symbols from all homes except during the Christmas holiday. Because the jhandi is a religious symbol, the association ordered the Persauds to take down their flag or face a $100-a-day fine—although Rivermill did give them the option of hanging the jhandi in their back yard. But, standing on First Amendment principles and insisting that they shouldn’t have to hide their religion, the Persauds thus far have refused to move their jhandi.

A condominium owner named Lynne Bloch similarly has dug in her heels at Chicago’s Shoreline Towers after the association banned the placement of objects in all common-area hallways—including the mezuzah that Bloch and her now-late husband, Marvin, had positioned on their doorpost. Her protest started last year when, as part of a remodeling project, Shoreline Towers asked residents to take down all exterior objects from the building’s hallways. After the remodel, residents who re-hung their mezuzah on their door frames—according to the Chicago Jewish Star, 10 to 20 percent of Shoreline Towers’ population is Jewish—were told that association bylaws prohibited them. Shoreline Towers’ board, concerned about “hallway uniformity,” insisted that the ban was absolute. (Actually, the rule in question prohibited “mats, boots, shoes, or objects of any sort,” and didn’t specifically mention any religious items.) The Blochs, both Orthodox Jews, ignored the ban and returned their mezuzah to the exterior door frame.

The situation came to a head in June 2005, when Marvin Bloch died and Lynne—a former board member who has lived at Shoreline Towers for more than 30 years—returned from his funeral to find that the association had removed the mezuzah from her doorpost. What followed was a seemingly childish game between Shoreline Towers and Lynne Bloch, with the association removing the mezuzah and Bloch replacing it—all while she observed Shiva, the seven-day period of mourning her husband’s passing. Not that Bloch was the only target of the crackdown. Debra Gassman, another resident whose mezuzah was taken down, told the Jerusalem Post that the board instructed the staff that “no type of decoration would be allowed in the hallways and on the doors, including [mezuzahs].”

Gassman, Bloch, and other residents argued that the mezuzah isn’t a decoration but a practice required under Jewish law. “It’s not a decorative choice for religiously observant Jews,” Adam Schupack, of the Anti-Defamation League’s Chicago office, told the Chicago Sun-Times, “but indeed a religious obligation.” Despite these appeals, Shoreline Towers’ board refused to yield, so Bloch and Gassman filed religious-discrimination complaints with the Chicago Commission on Human Relations, the Illinois Department of Human Rights, and the Illinois attorney general. Eventually, the association reversed its ban on religious displays but later refused to guarantee that it wouldn’t be reinstated. As a result, Bloch and Gassman have filed complaints in federal court.

The public manner in which the Shoreline Towers dispute was played out, and the seemingly callous way in which the board enforced its exterior-decoration ban during Lynne Bloch’s period of mourning, didn’t sit well with area politicians. In December 2005, the Chicago City Council adopted a provision making it a violation of the city’s Fair Housing Ordinance—subject to a $500 fine—to “interfere with the religious observances or practices” of building tenants. This means that condominium and cooperative associations in Chicago are barred from prohibiting residents “from placing or affixing a religious sign, symbol, or relic on the door, door post, or entrance” of their units, although boards are free to enact reasonable rules to avoid property damage or imposing an undue hardship on neighbors.

Later, Bloch’s plight made its way to the Illinois General Assembly, which unanimously passed the bill that Gov. Blagojevich signed into law this past April. “The bill is so general that it protects every religious group,” co-author Ira Silverstein said in Chicago Jewish Community Online, “whether you want to put a mezuzah on the door or a crucifix or anything else.” And therein may lie the problem—the phrase “anything else.”

Higher power

Does the Illinois law make a condominium board or architectural review committee the final arbiter over what is or is not a religiously mandated object or part of a required religious observance? Are you comfortable leaving your board to interpret religious dogma and determine if your covenants must give way to the Ten Commandments? Moreover, does your board want to assume this role when even our courts have expressed extreme reluctance to do so?

In theory, it should be easy to determine those symbols or practices that are religiously mandated. But you can imagine a scenario in which a resident clings to a newly dis-covered spiritual belief in a desperate attempt to overcome your association’s claim of an architectural violation. This is not to suggest that personal, subjective religious beliefs have no place within the common areas of our communities. However, without an objective standard for determining when a particular religious display will be permitted within a community’s walls, associations run the risk of allowing subjective religious beliefs to interfere with evenhanded enforcement of the governing documents. Worse, we place board members at risk of engaging in religious discrimination.

While it’s unclear whether the Illinois law signals a trend to be followed in other states, its enactment suggests a growing acceptance of the points of view expressed in the Parkridge, Fountainwood, and Primrose Lane decisions—that is, when you buy a home in a common-interest community and, on paper, submit to be governed by the community’s CC&Rs, you don’t necessarily agree that they should prevail over your right to the expression of state or federally guaranteed freedoms.

The developing body of law illustrates that as our communities become more socially, culturally, and religiously diverse, our residents cling to their own cultural and religious identities. In turn, their desire for freedom of religious and cultural expression deepens. Judicial decisions suggest that our community leaders may need to be more forward-thinking in meeting the unique needs of residents. This may be as simple as developing reasonable rules and guidelines for religious observance and expression within your community—before you’re compelled to do so by unwelcome legislation that interferes with your association’s ability to govern itself.

Written by Matt D. Ober

Matt D. Ober Esq., CCAL, is a Fellow of the College of Community Association Lawyers and a Partner at Richardson|Ober|DeNichilo.