Thanksgiving is almost here, and you can feel the holiday cheer is in the air. The recent overabundance of political signs is giving way to holiday decorations and glittering lights. Many communities are in the process of putting up white lights and oversized red bows. But, how many communities are setting up Christmas and Hanukkah displays, complete with nativity scenes and menorahs? Can they even do this considering the religious implications?
Luckily, we have some guidance from the United States Supreme Court to help associations differentiate between secular and religious symbols. In 1989, in County of Allegheny v. American Civil Liberties Union, the U.S. Supreme Court held that “the determination of whether decorations, including those used to commemorate holidays, are religious or not, turns on whether viewers would perceive the decorations to be an endorsement or disapproval of their individual religious choices.” The constitutionality of the object is judged according to the standard of a reasonable observer.
Although Christmas trees once carried religious connotations, the Court found that a Christmas tree, by itself, is not a religious symbol because “[t]oday they typify the secular celebration of Christmas.” The Court also noted that numerous Americans place Christmas trees in their homes without subscribing to Christian religious beliefs and that Christmas trees are widely viewed as the preeminent secular symbol of the Christmas holiday season.
In contrast, the Court stated that a menorah is a religious symbol that serves to commemorate the miracle of the oil as described in the Talmud. However, the Court continued that the menorah’s significance is not exclusively religious, similar to a Christmas tree, as it is the primary visual symbol for a holiday that is both secular and religious. When placed next to a Christmas tree, the Court found that the overall effect of the display to recognize Christmas and Hanukkah as part of the same winter holiday season, has attained secular status in our society. Therefore, we can conclude that a Christmas tree and menorah, side by side, are of a secular nature.
A reader once asked, “If our community displays a Christmas tree and menorah, doesn’t the Board have to allow a nativity scene and the Ten Commandments, too?” Interestingly, the answer is most likely, “no.” As to the Ten Commandments, in a 1980 case, Stone v. Graham, the U.S. Supreme Court held that that the Ten Commandments are undeniably religious in nature and that no “recitation of a supposed secular purpose can blind us to that fact.” The Court stated that the Ten Commandments do not confine themselves to secular matters (such as honoring ones parents or prohibiting murder), but instead embrace the duties of religious observers.
If a member of your community wants to include their religious symbol in the association’s holiday display, remember to consider the types of symbols already being displayed by the association as compared to the member’s request. Once your community displays a religious symbol, then there is a good chance your community will need to allow other requested religious symbols to avoid a claim of religious discrimination. Use the guidance from the U.S. Supreme Court’s cases to differentiate between a secular symbol and a religious symbol. The rules of kindergarten work best: treat everyone fairly and treat them as you would want to be treated.
Another important holiday decoration issue concerns whether the decoration constitutes a material alteration of the common elements or common area? Generally, unless a homeowners’ association’s declaration provides to the contrary, the homeowners’ association’s board of directors decides matters pertaining to material alterations. On the other hand, as to a condominium association, unless the terms of the declaration of condominium provide otherwise, seventy-five percent of the unit owners must vote to approve material alterations of the common elements.