Holiday cheer is in the air. Thanksgiving and Hanukkah have passed. Christmas is almost here. It’s time to decorate. You know what that means, right? Right! It’s time again to re-visit holiday decorations in the context of condominium and homeowners’ associations. HOAs are indeed fortunate and good tidings are abundant because unless the HOA’s declaration provides to the contrary, the HOA’s board of directors decides matters pertaining to material alterations. Comparatively, for condominium associations, unless their declaration provides to the contrary, seventy-five percent of the members must approve material alterations. So, while an HOA can decorate their common areas to their heart’s content, it’s not always so easy for a condominium association to follow suit. Some condominium associations argue that since day one their holiday decorations are displayed from Thanksgiving through New Years and, therefore, the failure to display the decorations would also be a material alteration upon which a member vote would be required.
While some holiday decorations are of a secular nature, others are clearly religious symbols. 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.” This result is due to the United States Supreme Court’s guidance as to which objects are “religious” and which items are not. Christmas trees and menorahs are considered “holiday symbols,” meaning secular. On the other hand, Nativity scenes and the Ten Commandments denote religious symbolism. If the association displays “holiday symbols” then most likely the board would be on solid footing to deny the member’s request. But, if the board is already displaying other religious symbols, then, to avoid a claim of religious discrimination, all members who request displaying their religious symbols should be allowed to do so as well.
In a different case, the United States Supreme Court held that, “the determination of whether decorations are used for religious purposes, turns on whether the viewers would perceive the decoration(s) to be an endorsement or disapproval of individual religious choices.” Thus, the constitutionality of the decoration in question is judged according to the standard of the “reasonable observer.”
Even though Christmas trees once carried religious connotations, the Supreme Court found that a Christmas tree, by itself, is not a religious symbol. “[T]oday [Christmas trees] typify the secular celebration of Christmas,” the Supreme Court said. 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 Supreme 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, 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 “recognizes that both Christmas and Hanukkah are part of the same winter holiday season, which has attained a secular status in our society.” We learn from their logic that a menorah display, without a Christmas tree nearby, is a religious object, but when displayed together, the menorah is secular.
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. Remember, to avoid claims of religious discrimination, too. Once your community displays a religious symbol, it will need to allow other requested religious symbols. Use the guidance from the 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. In the meantime, please pass the latkes and eggnog.
HAPPY HOLIDAYS!