By Deborah Goonan, Independent American Communities
Forty-Five Words of Freedom, photo of display from the First Amendment Center, Washington, D.C. (Deborah Goonan)
Does the First Amendment still apply in the U.S. these days?
Apparently not in some of America’s housing communities.
HOAs can create restrictions and rules against display of religious symbols
For example, Lake Sandra homeowners association in Hialeah, Florida, says a homeowner must remove a lawn statue of Our Lady of Charity, regarded as a religious saint by Cuban-American immigrants such as Amarilis Aponte.
Here’s the recent report:
Remove Our Lady of Charity Statue
(WSVN) – Our Lady of Charity is the patron saint of Cuba, a saint a little girl prayed to so her mother could be released from Fidel Castro’s prison. Now a South Florida homeowner’s association is forcing her to remove the statue from her yard. Can they do that? It’s why she called Help Me Howard with Patrick Fraser.
Read more, see VIDEO:
It’s important to note that the attorney consulted by WSVN, Howard Finkelstein, does not really address First Amendment rights. Instead, he focuses on the fact that the HOA seems to be selectively enforcing their rules.
From the transcript:
Well, Howard, does Amarilis have to take down the statue of Our Lady of Charity?
Howard Finkelstein, 7News legal expert: “Yes, an association can ban statues, even religious statues. But the problem with this association is, they’re allowing some neighbors to keep their statues in their front yard. That’s what the law calls ‘selective enforcement.’ It’s illegal, and since other neighbors have their statues, Amarilis can have her religious statue in her front yard.”
So, reading between the lines, an HOA can restrict your First Amendment rights, as long as they consistently restrict them for every other member.
You may wonder, how can that be?
Well, it’s because, according to HOA industry legal experts, the Declaration of Covenant, Conditions, & Restrictions (CC&Rs) of Association Governed Housing is considered to be a contract between private parties. In the eyes of the law, if you choose to live in an HOA, whether you’ve read and understood all the rules or not, you are obligated to abide by them.
State laws set virtually no limits on the types of restrictions written into CC&Rs, and no one reviews these documents to verify that they are Constitutional. So, quite often, the CC&Rs can enable your HOA to limit your rights, including religious rights.
What about publicly funded housing?
But the erosion of Constitutional rights in the U.S. goes deeper than CC&Rs and Association-Governed Housing.
Some affordable housing complexes funded by the U.S. Department of Housing and Urban Development (HUD), are now limiting religious expression on common property, based upon their interpretation of Fair Housing Laws.
Mercy Village, a senior housing project in Joplin, Missouri, is one example.
Residents were recently ordered to take down Christmas decorations – including a Nativity Scene – from a second-floor common space, because, according to the Fair Housing Institute ( a consultant based in Georgia), as quoted by the Joplin Globe (Residents in Joplin housing complex unhappy with ban on religious decorations, By Emily Younker, Dec 15, 2016):
…decorations such as a Christmas tree or a Santa Claus are not of a religious nature and not a violation of the Fair Housing Act. But Nativity scenes, crosses, “happy birthday Jesus” signs and stars of David are religious rather than secular and “should be avoided in public areas of a housing facility,” it said.
The institute advises housing providers to keep common areas free of religious objects to avoid the perception that they would favor tenants of a certain religion over tenants of other religions or those who are nonreligious.
However, some legal experts disagree on this interpretation of our First Amendment. Also interviewed for the Joplin Globe, Dee Wampler, “a Springfield attorney who works with Christian legal groups and other organizations,” explained that,
…the view that there is a complete separation of church and state in America is a “misconception,” and noted that the courts have also warned against “hostility” to religion.
“The Supreme Court said the celebration of Christmas, including the Nativity, is constitutional,” Wampler said. “That law is still good, and there has never been a case that has ruled that Christmas is unconstitutional.”
Ironically, Mercy Village was established by the Catholic Church. It’s situated directly adjacent to Catholic Health Initiatives’ St. John’s Mercy Hospital.
Yet voluntary residents of a faith-based organization are being told to not to express their religious values and heritage in common gathering spaces at the housing complex, simply because they receive public funding to achieve their mission.
The sad truth is, wherever people share living quarters and public spaces, there will never be full agreement and perfect harmony, even for minor issues such as holiday decoration choices. But should that justify banning all traces of religious expression from public view?
Don’t “forty-five words of freedom” grant everyone in the U.S. the right to express religious views to the same extent as political opinions?
Something to think about this holiday season. Perhaps also an important issue for the new HUD Director and Congress to consider in the new year.