In 1993, the federal government enacted the Religious Freedom Restoration Act (“RFRA”). The purpose of the RFRA was to allow a person to avoid complying with any law that interfered with the exercise of their religious freedom unless there was a compelling governmental interest behind the law and the least restrictive means of furthering that compelling governmental interest was utilized. In City of Boerne v Flores, 521 US 507 (1997) the United States Supreme Court held that the RFRA could not be applied to the states, although it has subsequently been upheld as constitutional as applied to the federal government. Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 US 418 (2006). Accordingly, after City of Boerne v Flores, approximately twenty (20) states enacted a version of RFRA . Sixteen (16) states, including Michigan, proposed RFRA legislation during the 2015 legislative session.
As exemplified recently in Indiana, the enactment of the RFRA by the states has been extremely controversial. Proponents of state RFRA legislation argue that individuals should not be forced to take action that is contrary to their religious beliefs. Detractors of RFRA legislation argue that it provides a license to discriminate and erodes civil rights. This article will explore the current landscape of the federal and state law that is applicable to the exercise of religious freedom in community associations and then discuss the potential impact that the Federal RFRA and the proposed Michigan Religious Freedom Restoration Act, Senate Bill No. 4 (2015), may have on Michigan community associations.
The Federal Fair Housing Act
42 U.S.C. 3604(b) makes it unlawful “[t]o discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, familial status, or national origin.” In interpreting the Federal Fair Housing Act, courts have typically upheld facially neutral bylaws that have interfered with a co-owner’s exercise of the religious freedom. In Boodram v Maryland Farms Condo, 16 F3d 408 (CA 4 1994), the Court upheld a bylaw preventing balcony storage, even though a Hindu co-owner argued that it interfered with the placement of a Jhandee (flag) that he was compelled to fly based upon his religion. The court reasoned that the bylaw provision was “an altogether typical and reasonable attempt by a condominium association to ensure an attractive and uniform appearance.” Similarly, in Savanna Club Worship Serv., Inc v Savanna Club Homeowners’ Ass’n, 456 F. Supp. 2d 1223 (S.D. Fla. 2005), the Court upheld an exclusion of all worship services in common areas because all faiths were treated the same.
However, other courts have recognized that the enforcement of seemingly neutral rules could give rise to a Fair Housing Act violation if the rule was intended to discriminate or had a disparate impact on religious beliefs. In Bloch v Frischholz, 587 F3d 771, 783 (CA 7 2009), the Shoreline Towers Condominium Association adopted a rule that barred the placement of “mats, boots, shoes, carts or objects of any sort” outside a co-owner’s door. The Association later interpreted the rule to disallow a mezuzah (a Jewish religious symbol). The Court allowed Bloch to sue the association for violating her religious freedom. The Court held that a claim for violating the Fair Housing Act could be established in two different ways. First, the Court held that Bloch could pursue a theory of discriminatory intent. While the rule itself was neutral, the Court reasoned that discriminatory intent could be demonstrated as the association ordered the removal of the mezuzah, but allowed other tables and coat racks to remain in place, which demonstrated a selective interpretation and/or enforcement of the rule.
Second, the Court held that while Bloch could not pursue a theory of discriminatory impact, that theory was another way a Fair Housing Act violation could be established. For example, a condominium association may establish a rule that co-owners must present a photo ID to enter the building so the security guard can determine their identity. However, such a rule may have a disparate impact on Muslim women that wear a burka that do not show their face in public. It should be noted that the United States Supreme Court is currently considering whether the disparate impact theory is still viable in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc. On January 15, 2015, the Supreme Court heard oral argument and an opinion is expected before the end of the summer. It is this author’s opinion that the Supreme Court will likely do away with the disparate impact theory and instead require actual proof of religious discrimination, based upon intent, to establish a Fair Housing Act violation.
Michigan’s Elliot Larsen Civil Rights Act
In Michigan, MCL 37.2505 forbids a condition, restriction or prohibition that limits the use or occupancy of real property based on “religion, race, color, national origin, age, sex, familial status, or marital status.” In interpreting MCL 37.2505, the Michigan Court of Appeals upheld a condominium association’s enforcement of its bylaws that required the timely removal of holiday decorations. Specifically, in Pointe of Woods Condo Ass’n v Doel, Unpublished Opinion of the Michigan Court of Appeals, Docket No. 236617, 2003 WL 1558086 at *1 (March 25, 2003), the Court held that:
The rule adopted by plaintiff’s board of directors is phrased in neutral terms to apply to all holidays. “The purpose of the … [c]ivil [r]ights [a]ct is to prevent discrimination against persons based on their membership in a certain class….” Bryant v Automatic Data Processing, Inc, 151 Mich.App 424, 430; 390 NW2d 732 (1986). Defendants have failed to show that plaintiff imposed a condition, restriction, or prohibition that limits the use of real property on the basis of religion, race, color, or national origin. MCL 37.2505.
While there is relatively little case law interpreting MCL 37.2505, it appears that the Michigan Courts, similar to the Federal Courts, will likewise uphold reasonable bylaws and rules, which are facially neutral, so long as there is no discriminatory intent behind the bylaw or rule. This would also be true for most other states that have some form of a civil rights statute or something expressly in their condominium act that prevents discrimination.
Michigan’s Proposed Religious Freedom Restoration Act
Michigan Senate Bill No. 4 (2015) is very similar to the federal RFRA, which bars the federal government from intruding on a person’s religious liberty unless it can prove a compelling interest in imposing a burden on religious freedom and demonstrate that it has done so in the least restrictive way. Specifically, Senate Bill No. 4 reads as follows:
(1) Except as provided in subsection (2), government shall not substantially burden a person’s exercise of religion, even if the burden results from a rule of general applicability
(2) Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to that person’s exercise of religion in that particular instance is both of the following:
- In furtherance of a compelling governmental interest.
- The least restrictive means of furthering that compelling governmental interest.
(3) A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in any judicial or administrative proceeding and obtain appropriate relief, including equitable relief, against government.
Based upon the above language, it is important to note that it is unlikely that either the federal or any state version of the RFRA would apply to private disputes between an association and a co-owner, unless there was some form of government action involved. While both versions of the statute define the term “government” as a person acting under “color of law”, the United States Supreme Court has held that action by a private party, pursuant to statute, does not alone qualify a person as a “state actor” or acting under the color of law and that “something more” would be required. Lugar v Edmondson Oil Co, Inc, 457 US 922, 939 (1982). However, the United States Supreme Court has found that the “something more” constituting state action could occur when private parties sought judicial enforcement of racially restrictive deed restrictions. Shelley v Kraemer, 334 US 1, 13-14 (1948). While Shelley has largely been limited to the facts of that case, it is possible that a Court could find that judicial enforcement of religious restrictions in condominium bylaws constituted “state action.” However, this issue remains unresolved.
The two most likely scenarios in which the RFRA would be applied are 1) the Department of Housing and Urban Development enforcing the Fair Housing Act and 2) the Michigan Civil Rights Commission enforcing the Elliot Larsen Civil Rights Act. Similar to its federal counterpart, the proposed Michigan RFRA does not define the term “person.” However, in the recent landmark decision of Burwell v Hobby Lobby Stores, Inc, 573 US ___ (2014), the United States Supreme Court held that a closely held corporation was a “person” under the Federal RFRA and that a closely held corporation was capable of having religious beliefs that could be interfered with by the government. As a practical matter, it may be difficult for a closely held corporation, condominium association or homeowner association to hold a religious belief. However, in the wake of Burwell, it now appears possible that community associations, which are largely nonprofit corporations, could rely on the religious beliefs of their boards and/or members and adopt them as the beliefs of the community association. Examples of situations where this may arise are as follows:
- An association amends its bylaws to prevent devil worshippers from occupying units.
- An association amends its bylaws to prevent a single man from living with two (2) unmarried women.
- An association amends its bylaws to prevent divorced people from occupying units.
- An association amends its bylaws to prevent unmarried couples from occupying units.
- An association amends its bylaws to prevent homosexual couples from occupying units.
While many people may find scenario number one acceptable, most people would find the remainder of the scenarios as offensive and/or gross violations of a person’s civil liberties, especially scenario number five, which has become a hot button issue nationwide. However, based on Burwell, it is at least arguable that the RFRA could provide an association with a defense to a Fair Housing Act violation and force a governmental entity to demonstrate a compelling interest as to why an association should be not allowed to exercise its “religious beliefs” in enacting the bylaws in any of the above scenarios. Given that the decision in Burwell is relatively recent, it remains to be seen whether a community association will attempt to enact bylaws that many find morally repugnant, in the name of “religious freedom” and later defend what would ordinarily be a Fair Housing Act violation based upon the federal RFRA.
At the present time, the federal RFRA would not provide a community association with a defense to a violation of a state civil rights statute, such as the Elliott Larsen Civil Rights Act. However, if Senate Bill No. 4 (2015) is passed, or a modified version of the RFRA is enacted into law in Michigan, the Michigan version of the RFRA could arguably act as a defense against a claim brought by the Michigan Civil Rights Commission for violating the Elliot Larsen Civil Rights Act. However, Governor Rick Snyder has indicated that he would veto the current version of Senate Bill No. 4 (2015), which other states have adopted, unless anti-discrimination measures were added to the bill. Accordingly, the future of the RFRA in Michigan is uncertain at the present time.
Given that religious freedom in community associations is a rapidly evolving area of the law, community association boards should consult with legal counsel when enacting and/or enforcing bylaws or ruling that could impact the religious beliefs of co-owners. As a general rule, courts will likely continue to uphold facially neutral bylaws and/or rules that interfere with the practice of religion in community associations, so long as is there is no discriminatory intent behind the bylaw or rule and the bylaw or rule has not been enforced in a discriminatory manner. However, community associations should be mindful that this general rule may change depending on future court rulings that interpret either federal or state versions of the RFRA, and that issues involving religious freedom are often decided on the specific facts of each particular case.