Sixty million Americans live in 300,000 common interest communities (CICs) – condominiums, planned residential subdivisions, and gated communities, governed by owners associations. In a growing number of CICs, religious symbols and uses are banned from publicly visible areas, resulting in what this article calls a “religion-free” environment. Such restrictions include prohibitions against religious symbols on doorframes or against religious objects in front of homes or on balconies, walls or patios. They also include bans on religious symbols and services in common areas. These restrictions produce an excessive privatization of religion, confining to interior spaces forms of expression and association that are usually public, and hiding the religious pluralism of the community. This article will argue that these restrictions violate human dignity, undermine the common good, and deny the critical role of private property in protecting religious exercise; as such, they contradict public policy and should not be enforced. Thus, this article makes a normative argument that, as between models of social life, it is better to allow the visible expression of religious identity on private property than to suppress it.
Existing statutory protections for religion do not prevent the enforcement of most restrictions that lead to religion-free environments. The Religious Land Use and Institutionalized Persons Act (RLUIPA) applies only to governmental land use controls, not to restrictions imposed by privately-governed communities like CICs. The Fair Housing Act (FHA) applies to private as well as state actors and thus offers some protection to CIC residents. Undoubtedly, some important victories have been won in cases of egregious animus aimed at residents of particular religious denominations. But the “anti-discrimination” statutory model is simply not sufficient to address the growth of religion-free environments, which are typically created through religion-neutral restrictions. Even facially discriminatory restrictions against religion, when applied equally to all faiths, have not been interpreted to fall within the statutory prohibition against discrimination. The change must come through legislation or by judicial interpretation of traditional property doctrines.
The phenomenon of the religion-free environment is particularly disturbing because it challenges the historic connection between religious exercise and private property and assumes that restraint, rather than freedom, is the starting point when considering the regulation of religion. This article is part of a series exploring this connection between religious exercise and property – particularly by way of the overarching constitutional design that directs theologically significant symbols and uses to private property and concomitantly limits their presence on public property. The series presents a normative argument in three parts for the protection of responsible religious exercise by groups and individuals on private and public property. The first piece focuses on government regulation of religious land use on private property. That article analyzes RLUIPA, which provides federal statutory protection to religious exercise as against certain local zoning efforts. This article, the second in the series, considers the private regulation of religious land use on private property through CIC restrictions. The third article describes limits to governmental involvement in religious symbolism on public property – limits that are necessary to preserve important functions of religious associations in civil society. As in my previous work, the analysis that lies ahead explores religious freedom in the context of the common good of society – those conditions which support the development and flourishing of the human person. In contrast to my prior work, however, this article does not focus on the jurisprudence of the Religion Clauses; it considers instead the role of private law in promoting religious freedom and the common good within a private property community and presents a particular normative construction of social life as it relates to residential property and religion.
For an understanding of religious freedom within a private property community, and for help in constructing a normative argument, this article draws on the intellectual tradition of Catholic social thought as it is echoed in contemporary political philosophy and in constitutional scholarship. That tradition offers a vision of the human person as being social by nature (as well as rational, responsible, and bearing dignity) and oriented toward life in community with others. In keeping with this vision, the article draws upon the Second Vatican Council’s Declaration on Religious Freedom (the Declaration), which calls for religious freedom, not only vis-à-vis the state, but also in civil society “as far as possible, and curtailed only when and in so far as necessary.” Agreeing with other scholars that an “opportunity for learning and development in [American law] might emerge from an encounter between [American law] and central elements of the tradition of Catholic social thought that are manifest in the Declaration,” this author finds the document a useful framework for analyzing the private law concepts presented in the sub-constitutional CIC context. Because the tradition is not limited to the context of the person versus the state, its language is neither the “rights talk” nor the “rule-of-law talk” of constitutional jurisprudence, but rather a communitarian reflection on responsible religious freedom that is embedded in and accountable to society. This approach is especially well-suited to the CIC context, which is characterized by extensive interconnections among residents and their property interests, and at the same time reaffirms the deeply held assumption that freedom, not restraint, is the proper starting point for discussions about religious exercise.
Responsible religious freedom is connected to two large and related concepts: the common good of civil society and the role of private property in promoting that good. Catholic social thought, along with political and jurisprudential theory, recognizes the distinction between the public and private spheres and the location of vibrant religious life on private property in civil society. Numerous non-state actors mediate between the person and the state – families, religious groups, neighborhoods, voluntary associations, and even market actors – and help create the social conditions necessary for human flourishing, thereby promoting the common good. The state coordinates the efforts of these actors “by setting minimum standards for economic and social relationships” and intervenes when necessary to protect the common good. Private property helps to preserve the distinction between the state and civil society and assists non-state actors in promoting the common good by generating economic and social development and, most relevant for purposes of this article, by facilitating the exercise of rights and defining correlative obligations.
Within this philosophical framework, this article views CICs as powerful non-state actors in civil society that have the freedom to use private property to create social conditions for human flourishing conditions like stable and secure neighborhoods. Obviously, in order to achieve this, CICs must be able to promulgate legally binding restrictions: security always requires limitations on freedom. But CICs have additional obligations to the common good, such as respecting responsible religious exercise. When CICs fail to do so, state intervention to limit their contractual freedom is warranted. The FHA is one such intervention, designed in part to prevent religious discrimination in access to housing and the benefits of ownership. This article contends that additional action is needed to address the more insidious problem of the religion-free environment. Thus, while a regulatory framework is essential to residential life in CICs, the current command-and-control approach to CIC governance overemphasizes security to the detriment of other fundamental human needs. In order to enable CICs to promote both security and religious exercise – which in this author’s view are compatible – a new regulatory model, based on fewer rules and greater cooperation among residents, will be necessary.
Preventing the spread of religion-free environments and promoting responsible religious exercise in CICs requires attention to the expectations for religious expression that are attached to various property interests. This approach echoes the Declaration’s presumption of freedom (restrained only when and to the extent necessary). As governing principles, CIC restrictions on religious symbols or uses (1) should correlate with expectations commonly associated with particular property rights and (2) should be enforceable only to eliminate identifiable negative impacts of the religious exercise, such as interference with neighbor’s health and safety, access to their property, or use and enjoyment of their property.
For instance, with respect to property individually owned (such as a condominium unit or subdivision lot) or exclusively used (such as a balcony or patio), a resident is justified in expecting considerable freedom for religious exercise, subject to regulations to mitigate specific harms to neighbors. With respect to common property that is available for general use (such as a meeting room or auditorium), a resident is also justified in expecting equal access for both religious and non-religious association and expression. Reasonable time, place, and manner regulations should be sufficient to ensure fair access to, and prevent the monopolization of and conflict regarding, common property. The proposal set forth below thus rejects flat prohibitions in favor of tailored controls that protect what are, in this author’s view, the legitimate expectations of neighbors.
Admittedly, CIC residents who want to live in a religion-free environment are not accommodated under this proposal. Under the terms of purchase, they may have the general right to expect the absence of visual clutter or the specific right (beyond aesthetic concerns) to expect the absence of visible religious symbols and religious uses. They might consider the public manifestation of religion to be ugly, messy, offensive, divisive, discomforting, or even threatening. They even might dislike certain faiths or they might feel strongly that religion belongs inside the home or house of worship. The normative argument made here, however, does not validate these expectations; it does not permit the legal enforcement of the rules and covenants that create the environment they want.
The social life we construct through law requires that we make a normative choice between a society in which religious identity may be publicly expressed where one lives, or a society in which it cannot be. In this author’s view, it is better to allow that expression. Residents should expect that religious exercise be responsible – that is, that it not threaten health or safety, or interfere with access to, or use and enjoyment of, other’s property or a common element. They should even expect that religious exercise not involve extreme forms of permanently disruptive expression. But they should not expect their neighbors to hide their religious identity.
This article proceeds as follows: Part II describes the pervasiveness of CIC restrictions and the emerging problem of religion-free environments; Part III explains why servitude regimes that create religion-free environments are harmful to both the person and society, and develops a normative approach based on religious, philosophical, and jurisprudential insights; Part IV argues that reliance on statutory norms of nondiscrimination is insufficient to halt the development of religion-free environments, that reliance on constitutional norms would actually produce such environments, and that only the traditional public policy analysis can prevent the growth of religion-free environments. In the end, the article rejects the attempt to rely on an anti-discrimination model or to constitutionalize important rights. Instead, it employs the rule of reason for the effective protection of those rights, on the theory that CICs correspond more closely to a model of neighborhood with collaboration and reciprocity as primary values, rather than to one in which persons assert rights against a government.