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Can Associations Ban Religious Symbols and/or Flags From Their Association?

By Elysa D. Bergenfeld

The Supreme Court of New Jersey addressed this situation in A Committee For A Better Twin Rivers, v. Twin Rivers Homeowners' Association.  In the Supreme Court's decision, authored by Justice John E. Wallace, Jr., the Court determined that even in light of New Jersey's broad interpretation of its constitutional free speech provisions, the "nature, purposes, and primary use of Twin River's property was for private purposes and did not favor a finding that the Association's rules and regulations violated plaintiffs' constitutional rights."  The Court found that "plaintiffs' expressional activities were not unreasonably restricted" by the Association's rules and regulations.  Finally, the Court held that "the minor restrictions on plaintiffs' expressional activities were not unreasonable or oppressive, and the Association was not acting as a municipality."
 

The Twin Rivers Court found that "the Association permits expressional activities to take place on plaintiffs' property but with some minor restrictions".  The Association must weigh the owner's right to free speech with the Association's right to private property and the right to promulgate reasonable rules and regulations.  Any restrictions on religious signs, however, must be reasonable as to time, place and manner.  For example, if the Association's board wants to restrict any religious signs and/or symbols, the Board needs to determine rules which will apply to all religious sects across the board.  We would not suggest banning mezuzuts or a cross, but could suggest a size restriction with regard to any and all religious signs and/or symbols.  In addition, we would suggest the banning of any derogatory or hate sign which would be seen as discriminatory or racial.  A swastika would certainly be seen as such  and should be banned.  With regard to any common element, the Board can make reasonable restrictions. 
 

With regard to the banning of the American Flag, please note there is a prohibition in the New Jersey Planned Real Estate Development Full Disclosure Act ('PREDFDA'), found at N.J.S.A. 45:22A-48.1. PREDFDA restricts associations from prohibiting the display of the U.S. flag, yellow ribbons and/or signs in support of troops unless the display of any of the above threatens public safety, restricts necessary maintenance activities, interferes with the property rights of another or is conducted in a manner inconsistent with the rules and customs deemed the proper manner to display the flag.  

Full post as published by New Jersey Law Blog on November 09, 2010 (boomark / email).