Below is an article written by Julie E. Blend that was recently published in the Dallas/ Ft. Worth Community Associations Institute Chapter magazine, Community Contact, Spring 2015.
“ . . . turn your fact to the Great West and there build your home and fortune.”
Horace Greeley, 1841
When pioneers turned out in droves in search of new lands and better lives in the “Old West” they brought their religion with them. Houses of worship were built and traveling preachers known as circuit riders moved from town to town on horseback. From its earliest beginnings our nation was founded upon religious freedom. The pioneers took their religion seriously as an essential part of the fabric of life on the frontier. Similarly, today’s American society is interwoven with the practice of various religions.
Religion has been a topic of recent litigation and proposed legislation involving community associations. Chapter 202 of the Texas Property Code already regulates the display of religious items. An association may only prohibit religious displays on the entrance to a dwelling under certain circumstances, such as when the item is greater than 25 square inches (Texas Property Code Section 202.018). Each new session of the Texas legislature brings the possibility of new laws affecting homeowners’ associations. A recently filed bill for the upcoming legislative session proposes to regulate religion in community associations on a much larger scale.
Representative Matt Krause from Tarrant County has filed a House Joint Resolution, HJR No. 125. The bill proposes a constitutional amendment relating to a person’s free exercise of religion. It specifically states: “A homeowners’ association may not burden in any way a person’s free exercise of religion unless the burden is: (1) necessary to further a compelling quasi-governmental interest of the homeowners’ association; and (2) the least restrictive means of furthering that interest.” If both houses of the legislature pass it, then Texas voters will see it on the ballot at the polls next November. It should be noted that Representative Jason Villalba from Dallas had filed a similar bill earlier but has publicly stated he will not pursue his bill due to unintended consequences not apparent at the time the bill was filed. This proposed language tracts the Texas Religious Freedom Restoration Act (“TRFRA”)(Chapter 110 of the Texas Civil Practice and Remedies Code), which prohibits the government from “substantially burden[ing] a person’s free exercise of religion” unless the burden “is in furtherance of a compelling governmental interest” and “is the least restrictive means of furthering that interest.” Whether this proposed legislation will pass, and if so, how it would be interpreted, remains to be seen. Connecting “quasi-governmental” with “homeowners’ association” expressly in the Texas Constitution is likely to have far-reaching constitutional ramifications for associations well beyond the issue of religious freedom. This is a bill to definitely keep your eye on.
It is well known that the Fair Housing Act applies to community associations and provides protection against certain forms of discrimination, including religious discrimination. Do other statutes apply in the context of religion and community associations? At least one Texas trial judge has answered yes. A Collin County judge recently cited the TRFRA and a federal statute in ruling against an association in a lawsuit involving religious gatherings in a home. An owner filed the lawsuit seeking an injunction and statutory damages against the Congregation Toras Chaim, Inc., a congregation of Orthodox Jews in far North Dallas, and the owners of the home where the Congregation gathered. The Association for the Highlands of McKamy IV and V neighborhoods intervened in the lawsuit making claims only against the owners. Both sides asked the court to dispose of all or most of the case through motions for summary judgment. The Judge ruled in favor of the defendants, citing both the TRFRA and the federal Religious Land Use and Institutionalized Persons Act (“RLUIPA”).
The plaintiff and the Association argued that its governing documents restricted the use of homes to a single – family residence. In response the defendants asserted that the primary use of the home is as a residence. Families also admittedly gathered at the home because Orthodox Jews are prohibited from driving on their Sabbath and must live within walking distance of a synagogue. The defendants asserted that an interpretation of the Association’s restrictive covenants to prevent the Congregation’s religious activities would violate both the TRFA and the RLUIPA. They argued that the statutes applied to the Association because: (i) the plaintiff and the Association sought to enforce state statutes that are subject to the TRFRA and RLUIPA, (ii) judicial enforcement of restrictive covenants is itself state action subject to the statutes, and (iii) homeowners’ associations are quasi-governmental entities that are themselves subject to the statutes.
The Association argued that it was not a governmental entity to which the TRFA and RLUIPA applied. It further pointed out that defendants’ request to apply TRFA and RLUIPA to a homeowners association was an attempt to seek an extension of the law, not an application of existing law, as no court has made such a finding. The Judge’s ruling did not specifically state which of the defendants’ three grounds served as the basis for her holding that the TRFRA and the RLUIPA applied, so there was no actual finding that an association is a quasi-governmental entity.
The Judge took under advisement whether the additional grounds raised in the defendants’ motion should be granted as well. Some of the additional grounds included claims that the Association’s decision to intervene was arbitrary, capricious or discriminatory in violation of the Texas Property Code, that the right to enforce the residential use restriction had allegedly been waived because other non-residential uses of homes had been allowed, and that the Association’s delay in challenging the Congregation’s activities for almost three years should prevent an injunction. Further, defendants asserted that the plaintiff’s claims for damages were deficient. Any further clarification the Judge may provide on these matters could be instructive in dealing with the issue of religious gatherings.
Of course an appeal may be filed and a higher court would have the opportunity to affirm or overturn the Judge’s ruling. Keep in mind as well that the express language of restrictive covenants is fact specific and should always be reviewed in considering a unique course of action should a similar matter arise. If carried to the appellate court level, the recent Collin County lawsuit has the potential to affect the law regarding religious matters in community associations in a significant way. HJR No. 125 has the same potential. As with all pending bills before the legislature, it is important to pay attention and embrace any opportunity to voice your opinion.