Fair housing v. The Easter Bunny: if decorating for the holiday season caused you legal conflict, this year don't let fair housing violations rain on your Easter parade.

The 2005 holiday season saw a dramatic increase in the number of fair housing complaints filed by apartment residents who claimed that they were the victims of religious discrimination.

Even the name itself--"holiday season"--became a matter of contentious public debate and media scrutiny While most complaints came from residents who. among other things, objected to any limitations that were placed on the number or type of "Christmas" decorations they were allowed to display in the common areas of the community, other residents took offense for precisely the opposite reason--a feeling that the property owner was not imposing enough restrictions on the public display of outwardly religious decorations.

Of course this put owners in a "damned if you do, damned if you don't dilemma.

Owners who restricted openly religious decorations found themselves the target of individual residents as well as some local and national religious groups, while owners who allowed residents to display overtly religious decorations found themselves accused of discrimination by residents who opposed any sort of Christmas or Hanukkah display.

In either case, whether guilty, of discrimination or not, fair housing complaints of this sort frequently result in substantial legal fees and costs, to say nothing of the emotional toll and disruption they cause to residents and staff alike.

With Easter approaching, what's an owner to do in 2006?

DON'T PLAY FAVORITES

By now it should go without saying that federal, state and local fair housing laws all prohibit discrimination on the basis of religion. While refusing to rent to someone because he or she adheres--or does not adhere--to a certain religion is an obvious form of discrimination, fair housing laws also state that all apartment housing providers are prohibited from making any "notice, statement or advertisement that indicates a preference, limitation or discrimination based on religion."

Placing religious decorations or allowing residents to put up their own decorations in a community's common areas is one way in which housing providers may violate these laws. To a prospective renter, religious items or decorations in common areas may suggest that the apartment community he or she is visiting favors applicants who are, say Christian, or that most residents happen to be Christian; worse still, decorations may suggest that applicants who are not Christian might not be welcome.

Such displays may create the appearance that the apartment community is stating a preference or limitation based on a particular religion or lack of religion. Also remember that atheists and agnostics are entitled to the same fair housing rights as any other group.

KEEP THE CRECHE?

Before discussing recommendations for the holidays, it is also important that apartment owners and managers distinguish between decorations that are religious in nature and those that are secular in nature. As one might expect, that distinction is not easy to make. In fact, it's a problem with which courts frequently have straggled.

In County of allegheny v. American Civil Liberties Union Greater Pittsburgh Chapter, 492 U.S. 573, 109 S.Ct. 3086 (1989), for example, the Supreme Court was asked to consider whether Allegheny County violated the constitution by displaying a Christmas tree, nativity scene and Hanukkah menorah on government property. The Supreme Court held that the creche was an overtly religious symbol (which shouldn't have surprised anyone), but that the Christmas tree and Hanukkah menorah were not (which probably surprised many Christians and Jews). Because of that, the Supreme Court said that the nativity scene had to go, but that the Christmas tree and Hanukkah menorah could stay.

Seems simple enough, but in an earlier case a sharply divided Supreme Court held that a nativity scene on public property did not violate the law "when viewed in its proper context." In that case, Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, rehearing denied, 466 U.S. 994, 104 S.Ct. 2376 (1984), the Court found that the nativity scene was permissible because it was displayed along with a Santa Claus house, candy-striped poles, a Christmas tree, carolers, cutout figures of clowns and animals, hundreds of colored lights and a large banner that read, "Seasons Greetings." So, the creche was allowed to stay.

Despite Lynch v. Donnelly, which incidentally has never been overruled, the vast majority of cases hold the view that Christmas trees and Hanukkah menorahs (to say nothing of Santa Claus, candy canes, Christmas tree lights and similar decorations) are not religious--and therefore can be displayed on public property--in contrast to nativity scenes and crucifixes, which are religious and therefore cannot be displayed on public property. See Gonzales v. North Township of Lake County, 4 F.3d 1412 (7th Cir. 1993.), in which the display of a crucifix in a public park was upheld to violate the Constitution's Establishment Clause.

WHAT'S IN A (FAITH-BASED) NAME

if some readers are wondering why communities owned by faith-based organizations are permitted to call themselves Baptist Towers, B'nai B'rith Home or Lutheran House, the reason is more historical than legal. The U.S. Department of Housing and Urban Development (HUD), the federal agency chiefly responsible for private and public sector fair housing enforcement, as well as the administration of its own subsidized housing programs, has looked the other way when it came to the way faith-based organizations named their communities, and their use of religious symbols in advertising and on their properties.

on Jan. 9, 1995, however, HUD issued a memo titled, "Guidance Regarding Advertisements Under [section] 804(c) of the Fair Housing Act," which clarified the agency's position. According to HUD, communities may use a religious name and symbols in their titles or logos, as long as they include a disclaimer in their advertising, such as, "This home does not discriminate on the basis of race, color, religion, national origin, sex, handicap or familial status."

As for what constitutes religious or secular objects, HUD said that "the use of secularized terms or symbols relating to religious holidays, such as Santa Claus, Easter Bunny or St. Valentine's Day images, or phrases, such as 'Merry Christmas,' 'Happy Easter,' or the like does not constitute a violation of the [federal Fair Housing] Act."

5 RECOMMENDATIONS FOR A HAPPIER HOLIDAY

Though this issue is far from settled, it is recommended that owners follow what can be termed "a religiously neutral policy" when it comes to holiday decorations.

Following are some points to consider.

Remember that federal, state and local fair housing laws prohibit discrimination against applicants or residents on the basis of their religion, and that these laws apply also to applicants and residents who adhere to a particular religion or no religion at all.

1 Lobbies. hallways mad other common areas of a community should be maintained in a "religiously neutral" state. A religiously neutral state is one that does not give the appearance that the property owner or manager prefers or limits one religion over another

2 Overtly religious symbols (such as nativity scenes) should nor should religious services be conducted.

3 During the Christmas, Hanukkah and Easter seasons (Kwanzaa is "a season of celebration, meditation and recommitment." not a religious celebration), Christmas trees. Hanukkah menorahs and Easter bunnies and baskets

4 While common-area religious displays should be avoided. residents should be allowed, within the community's own rules, to display their personal religious symbols in their apartments and on the outside of their apartment doors.

5 Remember to call a lawyer if there is any doubt about the laws or cases in a given jurisdiction.

Steven J. Edelstein is a Partner in the law firm of Williams & Edelstein P.C., Norcross, Ga. (formerly known as Coughlin, Kitay & Edelstein P.C), which represents apartment owners and managers across the country in fair housing and other civil rights matters. He can be reached at 770/840-8483 Ext. 206 or [e-mail].