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Feldsott Lee Pagano & Canfield
Orange County Homeowners Association Law Firm

Opening Board Meetings With Prayer

I have not been to many meetings where this happens, but sometimes, it does - a board meeting that commences with prayer. In an age of diversity awareness, it just seems unusual to me whenever it happens. Homeowners associations have historically been likened to small municipalities. As such, it would seem to follow that homeowners associations would be run and regulated like a city and that the Establishment Clause of the First Amendment would apply.

The problem is that homeowners associations are not public entities. They are common interest developments, often times incorporated, and created to regulate private property. Because of this fact, many laws that regulate public entities do not apply. Southern California Housing Rights Center v. Los Feliz Towers Homeowners Association, 426 F.Supp.2d 1061 (C.D. Cal. 2005) held that the Americans with Disability Act (ADA) does not apply to homeowners associations because it is not a place of "public accommodation."

Nonetheless, there have been several instances where Courts have treated homeowners associations like a public entity.

Country Side Villas Homeowners Assn. v. Ivie,193 Cal. App. 4th 1110, 1120(Cal. App. 6th Dist.2011) held that homeowners have freedom of speech rights when homeowners speak out about "private conduct that impacts a broad segment of society and/or that affects a community in a manner similar to that of a governmental entity. In the same case, the Court reasoned that "Matters of public interest ... include activities that involve private persons and entities, especially when a large, powerful organization may impact the lives of many individuals."

Cabrera v. Alam,197 Cal. App. 4th 1077, 1078(Cal. App. 4th Dist.2011) found that a homeowner's association's annual meeting was a public forum and that candidates for the board of directors were "limited purpose public figures."

In light of the conflicting treatment of homeowners associations (private entities in some instances and public entities in others), how would the Establishment Clause of the Constitution apply? There is currently no case law directly on point. If the Courts were to find that meetings are "public forums," it may be the case that Courts would preclude prayer under the Establishment Clause. However, if Courts were to find that meetings located on private property with only members of the homeowners association, then prayer might be acceptable. From a policy standpoint, homeowners should be not disenfranchised at board meetings. A religion-neutral zone would be the safest standard.

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