How to Avoid a “Créche Landing”

Every holiday season a cooperative placed a Christmas tree and a menorah in its lobby. This tradition continued for years without complaint. Then, one year, a tenant-shareholder told the board that he wanted to place a crèche (or Christian nativity scene) set in the lobby as well. The tenant-shareholder was relentless in his repeated requests, which the board eventually granted. The day after the tenant-shareholder set the crèche on a sideboard in the lobby, a number of other tenant-shareholders complained to the board that, although a tree and menorah might have become largely secular objects, a crèche was not. The board approached the owner of the crèche and told him of the complaints and requested that he remove it. He refused to do so and claimed that he had a right to express his religion in the lobby of the building of which he was an owner. Other shareholders continued to complain and argued that a display of the crèche in a public space violated their rights. The dispute became acrimonious, and the board was unable to reach a decision that it thought honored the rights of all of the parties.

Takeaway

It has been argued over the years that a “common interest community,” such as a cooperative or a condominium, is quasi-governmental in nature and is therefore subject to the requirements and restrictions of the First Amendment to the Constitution insofar as freedom of speech and the “establishment of religion” are concerned. However, this argument has not yet been accepted by the courts in New York. From a legal perspective, the building was a private place and the board could have allowed the crèche — or even banned all religious symbols — if it had it wanted to.
The law does not always provide solutions to issues. Oftentimes, dealing with problems effectively involves the application of common sense and consideration of community sensibilities rather than legal analysis.