David Pendery’s rainbow pride flag had only been waving outside his house for a few days when a letter arrived ordering him to take it down.
Pendery, 44, a marketing executive, lives with his husband and their two children in Arapahoe County, Colorado. When he hung up the flag at the end of August 2020, he hoped that the pennant would show solidarity for LGBTQ families like his. What he didn’t anticipate was a drawn-out legal battle, one that took him all the way to Denver U.S. District Court in early March.
There are more than 370,000 homeowners associations across the country, collectively representing more than half of all owner-occupied U.S. homes. Homeowners associations, which are created with the purpose of upholding property values, also dictate quotidian duties of homeownership: where to place trash bins, when to trim lawns, even which colors of paint are appropriate. But buried in their contracts are often limits on the size and style of flags that homeowners can fly. At a time when even the image of the American flag has become polarizing, these policies are leading to accusations of partisanship and violations of constitutional rights.
“HOAs get most of their powers from the contracts that they make their residents sign,” said Jeremy Rovinsky, a law professor and dean of National Paralegal College. “These allow the HOA to regulate expression that would otherwise be considered ‘free speech.’”
In Pendery’s case, his community is overseen not by a traditional homeowners association, but a metropolitan district, which is a government entity with a democratically elected board. That district maintains a home improvement reference guide, which states that preapproval is required for nearly all flags. Only military pennants and the U.S. flag are exempt.
Flag restrictions for private homes can be as varied as U.S. housing stock. Some stipulate the size of permissible flags; others allow holiday signs and sports banners, but little else.
They also vary by state. California prevents homeowners associations from restricting flags except in matters of public health or safety; in Arizona and Texas, restrictions on political signs are lifted in the months immediately preceding an election and for a handful of days following.
In this past election cycle, flags were unfurled with a new urgency. “I think I saw more flags used as political symbols than at any other time in my life,” said Michael Green, a flag researcher and designer. He started his own company, Flags for Good, in the lead-up to the 2020 election.
The 2005 federal Freedom to Fly the American Flag Act makes it illegal for any homeowners association or property management company to restrict a resident from flying the American flag, although many associations do place limits on the size and height of the Stars and Stripes. But when it comes to other pennants, a homeowner’s right to free speech is often irrelevant if they live in a community with a homeowners association.
The First Amendment prohibits the government from infringing on a citizen’s right to free speech, but homeowners associations aren’t government entities. Their ability to censor expression is much broader. “For a constitutional violation to occur, you need a state actor,” Rovinsky said. “Yes, you do have freedom of speech, but while the government can’t infringe on that, your HOA can say you can’t put up a Black Lives Matter sign.”
Residents who have challenged HOAs have had more success arguing violations on the Fair Housing Act or the Civil Rights Act, which both prevent discrimination based on race, religion or gender. “A court would want to look for discriminatory intent,” Rovinsky said.
Pendery was told he would need to apply for approval in order to fly his flag, which he chose not to do. Instead, he filed an open-records request to see if there were irregularities in how and when his district enforced its flag guidelines. He read through 500 pages of emails from district committee members, then reached out to the American Civil Liberties Union of Colorado, which sued the district on his behalf.
“I believe it was selective enforcement,” Pendery said. “My flag was clearly so egregious that within 48 hours of me putting it up, I had a letter about it. I didn’t see that sort of expeditious action being taken against their other guidelines.”
The ACLU of Colorado won an injunction on March 4, and the district is now hammering out new language that removes the requirement that residents submit flags for approval before flying them. “I put my flag back up the same day,” Pendery said. The incident, he said, was a lesson for his children, ages 2 and 8.
“We made this case because it’s important to stand up for what you believe in, and what’s right,” he said. “The biggest thing I want them to know is that there are people who have been marginalized or taken advantage of, and you need to stand up for the little guy. You need to stand up for your family.”
Pendery’s case was just one of about 50 complaints about flag restrictions that the ACLU of Colorado has heard of this year. “It’s snowballed since last fall,” said Mark Silverstein, ACLU of Colorado’s legal director. The vast majority of complaints, he said, are centered around flags with social justice messages or political symbols associated with Democratic and left-wing causes.
“Some HOAs may have tolerated or declined to enforce rules when the signs or flags were not viewed as controversial,” Silverstein said. But when residents complain, he said, they are more likely to issue a citation. “And in some quarters, these social justice signs are perceived as having a more controversial edge to them, and that has resulted in people nudging HOAs to enforce their rules.”
When it comes to homeowners’ free speech, courts often disagree about the classification of homeowner associations. While some states view them as purely private organizations, other states, like California, see them as an extension of the government.
“Several court decisions in California have considered HOAs to be quasi-governmental entities,” said Patricia Brum, a Los Angeles-based attorney with the law offices of Snell & Wilmer. “So in that context, the HOAs in California are more restricted when it comes to the application of free speech.”
The fact that Pendery’s community is overseen not by a traditional HOA but a metropolitan district with a democratically elected board likely gave him a significant edge in his legal case.(BEGIN OPTIONAL TRIM.)Kara and Ben Wilkoff, who live with their three children in a community run by a homeowners association in Littleton, Colorado, also reached out to the ACLU of Colorado for help with a flag issue. Kara Wilkoff, 40, and Ben Wilkoff, 38, hung a Black Lives Matter flag outside of their home last August. Four months later, their homeowners association ordered them to take it down and submit a formal approval request.
Kara Wilkoff, a TV producer, said that she chose to raise the Black Lives Matter flag after the deaths of Black Americans at the hands of police, including Breonna Taylor, Elijah McClain and George Floyd. It was a sign of solidarity, but also a way for Wilkoff, who has a Black father and a white mother, to connect with her own identity.
“I’m white passing, and I have always struggled a little bit with race and identity,” she said. “I wanted to be supportive of the Black lives in my life, my children’s lives and my father’s life. So I got a flag.”
In February, the Wilkoffs collected a number of signatures of support for their flag and submitted a formal request for approval, which was denied. There was no reason given for the denial. In the next few weeks, their community will vote on a motion to change their bylaws to specifically allow flags.
(END OPTIONAL TRIM.)Not all homeowners have the stomach for such a fight.
Paul Whelan, 74, an automotive technician in Waterside, Pennsylvania, was devastated by the election of President Joe Biden in November and decided that same month to take down the American flag in front of his home. In its place, Whelan, a veteran of the U.S. Marine Corps, raised the Gadsden flag, the yellow banner with a coiled rattlesnake and the words “Don’t Tread On Me.” The flag, which has been used by both the U.S. Marine Corps and the U.S. Navy, dates back to the American Revolution but was also among the far-right symbols seen during the Jan. 6 insurrection at the U.S. Capitol.
He soon received an email from his homeowner’s association telling him the flag was not in compliance with the homeowner association’s flag rules, and he would have to take it down.
“The Gadsden flag was one of our country’s first flags. There’s nothing wrong with it. Yes, the Tea Party and Trump supporters have carried it, but that doesn’t make it bad,” he said. “This is cancel culture.”
Whelan said he chose not to challenge the homeowners association’s ruling so as to spare his wife, who is currently undergoing treatment for aggressive breast cancer, any additional stress. “I love a good fight, but she doesn’t need any more aggravation in her life,” he said.
For now, the flagpole in front of his home stands empty.
Silverstein, of the ACLU, says that while it’s difficult to anticipate whether or not the uptick in homeowner complaints might change federal laws against flag restrictions, he believes there is a possibility that in Colorado, Pendery’s case could lead to a battle at the state level.
“Flags have always been communication tools,” said Green, the flag researcher. “They are the way we identify certain groups and how we define our tribes. It’s just fabric on a stick, but it’s a powerful thing.”
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