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ACLU Helps Homeowners Fight HOA Flag Restrictions

— March 1, 2021

David Pendery and his husband put up a gay pride flag outside their home and posted a photo of it on Facebook.  Then, they received a letter from the local district’s management company telling them it had to be removed.  The couple filed a lawsuit and a hearing in the matter has been set for March 8 in Denver Federal District Court.  They’re being backed by the American Civil Liberties Union (ACLU), calling it a violation of First Amendment rights.

Pendery said, “For me it’s about a specific pride flag, but this is about a free speech issue.  I don’t think I should have to seek approval from the government for what is acceptable speech.”

David Rhodes lives nearby, in the same subdivision, and said, “I think everyone has the right to fly the flag they want to fly and if they are LGBTQ, it’s fine also.”

ACLU Helps Homeowners Fight HOA Flag Restrictions
Photo by Tim Bieler on Unsplash

But the homeowners feel as if they’re being stifled by a government entity rather than an association.  The regulations allow American flags to be flown all the time and flags for sports teams only during the event.  Other flags require special approval.

“It’s essentially the government infringing on the First Amendment, very different from an HOA which can make arbitrary rules and doesn’t have the same accountability,” said Pendery.

Meanwhile, two other homeowners, Kara and Ben Willkoff, are experiencing a similar issue.  The couple went through the formal approval process for their Black Lives Matter flag but were denied without being given a reason why.

“I looked in the bylaws to figure out if we were breaking a rule.  There are things about flagpoles and there are things about signage.  There isn’t anything about an actual flag,” said Kara. “It’s arbitrary.  And I think that’s the big difference.  You can’t pick and choose what you’re going to enforce.”

The Wilkoffs spoke with the ACLU, and Mark Silverstein responded, “Our Constitution guarantees everyone the right to speak and to publish freely. So, let’s protect that right, even in metro districts and homeowners’ associations.”

HOA Board submitted a response in the Willkoff case, stating, “Currently we are working with the Wilkoffs to come to a resolution.  As a board, we do not take issue with the message on the Wilkoffs’ flag.  We recognize we need to meet as a community to discuss updating our covenant.  We will bring it up for discussion and vote with the entire neighborhood at the earliest opportunity.  We understand Black Lives Matter is an important issue in our society.  It is unfortunate our neighborhood has been put in a spotlight under these circumstances, but we are grateful for the dialogue it has started with our neighbors.  We are confident this will make us a better and more inclusive neighborhood going forward.”

Now, the organization’s website states it’s interested in investigating all similar matters: “The ACLU of Colorado believes that the right of free speech includes your right, at your own home, to post a sign or fly a flag that expresses your views.  We are investigating complaints that HOAs have objected when residents have displayed pride flags or Black Lives Matter yard signs.   If you believe your HOA or Metro District is infringing on your right of free expression, please contact the ACLU of Colorado at”


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