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Behind the Headlines: Battle over Creches and Menorahs Has Moved out of the Courtrooms

For legal experts at national Jewish organizations, December usually means a deluge of phone calls and complaints about creches, Chanukah menorahs and Christmas trees on government property.

The controversies often lead to long-lasting legal battles, winding up in the Supreme Court.

But this season has been quiet, and the experts expect no major lawsuits to be initiated. Instead, new strategies to deal with the contentious issue of public holiday displays are being employed at the local level.

No new major litigation has been initiated because the Supreme Court has largely decided the question of what types of public holiday displays are and are not constitutionally permissible.

A series of rulings that began with a 1984 case in Pawtucket, R.I., and ended with a case last year involving the city of Pittsburgh has established a set of legal standards that are difficult to challenge.

There is no hard-and-fast rule barring or permitting seasonal religious displays on government property. Rather, the legality of each case is determined by its context and components.

If the display includes secular holiday symbols, such as reindeer or Santa Claus figures, or symbols of more than one religion, like a Christmas tree next to a menorah, then it may be displayed on government property without violating the constitutional separation of church and state, the court essentially has ruled.

“The Supreme Court has made the law pretty clear,” said Mare Stern, co-director of the American Jewish Congress Commission on Law and Social Action. When it comes to holiday displays, he said, “you just need to make the display judgment proof in the federal courts by putting the Christmas tree next to the menorah next to the creche.”

TREND IS TO ALLOW MORE SYMBOLS

Most mainstream Jewish organizations still believe that the display of religious symbols on government property violates the First Amendment’s “establishment clause,” which bars a government endorsement of religion.

But these groups acknowledge that changes in this country’s judicial climate have meant they can no longer rely on the federal courts to enforce their point of view.

“It is hard to know where the courts will draw the line, especially as the composition of the Supreme Court changes,” said Samuel Rabinove, American Jewish Committee legal director.

Steven Freeman, director of legal affairs for the Anti-Defamation League of B’nai Brith, said that since “the trend is to allow more symbols in public arenas, it may not be fruitful to argue each case all the way down the line to the Supreme Court.”

And since past legal efforts often led to tensions among local groups, “there is an effort to avoid some of the animosity and to encourage solutions which avoid the divisiveness in a season which should be happy and joyous,” he said.

“It may now make more sense to fight these battles in other ball fields,” said Jerome Chanes, co-director for domestic concerns at the National Jewish Community Relations Advisory Council.

Instead of rushing to file lawsuits, representatives of Jewish organizations have been working with local community leaders to try to keep religious symbols on private property, such as church and synagogue lawns.

DISPLAY REMOVED IN SKOKIE

Sylvia Neil, director of the Midwest region of AJCongress, was able to persuade officials in the heavily Jewish Chicago suburb of Skokie to remove their annual holiday display — a menorah and a nativity scene — from the City Hall lawn.

In a 1987 AJCongress lawsuit against the city of Chicago, the 7th U.S. Circuit Court of Appeals ruled that it was unconstitutional to display religious symbols at the seat of government. With that in hand, Neil has been approaching municipalities around Chicago, asking them to abide by the ruling.

Skokie officials, at first, would not move the display. Neil then asked a local association of clergy and a human relations organization to make a recommendation to the city.

They urged that Skokie relocate the display, “because otherwise it is potentially divisive to good community relations,” Neil said.

Most of the menorahs displayed on public property are put up by Chabad, the Brooklyn-based movement of Lubavitcher Hasidim. And Chabad is erecting more menorahs than ever this year: about 200 of them on government property and another 2,000 on private property around the country.

To the Lubavitch, broadcasting the message of Chanukah is a religious obligation.

“It is not just a religious message, but a humanitarian message to all mankind,” said Rabbi Yehuda Krinsky, the movement’s spokesman. “The Chanukah message is a historic message of freedom, and that might does not make right.”

“When Jews see the menorah in their town, they see the message that their religion is respected in this country,” said Nathan Lewin, a Washington attorney who represented Chabad before the Supreme Court in the Pawtucket and Pittsburgh cases.

Lewin also claimed that displaying the giant menorahs — some as large as 30 feet tall — helps strengthen Jewish identity and is a step against assimilation.

TRIVIALIZING THE MENORAH

But other members of the Jewish community feel such displays send the message that the menorah is as religiously insignificant as the Christmas tree.

“It’s almost certain to trivialize menorahs if you have to put them next to Christmas trees,” said Stern of AJCongress. “Who wants that?”

And when Chabad puts up a menorah in a town where there were no religious holiday displays before, it means that government property is almost certain to become a forum for religious exercise, Jewish officials say.

“In at least a few communities where there had not been public displays before, Christians say, ‘Well, now we need our creche,’ ” said Rabinove of AJCommittee. “There had never been nativity scenes in Phoenix and New York, but then there was a demand for equal space.”

He added that in Boca Raton, Fla., where Chabad has erected a menorah for the first time, “a gentile City Council member said ‘Fine, it will make it easier for us to put up more Christmas stuff.’ “

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