It has been five years since the Supreme Court banned religious display inside government building, but the creche and menorah debate continues to gain new fervor with each holiday season.
With government building – including city halls and courthouses – off-limit, religious groups have increasingly turned to public parks to display Nativity scenes or menorahs.
Next week, Jews in almost every state will light over 200 menorahs on public land to celebrate the festival of lights. At the same time, Nativity scenes will begin to spring up across the country as the Christmas season gets under way.
The debate over holiday displays has divided not only various courts and civic groups, but the Jewish community as well.
Defense organization, such as the Anti-Defamation League, American Jewish Congress and American Jewish Committee, have supported legal challenges to Nativity scenes and crosses on public land, as well as to menorahs.
They have found themselves at times arguing against Chabad and other religious activists who sponsor menorahs in at least 44 states.
“In essence, Chanukah is a festival celebrating the religious liberty and freedom of the Jewish people, and that’s why we use public forums,” said Rabbi Levi Shemtov, director of the Washington office of the American Friends of Lubavitch.
“The essential point is that if we are allowed by law to display a menorah, we should do it,” he said.
Opponents argue that religious symbols on government property convey the message that the government is endorsing one religion over another, which would violate the Constitution.
This side of the debate also argues that passers-by who do not belongs to the religious groups being represented in a display are made to feel like second- class citizens.
The courts have ruled that while menorahs, crosses and creches fall under the category of religious symbols, Christmas trees and Santa Clause display do not.
Arguing that no players are said over a Christmas tree and that they carry no religious significance, courts have declared trees and Santa Claus display seasonal symbols and have permitted them in Public meeting.
“When a menorah stand alone in a park or in front of a city hall there’s generally no problem,” said Nathan Lewin, president of the American section of the International Association of Jewish Lawyers and Jurists. Lewin has litigated dozens of cases supporting menorah lighting on public property.
“So far as private religious display in public forum, the courts have ruled consistently in our favor with a few exceptions,” he said.
Courts have developed an informal test determining whether displays violate the separation of church and state.
The Supreme Court ruled in a landmark 1989 case that a holiday display in an Allegheny, Pa., courthouse was unconstitutional. The justices decided that the creche display, without any secular symbols of the holiday season, clearly endorsed Christianity over other religion. Since this ruling, legal challenges to Nativity scenes have sprung up across the country. But courts have drawn a sharp distinction between display in government building and those in public parks, leaving open the door for menorah display on government-owned land.
In Indianapolis, city officials and Jews are currently locked in a legal battle over a menorah near City Hall. The case hinges on whether supporters of the menorah can prove that the city it trying to silence religious speech. A decision in the case was expected before Chanukah begins.
Some of the most prominent lightings of menorahs by the Americans Friends of Lubavitch slated for next week include those in Central Park in Manhattan, Independence Mall in Philadelphia, the State Capitol in Georgia and Ellipse behind the White House in Washington. Lubavitch also plans public lightings in front of scores of city halls across the country.
In another related case, the Supreme Court has let stand a lower court decision that two hilltop displays of massive sitting atop the highest point in San Diego favor Christianity over other religions and must come down.
Without comment, the high court last month rejected an appeal by the city of San Diego seeking to allow the crosses to remain. One of the crosses serves as a monument to American veterans. The Supreme Court in effect upheld the California Court of Appeals decision last year that the cross is the “quintessential symbol of Christianity,” and since it stood on public ground it violated the state’s constitutional ban against favoring one religion over another.
Jewish organization that filed friend-of-the-court briefs against the display of the crosses hailed the Supreme Court’s decision. The San Diego case, however, will not have an impact on holiday display. Unlike legal challenges to menorahs and Christmas displays mounted in recent years, the San Diego case focused on what the court called a “preeminent symbol” of religious faith.