It’s still months away from Chanukah and Christmas, but the Jewish community is once again wrangling over religious displays on public grounds.
Underscoring the division is a case now being considered by the Supreme Court that legal experts said could determine the constitutionally of future displays of menorahs and Christmas scenes.
“This should once and for all put an end to the serious litigation” on the issue of privately sponsored religious symbols on public property, said Marc Stern, co-director of the legal department of the American Jewish Congress.
The case now before the court, Capitol Square Review and Advisory Board vs. Vincent Pinette, Donnie Carr and Knights of the Ku Klux Klan, involves a privately sponsored cross near the Ohio Statehouse in downtown Columbus.
The case also pits the issues of separation of church and state against issues of freedom of speech and religious expression, according to observers.
The Supreme Court heard arguments in the case April 26, and must decide whether putting a 10-foot, Klan-sponsored cross in front of the Ohio Statehouse violated the Establishment Clause, which provides for the separation between church and state.
In an argument that Justice Sandra Day O’Connor called “far-fetched,” lawyers for the state of Ohio maintained that crosses are purely religious symbols and that placing them in front of government buildings would lead a reasonable observer to believe that the state was endorsing religion.
The Klan argued that the state violated its freedom of speech and expression and noted that during the holiday season, the state allows private sponsors to erect a menorah and a Christmas tree near the Statehouse.
The state maintains that those are cultural, not religious, symbols.
As has often been the situation in cases involving the display of religious symbols, Jewish activists filed amicus briefs supporting both sides.
Seven Lubavitch congregations filed on behalf of the Klan, saying that private religious speech deserves the same constitutional dignity as secular speech.
“Private religious speech is not the First Amendment’s stepchild,” the Lubavitch brief said.
The court’s decision could affect the menorahs the Lubavitch sponsor in a number of communities during the Chanukah season.
Lubavitch congregations from Michigan, Indiana, Vermont, Ohio, Georgia, Florida and Pennsylvania signed onto the brief.
In contrast, the American Jewish Committee and the Reform movement’s Union of American Hebrew Congregations filed with several other organizations on behalf of the Capitol Square Board, saying all religious displays on public grounds, including menorahs, were unconstitutional.
The AJCongress and the Anti-Defamation League submitted a similar brief, noting in particular the groups’ concerns that the cross was sponsored by the Klan, which they called a “Hydra-headed monster.”
The Lubavitch has often been at odds with other Jewish groups over the display of religious symbols on public property.
The debate in Ohio began in November 1993, when the Klan requested a permit to erect a cross in Capitol Square, where the Statehouse and state Legislature are located.
The state said the unattended display would violate the Establishment Clause and denied the permit. The Klan sued, saying the state violated its First Amendment rights.
A U.S. District Court and the 6th Circuit Court Of Appeals agreed with the Klan, allowing them to raise the cross Dec. 21, 1993. The cross stood for two hours before vandals tore it down.
Although some justices, such as O’connor, were vigorous in their questioning, it is not clear whether the court will support the earlier court’s decisions.
In arguing for the state last week, attorney Michael Renner, said a privately sponsored cross on public grounds was especially troubling here because it was so close to a government authority.
“Any religious display, unattended near a seat of government,” violates church- state separation, he said.
“We think a reasonable observer would take a message as powerful as that and connect it” to the state, he said, adding that he thought the lower courts made a mistake in allowing the cross to stand.
O’Connor immediately pounced on Renner, and pointed out that the cross had a sign stating that it was not state-supported.
“Here is a sign that says it’s not government sponsored. Your remarks propose to suppress speech in a discriminatory fashion,” she said.
Some justices questioned the menorah’s presence in the same square.
“IS it your position that you can have the menorah, but deny the cross?” Justice John Paul Stevens said. “That’s what your saying?”
The court was not as tough on the Klan’s lawyer, Beson Wolman, who asserted that the government denied the cross because it was sponsored by the Klan.
“We believe that here we have a public forum, where the state permits a variety of displays, and suddenly it chooses to confine it, and evoke the Establishment Clause,” Wolman, who is jewish, told the court.
Wolman, who is affiliated with the American Civil Liberties Union, told reporters outside the court that defending the Klan, which has anti-Semitic views, was like defending any other client.
Although the usually reticent Justice Clarence Thomas grilled Wolman on what the Klan intended the cross to symbolize, he seemed to support the group’s argument.
He suggested that the state was trying to shoehorn a political-speech case into the Establishment Clause.
The court is expected to render its decision by late June.
In a related development, a Michigan high school this week exhausted its legal battle to return a portrait of Jesus Christ to the school’s hallway.
The Supreme Court on Monday refused to review a 6th Circuit Court Of Appeals decision that denied the school permission to rehang the portrait.
In the case, Bloomingdale Schools vs. Dott Washegesic, a portrait of Jesus painted by a student hung for many years in the town’s high school until a student sued, saying the portrait violated the separation of church and state.
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The Archive of the Jewish Telegraphic Agency includes articles published from 1923 to 2008. Archive stories reflect the journalistic standards and practices of the time they were published.
