Jewish organizations are more active than ever this holiday season in an intramural legal struggle over the display of Chanukah menorahs on government property.
The Lubavitch movement has placed large menorahs in 50 or 60 such sites this year, including Boston, Chicago, Philadelphia, Trenton, N.J., and Washington, D.C., according to Rabbi Yehuda Krinsky, a Lubavitch spokesman. And the movement has helped municipalities to defend themselves in court with nearly complete success as they cooperate with Lubavitch’s 12 or 13-year program of placing menorahs in hundreds of public places.
That effort has been opposed in policy statements and behind-the-scenes negotiations by the National Jewish Community Relations Advisory Council, its local affiliates and the American Jewish Committee, American Jewish Congress and the Anti-Defamation League of B’nai B’rith, as well as in litigation aided by AJCongress and ADL. These organizations also dispute the placement of creches on government property.
At issue is how to interpret the nine-candle candelabra and the nativity scene: Are they religious objects, and if so, does that preclude their display on public land?
TWO RELEVANT SUPREME COURT RULINGS
Two recent Supreme Court rulings seem most relevant. In Lynch v. Donnelly (1984), the court held that a nativity scene sponsored by the City of Pawtucket, R.I., and displayed in a private park with model reindeer was permissible because it was a seasonal holiday display, not exclusively a Christmas one.
In McCreary v. Stone (1985), a 4-4 decision on the constitutionality of a privately-sponsored creche displayed alone on Scarsdale, NY, public property left unchanged a lower court ruling that allowed the creche.
The Lynch ruling was the basis of Federal District Judge Barron McCune’s decision December 15 to turn down a request for a preliminary injunction against the display of a menorah and creche in Pittsburgh.
The menorah was built on the grounds of the Pittsburgh City-County Building beside a Christmas tree. The creche was placed inside the Allegheny County Courthouse next to arrangements of poinsettias.
The plaintiffs, a group of Pittsburgh residents represented by the ADL and the American Civil Liberties Union, plan to continue their protest in the federal courts, according to Ruti Teitel of the ADL legal affairs department.
‘ESTABLISHMENT CLAUSE’ CITED
They point to the “Establishment Clause,” which prohibits the government from making “a law regarding the establishment of religion.” Because the menorah and creche are religious objects, they argue, to display them on government property implies government sponsorship, and thus violates the First Amendment.
Howard Ross, western Pennsylvania and West Virginia regional director of ADL, contended that just as a nativity scene is relevant only to the celebration of Christmas, the nine-candle menorah, donated by a local Lubavitcher, is a religious symbol associated only with the celebration of Chanukah.
Not surprisingly, Lubavitch movement spokesman Krinsky presented a different interpretation. He said the “Establishment Clause means … that the government cannot establish a specific religion and recognize a specific religion as a state religion, but at the same time the freedom of religion does not mean the freedom from religion, which means that everyone can practice their religion freely.”
As for the menorah, Krinsky said that it symbolized Chanukah, a holiday with “a universal message of freedom … It’s not indigenous only to Judaism to have the victory of right over might. To say that it is solely religious and has no secular relevance at all is foolish.”
DEFENDS THE CRECHE AND MENORAH
Allegheny County Assistant Solicitor David McTiernan and Pittsburgh Deputy Solicitor George Specter defended the creche and menorah, respectively, with the Lynch case. Specter added the position that the overall display is seasonal…”
In Los Angeles, California Superior Court Judge Robert O’Brien rejected a citizen’s request December 18 to bar the display of a menorah in the rotunda of City Hall. Moreover, attorney Marc Stern of the American Jewish Congress, which filed an amicus brief in the case, said the judge ruled that the Constitution doesn’t require the purging of religious symbols from public spaces.
The AJCongress side had better luck in Des Moines, Iowa. On Monday, Federal District Judge Harold Vietor turned down a request for a court order sought by Lubavitch that would have allowed a menorah to be placed on the grounds of the State Capitol. The State Attorney General had issued an informal opinion that the display would be unconstitutional, Stern said.
In Eighth Circuit Federal Court Wednesday, Lubavitch lost an appeal of Vietor’s decision. Krinsky said Des Moines Lubavitchers are considering alternatives, such as displaying the menorah in other sites or erecting it on State Capitol grounds for several hours each non-Sabbath night of Chanukah, and then dismantling it.
LITIGATION DRAWS CRITICISM
All of this litigation during the Christmas season has drawn criticism from some ideological allies of AJCongress, who worry about fostering societal ill will. Stern said he understood that argument, and that it had been the “prevailing wisdom for years” to avoid the lawsuits during this season.
But he said that after Christmas, the plaintiffs run the risk of having their case called irrelevant. “Next year, who knows what will happen?” he asked. “The only sure time to litigate is when the creche or the menorah is up.” And he said litigation is the only way to protest these displays.
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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.
