The Supreme Court heard oral arguments Wednesday to decide whether religious symbols, including a menorah, displayed in two Pittsburgh government buildings violate the constitutional principle of separation of church and state.
The case, Chabad and County of Allegheny and City of Pittsburgh vs. American Civil Liberties Union et al., pits the Lubavitch Hasidic movement against several major Jewish organizations.
The case may test the limits of the court’s 1984 decision, in Lynch vs. Donnelly, to uphold a Pawtucket, R.I., nativity scene erected in a private park near City Hall.
In that case, the court rejected the argument that the scene violated the First Amendment’s so-called Establishment Clause. It states that “Congress should make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
In making its ruling, the court argued that because the Rhode Island display included reindeer and other ornaments, the nativity scene had a secular, seasonal purpose, rather than a purely religious one.
This time around, the nativity scene is in the Allegheny County Courthouse. But unlike the Lynch case, the presence of Christmas trees and menorahs on public property is being challenged.
The case is about a 45-foot-high Christmas tree with an 18-foot-high memorah on the second floor of Pittsburgh’s City-County Building, known as City Hall. The menorah is owned by Chabad.
The U.S. Court of Appeals for the Third Circuit ruled last March that both the Pittsburgh displays were unconstitutional.
INCLUSION OF SECULAR SYMBOLS
A key focus in the oral arguments Wednesday was differences between the Rhode Island and Pittsburgh nativity displays.
Roslyn Litman, lawyer for the ACLU, said the Pittsburgh nativity scene had a religious Latin phrase on it, whereas the Rhode Island one simply said “Happy Holidays.”
In addition, the Rhode Island display, but not Pittsburgh’s, featured candy canes, she said, making it less likely that the intention was to convey a “religious message.”
Peter Buscemi, lawyer for the county and city, argued that the Lynch majority opinion did not attach any major significance to the presence of secular elements in the nativity scene display.
Also, he said this case is different from previous ones, where mammoth-size crosses were found to violate the Establishment Clause because of the “dominance of the symbol.”
But Litman argued that throughout history, governments have displayed religious symbols to foster bigotry and intolerance toward others.
She said the display “totally ignores” Moslems, Hindus, Buddhists and other Asian-American religionists.
In his summation, Buscemi said government rejection of religious symbols would represent “callous indifference” to religion, not intended by the Establishment Clause.
Nathan Lewin, lawyer for Chabad, said the menorah has an “appropriate educational effect” on the public.
The National Jewish Commission on Law and Public Affairs filed a friend-of-the-court brief in favor of the displays.
Jewish groups that filed amicus briefs opposing the displays are the Anti-Defamation League of B’nai B’rith, the American Jewish Committee and the American Jewish Congress, which filed its brief also on behalf of the National Jewish Community Relations Advisory Council.
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