Menorah Lighting in Public: a Divisive Constitutional Issue

In Rio de Janeiro, a statue of Christ stretches its arms over the enchanting bay, an integral part of the landscape.

Last year, the Chabad-Lubavitch organization added a Jewish presence to Rio, albeit for just one holiday, placing a large menorah near one of Rio’s numerous mountain tunnels.

In Rome this week, Mayor Pietro Giubilo joined Chief Rabbi Elio Toaff for the first night of Chanukah in a menorah-lighting ceremony in Rome’s Piazza Barberini.

This year in Israel, where Chanukah was born and where it hardly goes uncelebrated, Chabad has sought to instill “Unity of Israel” with the most extensive festivities ever in the organization’s history, mounting candle-lighting ceremonies in every major Israeli city.

The Lubavitch organization, which has embarked on its worldwide effort at the behest of its rebbe, Rabbi Menachem Schneerson, says it seeks to place its menorahs in public places to instill Jewish pride.

Last week, Leon Zelman, executive director of Vienna’s Jewish Welcome Service, remarked during a visit to New York how Jewish and non-Jewish Viennese were impressed last year when President Reagan spoke on television about the celebration of both Chanukah and Christmas, according them equal respect.

“It gave us Jews in Vienna such pride,” said Zelman, who said he often feels “jealous” of American Jews’ feeling of freedom.

But in this free America, Chabad’s efforts to instill that Jewish pride have met with legal obstacles unheard of elsewhere in the world.

CHURCH-STATE ISSUE

The issue is the separation of church and state, and Chabad’s adversaries have been and continue to be Jewish groups and Jewish lawyers.

The 18-foot menorah that is being lit in Chicago’s Daley Plaza this week shines its light by the grace of a preliminary court order, handed down by U.S. District Court Judge James Parsons last month.

“To deny them such use (of Daley Piaza) merely because they are religious organizations seeking to make religious expression is discrimination in its rankest form. It goes against every grain of Americanism,” Parsons said.

Parsons’ court order was necessary because the Public Building Commission, a governmental body that administers Daley Plaza, was concerned that the menorah might violate the Constitution’s First Amendment clause, which separates church and state.

Lubavitch had erected its menorah for six years in Daley Plaza, which stands before Chicago’s municipal buildings.

Rabbi Daniel Moscowitz, regional director of Lubavitch of Illinois, said that the Public Building Commission had been threatened last year with lawsuits by various organizations and required a $100,000 litigation bond from Chabad, which was paid by an anonymous donor.

The American Jewish Congress brought the initial case against the City of Chicago in 1985 for displaying a creche on public property.

In a famous summary judgment in 1986 favoring the creche, Judge Frank McGarr said, “This is a Christian nation.”

The Chicago Jewish Community Relations Council takes a firm stand against the menorah. “It has been the same position for many years. We do not back religious symbols of any kind on public property,” said Glady Iser, JCRC associate director.

Marc Stern, co-director of the AJCongress legal department in New York, said the AJCongress wrote the Lubavitcher rebbe four years ago offering help to place menorahs on private property, as did the Anti-Defamation League and Jewish federations. “We never had the courtesy of a response,” he said.

Responding to Stern’s statements, Lubavitch spokesman Rabbi Yehuda Krinsky in New York said, “I don’t think anyone has the right to tell anyone what to do.”

CAUSE OF DISSENSION

Krinsky maintained it was not Lubavitch but other Jewish groups that had brought dissension in the past, challenging Lubavitch positions.

“We were castigated from the left and the right. Lubavitch was always in the avant-garde for the benefit of the Jewish masses without discrimination. I think its track record will prove it very precisely.”

Chabad is no longer alone in erecting menorahs.

In Skokie, a menorah stands on the village green, placed there by order of retired longtime Mayor Albert Smith, who said last year that he had been “waiting for the time he could put up a menorah on the Village Green,” said Moscowitz of Chicago.

In February, the constitutionality of menorah lighting on public property will reach a heretofore unachieved level.

The case of a menorah in front of Pittsburgh’s City-County Building will be heard in the U.S. Supreme Court, the first time ever that Chabad has gone to the high court.

“This is a subject that should not be up for litigation at all,” said attorney Nathan Lewin, who filed the case on behalf of Chabad.

Lewin does not see the issue as one of government endorsement of any religion but rather a gesture of respect.

CONSTITUTIONALITY OF THE MENORAH

The Pittsburgh case was initiated by the American Civil Liberties Union, which contested the constitutionality of the menorah that was erected in front of the City-County Building.

The AJCongress will file a friend of the court brief. ADL will be co-counsel along with the ACLU.

The plaintiffs claimed that the city and county displays were unconstitutional because they advance “religion, preferring some religions over others.”

Lewin, an Orthodox Jew, said “government displays show the harmony of two faiths.”

Lewin reasoned that “the overwhelming preponderance of people are Christians, and I think it would be a folly on the part of the Jewish community to remove a Christmas tree.”

The ADL position, said Steve Freeman, director of ADL’s legal affairs department, is that “the best way to preserve the rights of any religious minority is to ensure that no religious displays are located on government property.

The Constitution, said Freeman, “has worked for 200-plus years.”