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Reaction Mixed on Court’s Ruling About Menorah and Creche Displays

July 5, 1989
See Original Daily Bulletin From This Date

American Jewish groups had mixed reactions to the Supreme Court’s complicated ruling Monday on which types of religious symbols may be displayed on government property without violating the First Amendment to the Constitution.

In a 5-4 decision, the justices ruled the display of a Christmas nativity scene, or creche , in a Pittsburgh courthouse violated the First Amendment’s Establishment Clause, which prohibits government endorsement of religion.

At the same time, the court ruled 6-3 that the posting of a menorah and Christmas tree outside Pittsburgh’s City Hall was constitutionally permissible, because they were part of a seasonal display that “has attained a secular status in our society.”

Orthodox Jewish groups welcomed the menorah ruling and were largely silent about the ban on the creche.

Conversely, non-Orthodox Jewish groups concerned about maintaining a strict separation between church and state were pleased at the ruling against the nativity scene and, in many cases, upset that the court did not go further to rule against the menorah display, as well.

The case, Chabad and County of Allegheny and City of Pittsburgh vs. American Civil Liberties Union et al., pitted the Lubavitch Hasidic movement and Orthodox allies against the ACLU and Jewish groups concerned about maintaining church-state separation.

Shortly before Christmas 1986, the Greater Pittsburgh Chapter of the ACLU sued to ban the display of an 18-foot-high menorah, owned by Chabad, next to a 45-foot-high Christmas tree outside Pittsburgh’s City-County Building.

The groups also sued to ban the display of a creche, donated by a Roman Catholic group, on the grand staircase of the Allegheny County Courthouse.


A U.S. district court upheld the constitutionality of both displays. But in March 1988, the U.S. Court of Appeals for the Third Circuit overturned that decision.

When the case went to the U.S. Supreme Court, several Jewish groups filed friend-of-the-court briefs urging the justices to forbid both the menorah and creche displays.

The groups included the Anti-Defamation League of B’nai B’rith, American Jewish Committee and American Jewish Congress, which filed its brief on behalf of the National Jewish Community Relations Advisory Council. NJCRAC is the policy-planning umbrella group for 110 local Jewish community relations councils.

Several Orthodox Jewish groups, on the other hand, urged the court to uphold the constitutionality of the menorah display.

They included the National Jewish Commission on Law and Public Affairs, National Council of Young Israel, Rabbinical Alliance of America, Rabbinical Council of America, Union of Orthodox Jewish Congregations of America and the Union of Orthodox Rabbis of the United States and Canada.

In deciding the case, four justices argued that both the menorah and creche displays were constitutionally permissible, and three justices voted that the First Amendment bars them both.

Only Justices Harry Blackmun and Sandra Day O’Connor agreed totally with the decision to uphold the menorah and ban the creche.

The majority opinion opposing the creche was written by Blackmun, and signed by Justices William Brennan, Thurgood Marshall and John Paul Stevens.

O’Connor wrote in a concurring opinion that the creche by itself “conveys a message to non-adherents of Christianity that they are not full members of the political community.”

Supporting the constitutionality of the menorah-Christmas tree display, O’Connor wrote, “The message of pluralism conveyed by the city’s combined holiday display is not a message that endorses religion over non-religion.”


But Brennan wrote, in a partial dissent, that “far from conveying the city’s secular recognition” of different holiday traditions, the display of a menorah “has the effect of promoting a Christianized version of Judaism.”

The four justices who felt that both types of displays were permissible under the First Amendment’s Establishment Clause were Justice Anthony Kennedy, who wrote a dissenting opinion; Chief Justice William Rehnquist; and Justices Byron White and Antonin Scalia.

They argued that banning the creche would show “an unjustified hostility toward religion” forbidden by the Constitution.

Nathan Lewin, the Washington attorney who argued the case on Chabad’s behalf, praised the menorah ruling. Chabad did not take a position on the creche display.

Lewin speculated that displays of menorahs on public property will be generally found constitutional, so long as a city has “lights strung across the street” for Christmas or displays “Merry Christmas” signs.

Rabbi Yehuda Krinsky, spokesman for the Lubavitch movement, urged the proliferation of menorah displays, calling on Jews to “better utilize the religious freedom guaranteed and protected by this great country.”

But several other groups argued that the decision upholding the menorah was a mistake.

“We deeply regret this aspect of the ruling, whose effect is to demean a hallmark of the Jewish faith that remains a powerful and meaningful Jewish symbol, regardless of its location or context,” said Rabbi Daniel Syme, vice president of the Reform movement’s Union of American Hebrew Congregations.

At least one Jewish organization was ambivalent about Monday’s ruling.

Daniel Mariaschin, public affairs director at B’nai B’rith International, said that while his group would have liked to see a ban on menorahs, as well as creches, “it could be that the court is right in judging some menorahs and Christmas trees (as) increasingly secular symbols of a winter holiday season.”

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