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U.S. Supreme Court Intervenes to Allow Menorah in Cincinnati

November 4, 2002
See Original Daily Bulletin From This Date

Chabad’s annual campaign to light menorahs in public has ignited a new legal battle.

The battleground this time is Cincinnati, where the Supreme Court last week allowed Chabad of Southern Ohio to light an 18-foot menorah in the city’s downtown Fountain Square.

Minutes before Shabbat — and the first candle — last Friday, Justice John Paul Stevens ruled that the city could not ban the menorah and other religious displays from the square.

The decision came after weeks of legal wrangling, moving first to U.S. District Court, which overturned the city ban, then to the 6th Circuit Court of Appeals, which reversed the lower court.

It was the first time in more than 10 years that the Supreme Court got involved in a Chanukah menorah case.

Lubavitch Rabbi Sholom Kalmanson, regional director of Chabad of Southern Ohio, called the ruling a “miracle.”

Speaking in a telephone interview just after lighting the candles on Monday, he said the legal battle evoked a sense of “deja vu. It was the same story, different date.”

In fact, Chabad menorah-lighting has ignited nearly seasonal constitutional struggles over church-state lines in Cincinnati and other cities around the country for years.

The battlegrounds have stretched from public buildings such as Atlanta’s state Capitol building, to city buildings in Grand Rapids, Mich., and White Plains, N.Y.

But in many places, opponents have given up the fight, and the giant Chabad menorahs have become as seasonal as latkes and dreidels.

Over the years Chabad has erected about 1,000 public menorahs nationwide, a group spokesman said, with about 25 percent of them on government property.

It is not clear whether this case will re-energize opponents of religious displays on public grounds or, given the Supreme Court’s ruling, quell the battles once again.

Washington attorney Nathan Lewin, who took the Cincinnati case to the high court last week, said the struggle replicates the 1989 Supreme Court battle he waged — and won — for Chabad in Pittsburgh, which allowed an 18-foot menorah outside the City-County building alongside a 45-foot Christmas tree.

In that landmark ruling, the high court allowed privately funded religious displays on public grounds as long as the displays are identified as privately backed and that all religions have equal access.

Ironically, Stevens, who opposed the Pittsburgh menorah 13 years earlier, struck down the Cincinnati menorah ban this time, calling the square a “traditional public forum” open to privately funded displays.

Stevens “has seen the light,” Lewin said, and now “history repeats itself.”

For 18 years, Chabad has lit menorahs in various Cincinnati city venues, including the mayor’s office.

Last Chanukah, Chabad was told to apply for a permit for the menorah in Fountain Square, Kalmanson said, and he did so.

But in the spring, the city decided to reserve use of the square for seven weeks, from mid-November through early January, amid concerns that the Ku Klux Klan would try to install a cross there as it had for years.

While barring private, unattended overnight displays, the city put up two large evergreens for the holidays.

That meant the city was “squelching” Chabad’s free speech and violating the constitutional ban on government establishment of religion, Kalmanson said.

By blocking anything but the trees, Lewin said, the city “was monopolizing all the speech” in Fountain Square.

Neither Cincinnati City Solicitor Rita McNeil or other city officials returned calls seeking comment.

But the American Israelite, Cincinnati’s Jewish paper, reported that Mayor Charlie Luken was “disappointed” with the Supreme Court’s ruling.

City Councilman James Tarbell was quoted as saying that any citizen, “including the rabbi,” would have been free to decorate one of the city trees rather than erect a menorah.

Much of the city’s focus, however, seemed to revolve around a stated campaign to prevent overcrowding in a busy holiday shopping area.

The city decision also appeared to be part of a quieter effort to block the KKK from resurfacing — in a city rocked by racial rioting in recent years.

Rabbi Michael Zedek, chief executive officer of the Jewish Federation of Cincinnati, predicted the Chabad menorah could well spark the “ugliness” the city was trying to hide by inviting the KKK to “jump in” and plant a cross.

“The public display of a chanukiyah is all well and good,” he said, using another word for menorah. But “if, God forbid, I were a member” of the KKK “wanting the publicity that it would generate for them, I would jump on it.”

“In terms of the mitzvah — wonderful. In terms of the loss for the entire community, it’s a great loss.”

Marc Stern, assistant executive director of the American Jewish Congress, which has long spearheaded efforts to remove religious symbols from government property, criticized Chabad’s tactics.

“One has to question the sanity of Chabad. They’re so hellbent on putting up menorahs that they’re willing to run the risk” of KKK actions, Stern said.

But Kalmanson said the city — not Chabad — is guilty of “fear-mongering” by continually raising the KKK flag as an issue.

Kalmanson said he tried for weeks to negotiate various solutions with city officials over the Fountain Square ban, but the talks stalemated.

Michael Rapp, director of the Jewish Community Relations Council of Cincinnati, said that the city had created what became a free speech battle with national impact.

“I’m not sure how the city can take a public forum, and say that for part of the year, it’s not going to be one.”

That’s exactly the argument that Chabad made in court.

U.S. District Court Judge Susan Dlott echoed that reasoning, saying the ordinance “discriminates against religious speech” during the holiday season.

But when the 6th Circuit Court of Appeals issued a stay of the city ban, Chabad spokesmen said, they decided to make their case to the Supreme Court because they had won the war before.

For his part, Lewin predicted that the latest high court opinion will not extinguish future legal battles over public Chanukah displays.

“There’s no end to these challenges,” Lewin said. “The ingenuity of the people who oppose menorahs is limitless.”

Stern of the AJCongress said it remained far from clear just what legal impact the Supreme Court ruling would have.

Stevens’ opinion was “cryptic,” Stern said, and did not even cite free-speech or establishment clause law.

Instead, referring to an area of law called “over breadth,” Stern said, Stevens termed the local law too sweeping because it banned not just religious displays but all speech.

Just whether the menorah debate will end this week remained uncertain as well.

While the full Supreme Court did not move to add to Stevens’ ruling, on Monday the city of Cincinnati asked the 6th Circuit Court of Appeals for a “clarification” of its ruling upholding the city’s religious display ban, keeping the issue alive for now.

The court denied the request.

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