Hanukkah Menorahs Light Path for Nativity Displays

Christian Activists Cite Chabad Campaign as Precedent

By Nathaniel Popper

Published December 23, 2005, issue of December 23, 2005.
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The Hanukkah menorah, valued by American Jews as a symbol of religious freedom, is becoming a rallying point for Christian activists seeking to put images of Jesus into the public square.

In several recent cases, Christians have pointed to the erection of public menorahs as justifying their demand to put nativity displays on public property. The most recent incident was in Wellington, Fla., where Christian residents challenged the town’s holiday display last month. The town had both a menorah and a Christmas tree.

Residents, citing court rulings, argued that the tree was a secular symbol, and that they were entitled to a religious symbol to balance the menorah. The town council consented last week and erected a nativity scene on December 14, showing a baby Jesus in his mother’s arms.

Two weeks earlier, a seven-foot-tall menorah on a public square in Neptune Beach, Fla., led to similar results.

Both cases come one year after a federal judge ordered the city of Palm Beach to permit a nativity scene to be erected in a park where there had previously been only a menorah.

The spread of public menorahs is largely the result of a campaign begun in the late 1980s by the Chabad-Lubavitch Hasidic movement. Most Jewish organizations have traditionally opposed the insertion of religion into the public square, and many organizations originally fought the Chabad campaign for the same reason. In the past decade, however, menorahs have spread, clearing the way for other religious symbols, and not just Jewish ones.

“Chabad has actively sought out the appropriate forums, which has given other people the idea,” said Ed White, the trial counsel at the Thomas More Law Center, a Christian legal-aid organization that has been involved in many of the recent nativity cases.

“We say, keep the menorah, add a nativity,” White said.

The More Center and other Christian advocacy groups have pushed this point in various public venues, not only in town squares. In another pending case, a Catholic woman is asking the New York City Department of Education to allow more Christian symbols into her sons’ public schools. The mother said that the menorahs and Jewish history in her sons’ schools constituted a form of religious coercion in the absence of any parallel Christian education.

The push for more elaborate — and more explicitly religious — public holiday celebrations is particularly heated this year as a cadre of Christian activists has pushed for more public recognition of Christmas. But the central role played by menorahs in this debate has largely gone unnoticed outside the legal profession.

The menorah’s public face in America only began in the 1980s, when the grand rabbi of Lubavitch, the late Menachem M. Schneerson, began pressing his local emissaries to erect menorahs in town squares where holiday displays were already present. Following several court challenges to the menorahs, the Supreme Court in 1989 took up a case against a Chabad-erected menorah in Pittsburgh.

The American Civil Liberties Union challenged the menorah, which was set up opposite a Christmas tree in front of the Pittsburgh City-County Building. The ACLU also challenged a nativity scene set up on the city’s courthouse steps. Following an earlier precedent, the Supreme Court considered whether the holiday displays had any secular purpose. While a majority of justices determined that the tree was a secular symbol and the nativity scene was a religious symbol, they paused at the menorah.

“The display of the Chanukkah menorah in front of the City-County Building may well present a closer constitutional question,” Justice Harry Blackmun wrote in his majority opinion.

“The menorah, one must recognize, is a religious symbol; it serves to commemorate the miracle of the oil as described in the Talmud,” Blackmun wrote in a decision that ranged widely over Jewish history and religious thought. “But the menorah’s message is not exclusively religious. The menorah is the primary visual symbol for a holiday that, like Christmas, has both religious and secular dimensions.”

In one of the five other opinions issued in the case, Justice Sandra Day O’Connor disagreed with Blackmun that the menorah had any secular character at all, and said that a menorah standing alone, like a nativity creche standing alone, was not constitutional if the display was sponsored by a government. But she agreed with five other justices that a menorah could have a secular purpose if displayed alongside other holiday decorations.

The ruling has left an uncertain legal legacy for small towns seeking clear guidelines. Pasco County, Florida, was thrown into turmoil last year after a rabbi sought to install a menorah in a local library. The county authorities first responded by taking down all holiday displays. This year county attorneys spent two months drafting a lengthy memo outlining every possible holiday scenario, even detailing what county employees could do in their work cubicles. The attorneys were responding to the overriding message in the Supreme Court decision: Context is everything.

Chabad rabbis have also been caught in this uncertain legal atmosphere. This year, rabbis in Tennessee, New Jersey, Colorado and Florida have been fighting to erect menorahs. They have been supported by a leading constitutional lawyer, Nathan Lewin, who argued for the menorah before the Supreme Court in the 1989 Pittsburgh case.

“The bottom line is that you will never end up with no Christmas displays,” said attorney Alyza Lewin, Nathan Lewin’s daughter, who has worked with Chabad rabbis on the current cases. “If there will always be Christmas displays, you ought to always have menorah displays.”

In addressing such cases, many local judges have looked to O’Connor’s opinion in the 1989 case. Coincidentally, one of the most influential recent opinions was written by the nominee to replace O’Connor on the Supreme Court, Samuel Alito. In 1999, Alito, then a judge on a federal appeals court in Philadelphia, wrote a decision ruling that a menorah and a nativity scene were both religious symbols and could be erected with public money when they are part of a larger secular display. Chabad now says it erects close to 11,000 public menorahs around the world each year.

In Florida this past November, when Wellington residents began pressing for a creche, town attorney Jeff Kurtz said he looked back to the decisions by Alito and O’Connor. Kurtz said his first recommendation was that the municipality avoid any holiday display, but he went on to recommend that if Wellington had a menorah it had to permit a nativity scene as well.

This was the outcome feared by a handful of mainstream Jewish organizations when Chabad began its menorah campaign in the 1980s. In 1987, Marc Stern of the American Jewish Congress wrote a report titled “The Year of the Menorah.”

In the report, Stern said, “we believe the Lubavitch campaign undermines Jewish interests in a most fundamental way.”

“To the American Jewish Congress, the menorah on public lands clears the path for the creche and the Cross,” Stern wrote.

Both the American Jewish Congress and the American Jewish Committee submitted friend-of-the-court briefs opposing Chabad in the 1989 case. In the wake of that ruling, however, menorahs have been erected in a growing number of places by Chabad and other groups and opposition has been muted.

“We’re no more enthusiastic about Chabad’s campaign than we were before,” Stern told the Forward this week. “If it’s done properly, though, there’s not much that can be done legally to stop them.”

For Christian activists, the burgeoning of menorahs has been a welcome sign. “People see a menorah — or that Chabad is having a lighting ceremony — and they inquire and find out, ‘Heck, I didn’t know I could do that,’” said White of the Thomas More Law Center.






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