RJ Fall 2001


'Tis the Season of Menorah/Creche Litigation

David Weinstein

For thirty years, the town of Jersey City, NJ commemorated the winter holiday season by placing a large nativity scene (or "creche"), a menorah, and a Christmas tree in front of its City Hall. To some onlookers, these symbols undoubtedly served as festive reminders of the season; to others, they were an unwarranted intrusion of religion into the public life of the town. And so, as has occurred in numerous American municipalities over the past two decades, these different perspectives found their way into federal court. In 1995, the American Civil Liberties Union filed a lawsuit demanding that the city remove the Christmas and Chanukah symbols on the grounds that their placement violated the "Establishment Clause," the constitutional prohibition against governmental support of religion. Agreeing with the ACLU, the court ordered the city to terminate its display.

Rather than take down its winter decorations, however, Jersey City responded to the suit by augmenting them. Officials hung Kwanzaa decorations on the Christmas tree and, alongside the menorah and creche, placed a plastic Santa Claus, Frosty the Snowman, and a sled. A sign declared the display a celebration of the "diverse cultural and ethnic heritage" of Jersey City's population. With these additions, Jersey City solved its constitutional problem. An appeals court found that the addition of the "secularized" holiday symbols turned the once unconstitutional municipal project into a permissible governmental commemoration of the winter festivals.

Lawsuits like the one in Jersey City are a seemingly permanent fixture of the holiday season. Yet resolving these disputes is no cause for celebration. The present legal framework for analyzing creche/menorah controversies requires courts to review the constitutionality of every display on a case-by-case basis, taking into account such arcana as the size of the various decorations, the ratio of secular to religious symbols, their distance from one another, and the proximity of the display to public buildings. To critics, these criteria represent, in the words of Supreme Court Justice Anthony Kennedy, the "jurisprudence of minutiae," which compels judges to issue rulings guided only by "intuition and a tape measure." To supporters, however, these rules are necessary to prevent religious minorities whose symbols are not on display from feeling like outsiders in their home communities.

The guideposts for judging the constitutionality of publicly placed menorahs and nativity scenes have developed by fits and starts. In the Supreme Court's first foray into this controversy, the 1984 case of Lynch v. Donnelly, the Court reviewed an ACLU challenge to the use of public funds by Pawtucket, RI for the construction of a Christmas display that included a creche, a Christmas tree, Santa Claus, several reindeer, and a Season's Greetings banner. The ACLU focused its challenge on the nativity scene, which reflected the religious aspects of the holiday. By a 6-3 vote, the Supreme Court sided with Pawtucket, noting that the U.S. government has long evinced support for holidays with religious significance through gestures such as presidential declarations and the closing of state offices on religious holidays. The Court held that the depiction, celebration, and promotion of the ostensible origins of a significant "national" holiday such as Christmas are legitimate secular goals for a municipality.

At first, the Lynch decision appeared to clear the way for public religious holiday displays, but the Supreme Court's next pronouncement on this issue considerably muddied the waters. County of Allegheny v. ACLU, a 1989 case, addressed two separate fixtures in Pittsburgh, PA: a creche mounted on the Grand Staircase of the Pittsburgh Courthouse surrounded by poinsettias and bearing a quotation from the New Testament; and an 18-foot menorah which stood next to a 45-foot Christmas tree a short distance away from the courthouse. Alongside the tree and menorah, a sign declared: "Let these festive lights remind us that we are the keepers of the flame of liberty and our legacy of freedom." Unlike the Pawtucket creche, the Pittsburgh displays were privately sponsored; but the City of Pittsburgh had allowed them to be placed on public property that was not generally open for citizen use. When the votes were tallied, a majority of the Court had found the creche unconstitutional, but the menorah and tree permissible. Even those justices who agreed on the result differed broadly on the reasons for it, and five of the Court's nine members set forth their views in separate opinions.

A few general lessons can be gleaned from the dissonant chorus which emerged from the Court. First, a majority of the Court embraced a view first articulated by Justice Sandra Day O'Connor in a separate opinion she wrote in Lynch which stated that the key question in evaluating the constitutionality of public religious symbols is whether or not a reasonable person would perceive them as governmental endorsement of a particular religious message. Applying this "endorsement" test to the Pittsburgh decorations, a majority of the Court determined that the stand-alone creche --stripped of the more "secular" holiday paraphernalia that had surrounded the nativity scene in Lynch--could appear to reflect government support for Christianity. As a result, the Court held it to be unconstitutional.

Second, the Court made clear that the public placement of a menorah is no more free from constitutional scrutiny than a creche. Although the justices noted that the Chanukah festival has national and cultural dimensions, they determined the menorah is, ultimately, a religious symbol. Moreover, the fact that Jews are a minority in this country does not mean that the display of Jewish symbols on public property cannot be perceived as an improper government endorsement of religion. Nonetheless, Pittsburgh's menorah/Christmas tree display survived legal challenge because, when viewed as a whole, it manifested state support for pluralism and liberty, rather than the city's endorsement of a particular faith.

The cacophonic rulings in Allegheny were then followed by a host of disparate decisions by other courts, as judges differed widely on what kinds of display could be perceived by passersby as an endorsement of religion. Some courts attempted to establish specific standards for decision-making, such as rejecting any religious displays where permission was granted in a manner which seemed to favor one religious group over another. In the 1996 case of American Jewish Congress v. City of Beverly Hills, a federal appeals court struck down an effort by Chabad-Lubavitch to erect a menorah in a public Beverly Hills park. In the past, the city had refused to allow unattended displays. It made an exception for the menorah, and then rejected a request to place a large crucifix in the same park. The court decided that the city's decision-making process was so lacking in standards as to invite favoritism of particular religious groups. As a result, the court determined the menorah had to go.

Other courts have sought to define conditions under which a public religious display will automatically be legal. Specifically, some judges have held that privately sponsored religious symbols are always permissible in a "public forum"--i.e. a place in which citizens are generally afforded free rein to express their views, such as a municipal park. As long as all viewpoints are welcome in a particular area, courts have reasoned, no passersby could mistake a private religious display for government endorsement of religion, any more than they would believe that a political protest in a public plaza bears the government's imprimatur. For example, in a 1993 decision, a federal court of appeals overturned a decision by the State of Georgia to deny an application, again by Chabad-Lubavitch, to place a menorah in the rotunda of the State Capitol. The rotunda was, as a matter of state policy, open for use by religious, educational, and cultural organizations on a first-come, first-serve basis, and the court saw no reason why a Chanukah display should be denied access to such an open forum. In support of its critique of the notion that religious symbols should be treated differently from other forms of expression, the court cited the following limerick offered by Chabad's counsel:

It seems to a young rabbi from Chabad
That the Constitution is exceedingly odd
To protect all speech in a public place
On AIDS, abortion, or race,
But to prohibit any person's mention of G-d

A similar outcome was reached in the 1995 case of Capitol Square Review and Advisory Board v. Pinette, in which the Ku Klux Klan protested against a ruling forbidding their placement of a large cross in a plaza next to the Ohio state capitol. The plaza was, by law, to be used "for free discussion of public questions, or for activities of a broad public purpose." Nonetheless, the committee supervising the plaza had denied the display, not because of the Klan's bigotry, but because the placement of a religious symbol in front of the state capitol appeared to endorse a religious point of view. A 7-2 majority of the Supreme Court agreed that the review board had acted improperly, but once again could not agree on why. Four justices--one short of a majority--decided that in no case could a private religious display in a public forum violate the principle of church-state separation. So long as the government used neutral principles to decide which kinds of expression could be placed in the public space, groups such as the Klan could display religious symbols there. Three other justices signed on to an opinion authored by Justice O'Connor, which stated that while the openness of an area to public speech and the private nature of the group responsible for a religious display weighed strongly in favor of the display's constitutionality, these are not the only factors to be considered by the courts. They left the door open to the possibility that some forms of religious expression by private groups might be found unconstitutional--even in a public forum.

In the wake of the Capitol Square case and the earlier Court decisions on the menorah/creche controversy, judges are left with a series of guidelines to aid their rulings on public religious displays, but no hard and fast rules. When private groups combine religious symbols with other more secularized mementos of the holiday season, or when religious displays are placed in locations considered open to public expression, courts will generally allow them to remain. On the other hand, when creches and menorahs are situated alone in a site connected to governmental authority, and particularly when the state picks up the tab for their construction, judges may well hold such displays to be constitutionally improper.

Given the amorphous standards promulgated by the Supreme Court, only one thing is certain. This winter, the sizzling of latkes and the songs of Christmas carolers are likely to be joined once again by another traditional holiday sound: the gentle thump of legal briefs being filed in yet another round of menorah/creche litigation.

David Weinstein is an attorney in New York City.


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