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by Peretz Bronstein and Judge Bernard Fuchs Volume 4 , Issue 2 (Dec, 1990 | Kislev, 5751)

Public Menorah Lightings: An Advocate's Perspectve

By Peretz Bronstein

Every Chanukah the flames of grand public menorah lightings brighten the winter night. From the steps of Los Angeles city hall to the White House lawn, these inspiring holiday displays reawaken feelings of Jewish pride within countless estranged Jews. Cities and towns nationwide have offered their village greens and local plazas to host Chanukah celebrations. Even for the Gentile, the warm lights of the menorah tell a universal story of freedom's victory over those who seek to oppress us.

Although a relatively new practice, public menorah lightings have elicited an enormously positive response. Literally thousands of assimilated American Jews have been positively affected. Many with little or no Jewish community involvement have been drawn back into the fold by the inspiring sight of a burning Chanukah light in the center of town. Local rabbis across America can testify to the practice's tremendous success. One rabbi commented that he receives more response from one public menorah lighting than from one hundred adult education classes.

Despite the positive results of public menorah lightings, some question their appropriateness. Liberal Jewish America has long viewed public religious displays, by any religion, with a negative eye. Such displays, it is argued, threaten the separation of church and state which is the foundation of the precious religious freedom experienced by American Jews. It is the goal of this article to address this concern with respect to public menorah lightings.

Some claim that permitting menorah lightings in city parks violates the Constitutional guarantee of separation of church and state. While the First Amendment to the U.S. Constitution permits ?the free exercise? of religion, it prohibits ?an establishment of religion? by any governmental authority.

Endorsing State Religion

It is argued that when a municipality permits a menorah lighting in a city park, that municipality is somehow endorsing Judaism as an official state religion. However, a recent U.S. Supreme Court decision dealing with public religious displays gives public menorah lightings the high court's express Constitutional endorsement. In the 1989 decision, Allegheny County v. Pittsburgh A.C.L.U., the court upheld the constitutionality of including a menorah in a holiday display outside of a Pittsburgh, Pennsylvania city and county government building. The court ruled that, in addition to the strictly Jewish religious message, the menorah conveyed a general message of religious freedom meaningful for all Americans. According to the Court, since the menorah has meaning beyond its strictly religious significance, the display did not constitute an impermissible governmental endorsement of religion in violation of the Constitution's Establishment clause.

This decision is a good first step toward clearing the way for a freer expression of American religiosity in public. The opinion of Justice Kennedy, joined by Justices Rhenquist, Scalia and White, presents an approach to Establishment Clause analysis that is particularly compelling. Justice ?Kennedy points to the long American tradition of governmental accommodation of the religion. He gives legislative prayer, President Washington's proclamation of a national day of thanksgiving to God, and the inscription ?In God We Trust? on the dollar bill as a few examples. The Supreme Court previously affirmed one of these practices in the 1983 decision Marsh v. Chambers, permitting states to employ legislative chaplains. In the words of Justice Kennedy, government ?accommodation? of public religiosity is, in fact, quite congruous with ?our Nation's historic traditions of diversity and pluralism ??

Of course, as Justice Kennedy points out, the Constitution does not permit government to ?coerce anyone to support or participate in any religion or its exercise? and does not permit government to "establish a [state] religion." It would be unconstitutional, for example, to require, by law, participation in prayer or religious activity. However, the Establishment Clause does not, nor was it ever intended to, impede government's friendly accommodation of religion by allowing religious groups to use public facilities under the appropriate circumstances.

It is submitted that this approach to Establishment Clause analysis will protect the Jewish community from constitutionally impermissible government coercion regarding religion, while remaining true to this nation's history of open and free public religious expression in the framework of pluralism.

Jews Should Be Consistent

The policy argument against public menorah lightings is that we, as Jews, are a tiny minority, surrounded by a dominant religion with a missionary agenda. If the majority religion were given free reign to display its symbols publicly, the results could be disastrous. At best, we would be made to feel like outsiders, a tolerated minority. At worst, we would find ourselves victims of overt proselytization or even anti-semitic attacks. Therefore, just as we oppose other religious public displays, we Jews should be consistent and keep our menorahs off public property.

The above concern is valid. However, a serious question exists as to whether the solution is to keep menorahs out of public parks and city plazas. Winter holiday displays are a fact of American life. Since the nation's inception, green and red holiday displays and decorated trees have lined American main streets, schools and parks.

For Jews to say that we are opposed to public religious symbolism for all religions and, therefore, will not display our menorahs publicly is like the ostrich with its head buried in the sand. The dominant religion surrounds us with its symbols anyway. Our children see it and are inevitably affected. The gentile ?holiday spirit? touches almost every Jew's life.

We, as Jews, can react one of two ways. We can ignore it, hoping that this yearly bombardment goes away. Or we can affirmatively counter in a positive, Jewish manner. Public menorahs are the Jewish answer to the gap felt by many Jews during the holiday season. The dominant religion will display its decorations anyway, whether we light our menorahs or not. Why not give a Jewish child the opportunity to feel some pride about his or her holiday, when his Gentile friends are doing the same?

In light of the great past success, public menorah lightings have had in reawakening Jewish awareness, the Supreme Court's approval of public menorah lightings is truly welcome. With Constitutional questions laid to rest, it is hoped that this Chanukah the entire Jewish community can unite to enjoy the menorah's eternal message.

Peretz Bronstein is an attorney who specializes in corporate and securities litigation. He is associated with a major New York law firm.

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Menorahs on Public Land

By Bernard Fuchs

Proud displays of Jewish symbols and forms of religious practice have the power to nourish Jewish pride. They can reinforce Jewish identity and promote Jewish solidarity. There is, nevertheless, sharp disagreement both among Jews and in the general community about the practice in recent years (mainly by Chabad) of mounting giant menorahs on public property to celebrate Chanukah.

The disagreement occurs mainly on two levels. One is the legal issue raised by the first amendment to the U.S. Constitution (as well as state constitutions which have com?parable provisions). The other issue may be expressed by the age-old question, "Is it good for the Jews" to mount this display, no matter how legal it is. And since the pertinent legal interpretation of the first amendment remains relatively unsettled, there is a subsidiary question: "Is it good for the Jews" if the first amendment permits religious displays on public land?

The pertinent portion of the first amendment says that

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof"

Although the prohibition is addressed to Congress, it is now well settled that it applies also to the states and their municipalities. In Allegheny v ACLU, 492 U.S. ____, 106 L.Ed.2d 472 (1989) the Supreme Court ruled that a nativity scene dis?played alone in the Allegheny County courthouse was impermissible. But a menorah was allowed to stand next to a Christmas tree in front of a government office building as part of a ?secular? holiday decoration.

Since then, the U.S. Court of Appeals has ruled in Kaplan v City of Burlington, 891 F2d 1024 (1989) that a menorah may not be displayed in the Burlington, Vermont city hall park because that signified government endorsement of its religious message. As it happens, the city later sidestepped this decision by placing a Christmas tree near the menorah to bring itself within the Allegheny ruling.

Allegheny not the Last Word

It must be clear to a thoughtful observer that the Allegheny case is not the last word about religious displays on public land. One reason for this is that it is the product of shifting major?ities. Three justices would have barred display of both the creche and the menorah. Four would have permitted both. The remaining two disapproved of the creche because it stood alone inside a courthouse, but permitted the menorah because it stood outside a government building with a Christmas tree and a sign saluting liberty.

Another reason Allegheny is not the last word is the view taken by the justices of the menorah's religious status. Although all agreed that it is a religious symbol, some thought it has, over time, acquired a secular meaning, too.

It may be possible to analyze the Christmas tree as a secular object. There is, I believe, no Christian religious tradition, ritual, principle or historical event in which the Christmas tree is even remotely involved. The tree is a remnant of North European pagan practices associated with the winter solstice. When Christianity displaced the pagan religions, the Christmas tree remained as an essentially secular decoration associated with the Christmas season.

In sharp contrast stands the menorah which, in its year round form, is described in Chumash as a ritual object which God commanded us to fashion. (Exod. XXV, 31.) Thereafter, it remained indispensable to Jewish religious life in the tent of meeting and the Holy Temples at Jerusalem; it still appears in every synagogue where Jews worship. The distinctive eight branched chanukiah is simply an adaptation of the older menorah form to celebrate another religious event, redemption of the Temple from the Syrio-Greeks who had defiled it. Such a symbol is no more susceptible of acquiring a secular meaning than is the cross or the creche.

The respective histories just summarized, of the Christmas tree and the chanukiah, imply convincingly that a menorah alongside a Christmas tree is a Jewish religious display set near a secular symbol associated with Christmas or at most, the symbol of an extinct religion. Accordingly, if the Allegheny principle survives, that of permitting ?secular? displays on public land during the period of the winter solstice, its accommodation of the menorah may not survive with it.¹

Such a development is, in fact, adumbrated by Kaplan v City of Burlington. (?A menorah is a religious symbol ... recognized as such by the general public.? 891 F2d at p. 1026). The upshot would be a first amendment which permits display on public land of Christmas trees and probably Santa Clauses, elves, reindeers and the full miscellany of ?secular? Christmas symbols but not crosses, creches, menorahs² or other authentically religious items.

Equality of First Amendment

If the Allegheny doctrine does not survive, another possibility (which four justices seemingly favored) is a first amendment which permits authentic religious displays on public land but presumably entitles every religion to the same privilege. The remaining possibility is for the Court to hold that any display on public land of religious symbols or of secular symbols identified with a religion, promotes excessive entanglement of government with religion; that it suggests impermissibly the ?establishment? of one or more religions and is, therefore, contrary to the first amendment.

The probable long term first amendment alternatives then, for displays on public land are (i) solely the "secular" items (or a combination of secular and religious items in a "secular" configuration) associated with a religious holiday; (ii) religious and secular items associated with a religious holiday (with equal access of every religion to a public situs for either class of displays or a combination of the two classes); and (iii) neither religious nor secular items associated with any religion permitted on public land. The question is, which of these alternatives is good for the Jews? An equally important question is, which of them is good for America? I believe the answer to both questions is the same.

A predictable result of allowing solely the "secular" items (which may be the outcome of Allegheny) would be displays of Christmas trees, Santa Clauses, elves, etc. with no Jewish or other competition. This would intensify the impression that the Christian mentality is the only legitimate one and all others are merely tolerated. There is no need to expand here on the psychological and social damage this would do to Jews and other non-Christians.

We could try to blunt that effect by putting the menorah in a secular configuration, if that remains permissible, or demanding concurrent displays of a ?non-religious? Jewish symbol, e.g., the Star of David. But that would do little more to advance the celebration of Chanukah than a display of latkes or dreidels. It would also probably arouse opposi?tion. The Star symbolizes another state as well as the dispersed Jewish people.

The second alternative would place the chanukiah in competition, on public land, not only with Christmas trees and Santa Clauses, etc., but also with creches and other portrayals of virgin mothers and possibly even crosses. We could also discover, at Easter time, (again on public land) crucifixes and representations of the Christ rising from the dead. Perhaps Jewish sensibilities could then be salved by developing a sculpted or molded representation of Moses contending with Pharaoh or of the Jewish people crossing the Red Sea. This would be justified, of course, by their association with the contemporaneous holiday of Passover.

All Have Equal Claim on Public Situs

The long term possibilities are not limited to Jews and Christians. Present immigration policies are rapidly increasing our population of Moslems, Hindus and Buddhists as well as practi?tioners of other faiths ranging from Bahai, Confucianism and Shinto to some pagan-like sects which have developed in Central America and the Caribbean. All will have an equal claim on a public situs for their religious displays - especially if they have holidays which occur contemporaneously with Christmas and Easter. Most cultures have some sort of observance at the winter solstice.

It is not difficult to visualize the scene at City Hall, Borough Hall, Grand Army Plaza and other popular public places. In December the display in these locations will include not only menorahs and Christmas trees, but also creches, portrayals of the three Kings at the manger and, if the season is right for them, Moslem, Hindu, Buddhist and even pagan religious or ?secular? symbols. A comparable prospect may readily be imagined under the first alternative (limited to ?secular? religious displays or those in the right ?configuration?).

I, for one, would be saddened -- even humiliated -- by such a spectacle. The sight of Jewish symbols which I have revered from childhood -- which invoke all that man can aspire to -- displayed like merchandise for sale alongside a host of competing items, would debase their meaning. When observed by Jews of little or no religious learning, such a scene would inescapably convey the message that all religions are equal and that ours can be congenially assimilated to the rest (ultimately, of course, to be lost among them in obscurity).

The process inevitably advanced by such displays is reminiscent of ancient pagan practice. The religion of the conquering or dominant people would not reject the subject or neighboring people's religion (as we have consistently done from earliest times). There would, instead, be a process of merger or absorption, assimilating one tradition to the other. This is the very tendency against which God solemnly warned us, anticipating our encounter with the Canaanites when Joshua led us into the promised land. (See Deut. XX, 16-18; Deut. XII, 2-3.)

Which, then, is the best choice for the Jews? I believe it is the third alternative -- to permit neither religious nor secular items associated with any religion on public land.

Confine Religion of Majority

The most important benefit of that policy would be to confine the religion of the dominant majority, Christianity, to private property. Christians are such an overwhelming majority in this country, that displays on public land as?sociated with that religion impact on the individual consciousness as a general public expression with implicit government approval. Even the concurrent presence of Jewish and other religious displays at the same situs does little to dilute this impression. And given the relative numbers of Christians and Jews, there is little possibility that the Jews will mount a display on every public situs where Christians do.

One could argue that, due to the vigor of such organizations as Chabad, the Jews would be well represented in com?munities where their numbers are substantial. But the policy against religious displays on public land would not be confined to those communities. It would apply, as well, in areas where there are few Jews or none. And that is where it may do the most good.

A young person reared in one of the relatively homogeneous Christian communities which are numerous in this country is at risk, for that reason alone, of concluding that this is a Christian country and not merely a country with a Christian majority. It is very much in the Jewish interest (as it is in everyone's interest) to prevent him from reaching that conclusion. Every person must be encouraged to assimilate the vision of America's founders, of a government which is hospi?table to the practice of all religions but which, in its policies and actions, is religion-blind.

Policy Against Display Applies Uniformly

In those homogeneous Christian communities, Christian displays on public land will seldom encounter competition. They will, for that reason promote the ?Christian country? mentality even more than corresponding displays in mixed communities. A legal policy against religious displays on public land would apply uniformly throughout the country and have the salutary effect of limiting the development of the ?Christian country? mentality in areas where it can most readily flourish.

Would there be any cost or detriment to the Jews in a policy against religious displays on public land? Some will be disappointed by the removal of the chanukiah from places like Central Park in New York, but if that is a cost, it is far outweighed by the assurance that no other religion will have a display on public land. The resulting message that government, while cordial to the private practice of all religion, endorses none -- is a pearl of great price. We dare not undervalue it.

Let us not lose sight, moreover, of the fact that this policy will still permit widespread public displays of Chanukah and other religious symbols. In New York and other cities in this country, many centrally located properties in high-traffic areas are held by Jewish institutions. There is no reason why they should not have prominent displays honoring Chanukah and other Jewish holidays as well. Indeed, every Jew can be encouraged to display the chanukiah in his window, on his porch or in his front yard.

Now we may return to the questions with which we began. I believe the First Amendment will ultimately be held (as it should) to bar all displays of religious symbols and secular symbols associated with any specific religion from public land. The present state of the law seems unsound and unstable.

If the Supreme Court continues to permit religious or ?secular? religious displays on public land, our position should depend on the finality with which we think the issue has been determined. If that is the Court's final position, I believe that displays of Jewish symbols on public land are good for the Jews if, and only if, there are other religious displays on public land in the community. In that situation, we must not permit the impression to prevail that we occupy a less dignified or significant position than other religious communities. If, however, we eventually discover a multiplicity of symbols representing many religions on the same public situs, we should consider removing ours and confining our displays to private property where they will appear without competition.

Finally, it is not good for the Jews or for America if the first amendment permits religious displays on public land. Accordingly, while the first amendment question remains unsettled (as it is now), we should pursue a ruling which will keep public land free of all religious displays and, consistent with the position we advocate, withhold Jewish religious displays from public land.

NOTES:

1. At least five justices seemed ready to permit a religious display as well on public land, in a ?context? which does not imply government endorse?ment of or proselytizing for a religious view.

2. Justice Blackmun's prevailing opinion suggested in Allegheny that evidence of the religious rituals which Chabad conducts at the public chanukiah would have changed his decision, but none had been presented in that case.

Bernard Fuchs has been a New York State judge for 14 years and is an active member of B'nai Brith, the American Jewish Congress and the Jewish Board of Family and Children's Services. He is a graduate of Harvard Law School and holds degrees from NYU Law School and CCNY.