Many municipalities throughout the U.S. have been gearing up for the winter holiday season by decorating public areas with Christmas trees, snowflakes, and even Chanukah menorahs. But the holiday displays are sometimes accompanied by not-so-festive controversies over the appearance of religious symbols in public places.
The debate over public displays of religion has been a longstanding one, despite numerous legal rulings in favor of the displays. For Jews, the increasing inclusion of the Chanukah menorah and other Jewish symbols in the pantheon of American civic and religious discourse highlights their mainstream acceptance in society.
Today, publicly displayed menorahs have become commonplace in the U.S., largely due to the efforts of the Chabad-Lubavitch movement, whose giant menorahs signal that the holiday season has arrived in any given community.
“Chabad is out there in the world to make sure that every Jew is not forgotten,” said Rabbi Yisroel Rosenfeld, a Pittsburgh-based Chabad emissary who has extensive experience on this issue due to his involvement in County of Allegheny v. American Civil Liberties Union (ACLU), the 1989 Supreme Court case concerning a publicly displayed nativity scene and an 18-foot-tall menorah in Pittsburgh.
The public display of religious symbols is anchored in the First Amendment of the Constitution in the so-called Religious Clauses of the Establishment and Free Exercise Clause. The Constitution states that “Congress shall make no law respecting an establishment of religion” in a portion known as the Establishment Clause, but proceeds to also ban “prohibiting the free exercise” of religion in a portion known as the Free Exercise Clause. The discourse surrounding these clauses has become one of the most controversial debates in America, yielding numerous legal battles being waged over the display of religious symbols in public areas.
Noted attorney Nathan Lewin, who argued Allegheny v. ACLU and many other cases involving public menorahs over the years, said the Supreme Court agreed in Allegheny v. ACLU that a public menorah display does not violate the Establishment Clause.
“The ACLU argued that having a menorah on public property seemed like the city of Pittsburgh was endorsing the Jewish religion and encouraging people to follow the religion,” Lewin told JNS. “[But] the Supreme Court was clear in this case that a total display with a Christmas tree and a menorah does not do that and shows the diversity of religion in the U.S.”
Following the case in Pittsburgh, numerous legal battles were fought over this issue in cities like Grand Rapids, Mich., and Atlanta. In 2002, Supreme Court Justice John Paul Stevens, who had dissented on the Pittsburgh decision, overruled an appeals court order and allowed Chabad to display a menorah in Cincinnati’s Fountain Square. Stevens said that due to the square’s “historic character as a public forum,” the city could not limit access to the area during the holiday season.
The Cincinnati case helped clarify what cities can and cannot do concerning access to public places.
“By now it has been established that there is a constitutional right to put menorahs in public places,” said Lewin.
Nevertheless, the public display of religious symbols continues to be contested in some local communities, with new cases emerging every year –though most don’t end up going to litigation.