Displaying the Menorah on Public Property: Is it Really a Good Idea?

The ideal manner of lighting the menorah is to do so in a place visible to the public, in order to publicize the miracle of Chanukah.(1) According to Jewish law, the menorah must be lit in every household and in the synagogue.(2) However, over the past few decades, there have been an increasing number of large menorahs displayed on public property and in government buildings. There is even an annual ceremony during which a large menorah is lit adjacent to the White House. This raises significant constitutional questions regarding government endorsement of religion and freedom of expression under the First Amendment of the U.S. Constitution.

Menorah Litigation

Perhaps the most famous case involving a public display of a menorah is County of Allegheny v. ACLU, 492 U.S. 573 (1989). In that case, the U.S. Supreme Court held that an 18-foot menorah on display in a building owned by the City of Pittsburgh did not violate the Establishment Clause. The menorah was part of a larger display, which included a 45-foot Christmas tree and a “Salute to Liberty” sign.(3) The Supreme Court stated that the display did not have “the effect of endorsing both Christian and Jewish faiths . . . [R]ather [it] simply recognize[d] that both Christmas and Chanukah are part of the same winter-holiday season, which has attained a secular status in our society.”(4) Since, according to the Court, the display taken as a whole (menorah, tree and sign) would not reasonably be understood as an endorsement of religion, it was constitutional.

Allegheny v. ACLU certainly did not resolve the issue of placing a menorah on government property. Even after Allegheny there have been many such cases, particularly involving members of the Chabad-Lubavitch movement (as in Allegheny) placing menorahs on public property. For a list of some other menorah cases click here.

Do Religious Symbols Belong in the Public Square?

Even if it is constitutionally permissible to place menorahs and other religious objects on public property, an important question remains: Should Jews be in favor of such practices, or is it better to advocate for a public square absent of religious symbols?(5)

It seems that there are three strong arguments against religious displays on public property. First, it is important to maintain a strong separation between church and state, so that no one religion is favored by the government. Second, the highly conspicuous display of Jewish religious items may lead to anti-semitism. Third, as was alluded to in the Allegheny case, Chanukah has (unfortunately) attained a “secular status” in American society; placing large menorahs next to Christmas trees in “seasonal holiday” displays detracts from the true sanctity and meaning of the holiday.

On the other hand, the absence of public displays of religion may contribute to a societal preference of secularism over religion.(6)

I would be interested to hear readers’ opinions on the matter in the comments below.

Notes:

(1) Shulchan Aruch, Orach Chaim § 671(5).

(2) Id. § 671(2), (7).

(3) The sign bore the mayor’s name, was entitled “Salute to Liberty,” and stated: “During this holiday season, the city of Pittsburgh salutes liberty. Let these festive lights remind us that we are the keepers of the flame of liberty and our legacy of freedom.” 492 U.S. 582.

(4) Id. at 616.

(5) This question was at the heart of American Jewish Congress v. City of Beverly Hills, 90 F. 3d 379 (9th Cir. 1996), in which the AJC attempted to prevent Chabad from erecting a menorah in a public park. See also, David E. Anderson, American Jewish Congress Decries Menorah Displays, South-Florida Sun Sentinel, June 19, 1987.

(6) See Pierre Birnbaum, On the Secularization of the Public Square: Jews in France and in the United States, 30 Cardozo L. Rev. 2431 (2009).

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5 Comments

Filed under American Law, News

5 responses to “Displaying the Menorah on Public Property: Is it Really a Good Idea?

  1. joe

    The counter argument might run such as thet Jews are left with the responsibility to be “a light unto the nations.” Even if in some spheres Channukah is viewed as secular when placed next to a christmas tree, there is also the chance that some people will be sparked to investigate the true meanings behind the things we do.

  2. CA

    I think the reason that Chabad lights menoiras in public is that their approach to life is: “Hashem is in charge”. So, we have to look at things from Hashem’s point of view first and foremsot. The positive spiritual outcome of publicizing a miracle is greater than whatever physical danger. Especially considering that the danger is quite far-fetched: 1) we live in a country, where most people are not anti-semitic (in fact, quite the opposite — and those who are already antisemitic don’t need further convincing from a menoira); 2) the slippery slope between Chabad displaying menoira in a public park and Washington imposing a particular religion on people is quite a journey.

    I don’t really understand the point about secularization of Chanukah. I think YU songs with people breakdancing lead to secularization of Judaism (since the songs themselves do not inspire any kind of connection to Hashem and lead to a more “chilaxed” approach to Yiddishkeit). Putting up a menoira reminds a secular Jew about the holiday. It goes right into the spirit of the mitzva whose point is to the illuminate the “outside”.

    Regarding public property: state allowing a group of people to use public property (which partially belongs to them, after all) to put up a symbol of their religion is not the same as the state imposing that religion on the masses. So, I don’t see how it is a violation of separation of state and church. Am I allowed to wear tzitzis while walking in a public park? Am I allowed to wear a kippa that says “Moshiach now” in public or have a bumper sticker that says “Don’t eat pork” if my car is parked at a public parking space? Am I not thereby using public property to relay a religious message to the masses?

    It seems that following this logic, in an attempt to protect our liberties, we are actually suppressing them (well, that’s the story of modern liberalism, starting from the mid-19th-century England).

    But in general, this is why the concept of public property is very strange. In a libertarian society, where all property would belong to some private entities, this question would disappear.

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  4. Larry Lennhoff

    When a controversy erupted over the newly arrived Chabad’s placement of a menorah on the town common near the town tree, the Jewish community was divided. A number of parents had been trying for years to get Xmas trees and other religious decorations out of the public school system – these parents opposed the menorah. I personally spoke up in favor of what I called the ‘open public square’. I proposed that the town allow space for religious displays year round – let the Hindus in town have a Diwali display, the Jews their Hannukia, Xmas trees, etc. This was not a popular stance in my Jewish community – the majority of people wanted no religious displays in public spaces at all, and the minority thought that trees and menorahs were fine in their season, but why extend things year round.

  5. CA

    A divided community is not such a bad thing. There is no reason why everyone should pursue the same goals and do everything the same way (and coerce the minorities — in a given opinion — to follow the majorities). We are a community divided in terms of which operating system we use (PC vs. Mac vs. Linux) or which cell phone company we subscribe too.

    The people who believe it a bad idea to use public space by members of the public to see what they see fit (which doesn’t violate other people’s rights) are free not to do that themselves. They can even encourage others. But they should not use the government to force the others to follow their point of view.

    I believe it is a bad idea to hold signs urging people to vote for closet socialists while standing on public property. So what?..

    I find it strange that some people felt so strongly against Christian symbols that they were also against display of their own religion’s symbols. Why do they care about what Christians do or display? Freedom of religion and separation of state and church mean freedom from coercion to believe in a particular religion. It means lack of “official” state religion (like Anglican church). It means co-existing with those with whom you disagree. It does not mean public atheism.

    (The same goes for the arguments like “when Chabad does X, it reminds me of Christianity”. And mikveh reminds us of baptism, right? Because they got it from us!)

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