Friday, December 6, 2002 | return to: national


Supreme Court rules on public chanukiot

by JOE BERKOFSKY, Jewish Telegraphic Agency

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NEW YORK -- Chabad's annual campaign to light menorahs in public has ignited a new legal battle.

The battleground this time is Cincinnati, where the U.S. Supreme Court last week allowed Chabad of Southern Ohio to light an 18-foot chanukiah in the city's downtown Fountain Square.

Minutes before Shabbat -- and the first candle -- last Friday, Justice John Paul Stevens ruled that the city could not ban the chanukiah and other religious displays from the square.

The decision came after weeks of legal wrangling, moving first to U.S. District Court, which overturned the city ban, then to the 6th Circuit Court of Appeals, which reversed the lower court.

It was the first time in more than 10 years that the Supreme Court got involved in a chanukiah case.

Lubavitch Rabbi Sholom Kalmanson, regional director of Chabad of Southern Ohio, called the ruling a "miracle."

Speaking in a telephone interview just after lighting the candles on Monday, he said the legal battle evoked a sense of "déj vu. It was the same story, different date."

In fact, Chabad chanukiah-lighting has ignited nearly seasonal constitutional struggles over church-state lines in Cincinnati and other cities around the country for years.

The battlegrounds have stretched from public buildings such as Atlanta's state Capitol building, to city buildings in Grand Rapids, Mich., and White Plains, N.Y.

But in many places, opponents have given up the fight, and the giant Chabad chanukiot have become as seasonal as latkes and dreidels.

Over the years Chabad has erected about 1,000 public chanukiot nationwide, a group spokesman said, with about 25 percent of them on government property.

It is not clear whether this case will re-energize opponents of religious displays on public grounds or, given the Supreme Court's ruling, quell the battles once again.

Washington attorney Nathan Lewin, who took the Cincinnati case to the high court last week, said the struggle replicates the 1989 Supreme Court battle he waged -- and won -- for Chabad in Pittsburgh, which allowed an 18-foot chanukiah outside the City-County building alongside a 45-foot Christmas tree.

In that landmark ruling, the high court allowed privately funded religious displays on public grounds as long as the displays are identified as privately backed and that all religions have equal access.

For 18 years, Chabad has lit chanukiot in various Cincinnati city venues, including the mayor's office.

Last Chanukah, Chabad was told to apply for a permit for the chanukiah in Fountain Square, Kalmanson said, and he did so.

But in the spring, the city decided to reserve use of the square for seven weeks, from mid-November through early January, amid concerns that the Ku Klux Klan would try to install a cross there as it had for years.

While barring private, unattended overnight displays, the city put up two large evergreens for the holidays.

That meant the city was "squelching" Chabad's free speech and violating the constitutional ban on government establishment of religion, Kalmanson said.

By blocking anything but the trees, Lewin said, the city "was monopolizing all the speech" in Fountain Square.

Rabbi Michael Zedek, chief executive officer of the Jewish Federation of Cincinnati, predicted the Chabad chanukiah could well spark the "ugliness" the city was trying to hide by inviting the KKK to "jump in" and plant a cross.

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