Allegheny vs. ACLU: Good for Chanukah

(lubavitch.com) When the U.S. Supreme Court ruled that placing Chabad-owned menorahs in public spaces did not violate the establishment clause, it set a slab of precedent for Chabad centers to rest their menorah requests upon. But as seen with the 2006 hullabaloo over Seattle-Tacoma Airport’s menorah, the Supreme Court’s ruling, as well as numerous other federal and state decisions in favor of the menorah, is no magic bullet.

As the 21st  anniversary of the Allegheny vs. ACLU ruling nears, the experiences of Chabad representatives across the United States reveal just how useful or not the landmark decision has been in bringing Chanukah’s light, message of peace and religious liberty to the public square.  From Montana to Mumbai, from the Western Wall to the Great Wall of China, Chabad’s public menorah lightings number in the thousands.

In many locations, those who initially shared their discomfort over public menorahs now join in the celebration: town commissioners kindle menorah flames, Jewish community leaders vie for spots on the menorah dais. Menorahs have become such a part of civic life that city councils add on their own embellishments, arranging for inflatable dancing dreidles and electric signs proclaiming “Happy Chanukah.”

Thus far, Chanukah 2009 has for the most part been quiet, with little interferences in public menorah displays. Reflecting on the legal paper trail of Chabad’s menorah displays, Rabbi Yehuda Krinsky, Chairman of Lubavitch educational and social services divisions says that “while the majority of Chabad-Lubavitch representatives found little or no opposition, litigation against the menorah triggered a flurry of legal battles in several communities, in federal courts and others, all of which ultimately ruled in favor of placing the menorah on public property.”

Over the years, as calls from representatives lit up the switchboard at Lubavitch World Headquarters, Rabbi Krinsky’s office put them in touch with the well-known constitutional attorney Nathan Lewin of Washington, D.C. who has litigated many of the menorah cases. Lewin led Chabad’s case before the Supreme Court and created a packet of legal materials to help Chabad representatives present established precedents that consistently supported public menorah displays in a clear, concise manner. Attorney Charles Saul of Pittsburgh, PA saw Chabad’s landmark Allegheny vs. ACLU suit together with Mr. Lewin all the way through to the Supreme Court.

When Rabbi Yossi Kaplan of Chabad of Chester County, PA, ran up against opposition to his plans for a courthouse menorah, he called Saul for legal advice. Rabbi Kaplan didn’t think lighting a menorah at the county courthouse was such a big deal, but the commissioners hemmed and hawed and were on the verge of denying the request. Pursuing a legal remedy was not his strategy, but hearing the logic behind the many successful cases gave his request solid legal standing: First Amendment free speech rights and no violation of the establishment clause.

Not only did the arguments that prevailed in the highest court of the land impress the county’s legal eagles, but Rabbi Kaplan made sure the commissioners got an earful from the chairman of the state Republican party, the Young Republicans and politically connected friends at the local Jewish Federation.

“We are pleased that community and political leaders helped the county commissioners see merit in our request,” said Rabbi Kaplan at the time. This year, the courthouse menorah will go up as usual. I believe everyone’s happy with it.”

In Fort Collins, Colorado, the city denied Chabad’s request for a menorah in the publicly owned Old Town Square. “If you want to resolve the issue peacefully without going to court, you can try to educate them, but here it was not enough. They are still resistant,” said Rabbi Gorelik. In a compromise that was finally hammered out, the Downtown Development Authority allows Chabad to light the menorah on the square, but it cannot be left there overnight. The menorah spends the night on an outdoor patio of a pub that borders the square.

This year as every year since, the menorah lighting will take place at the Old Town Square. Hundreds are expected to participate on Sunday night, as Congresswoman Betsy Markey (D) will have the honors.

Doing everything short of seeking a legal remedy has made Rabbi Gorelik a minor media star. The New York Times interviewed him and wrote about the admiration of the general community in respect to his case. Over a dozen radio talk show hosts and TV journalists have interviewed Rabbi Gorelik. Newspaper editors have come out in favor of Chabad.

All the noise may not have solved the menorah placement problem, but it has helped Chabad draw crowds of 400-plus to the lighting ceremony. “We’re really on the map here now,” said Rabbi Gorelik, who has come to Ft. Collins just over four years ago. “It’s as if we’ve been here for ten years.”

Back in 1986, Rabbi Yisroel Rosenfeld of Chabad Lubavitch of Pittsburgh was caught off guard when the ACLU and Anti-Defamation League sued the city to have Chabad’s menorah taken down. The mayor had welcomed the menorah, but faced with the prospect of the lawsuit, the city was preparing to back down. “They weren’t going to follow through. That’s when we got involved,” said Rabbi Rosenfeld. “We felt, based on what the Rebbe said we should pursue it.”

In preparation for the case that would eventually be heard before the Supreme Court, Charles Saul, the attorney with Margolis Edelstein, in Pittsburg, reviewed the Rebbe’s discourses that touched upon benefits the state gives religion, such as the tax exemption for contributions to religious charities. Those arguments, recalled Saul, were eventually adopted by the Supreme Court.

While other state and federal cases won by Chabad after the Allegheny case broadened the base of support in favor of public menorahs, landmark decisions spread the message of Chanukah. Filled with information about Chanukah’s history, meaning and observance, Allegheny vs. ACLU is now part of the curriculum at many law schools. As the students study, the goal of publicizing the Chanukah miracle is achieved a thousand-fold. “What the Rebbe accomplished with his encouragement here is unbelievable,” said Saul.

Of the small pockets of resistance that still occur every year, Rabbi Krinsky says, “at this point in time, the number of instances where the placement of Chanukah Menorahs in public areas is refused, is rapidly diminishing. Whether we decide to actually litigate or not depends on local circumstances. But we are confident of prevailing, because after all is said and done, the menorah is a universal symbol of freedom and independence which totally conforms with the American ideal.”