Public menorahs

Chabad-Lubavitch's campaign to place Chanukah menorahs in public places since 1974, and the legal and communal disputes it provoked

Public menorahs are large Chanukah menorahs that Chabad-Lubavitch puts up and lights in public squares and outside government buildings. The practice began in 1974 as part of the Rebbe's Chanukah campaign. In the United States it led to a series of First Amendment cases, including the Supreme Court decision County of Allegheny v. ACLU (1989), in which Chabad was a petitioner. It also caused a long dispute with other American Jewish organisations, which opposed religious symbols on government property.

Origins and growth (Chabad-side)

According to Chabad.org, in December 1973 the Rebbe said that "when a Jew kindles a menorah, literal light emanates from it and illuminates the street". It presents public menorahs as part of "the worldwide Chanukah awareness campaign spearheaded by the Rebbe". It says Chabad-Lubavitch lights "more than 15,000 menorahs in public squares around the world". Chabad.org's history of the campaign describes its early years:

• In 1974 Rabbi Abraham Shemtov lit a 4-foot wooden menorah in front of Independence Hall in Philadelphia.
• In 1975 a 22-foot menorah, paid for by the promoter Bill Graham, went up in San Francisco's Union Square.
• In 1979 President Jimmy Carter lit the shamash of a menorah near the White House. Shemtov had arranged it with Stuart Eizenstat.

The Philadelphia Inquirer dated the Philadelphia lighting to 14 December 1974. It described it as "what is believed to be the first menorah, or Hanukkah candelabrum, ever illuminated on public property".

The Teaneck, New Jersey, Jewish Community Council objected to a proposed menorah in 1981. In reply the Rebbe wrote that the public menorah "has been an inspiration to many, many Jews". He said it was "fully in keeping with the American national slogan 'e pluribus unum'". On its legality he wrote: "That it was also constitutional, legal and proper goes without saying since the President of the U.S. personally participated in it."

Fishkoff's account of the campaign

Sue Fishkoff's The Rebbe's Army (2003; journalistic, broadly sympathetic) puts the menorah campaign in the context of the Rebbe's mivtzoim, or mitzvah campaigns. She writes that the tefillin campaign of June 1967 "was the first of ten major 'mitzvah campaigns' proclaimed by Schneerson between 1967 and 1976 that marked Chabad's massive outreach push into the ranks of the Jewish unaffiliated". She notes that "Critics from the Orthodox world looked askance at the Rebbe's campaigns, believing that it cheapened religious practice to encourage non-observant Jews to perform isolated rituals without adopting the total lifestyle."

She describes Chanukah menorah-lighting as "a logical ritual for the Rebbe to seize upon as one of his outreach campaigns because the holiday itself demands that Jews publicize it". She adds that "In America, where Jews no longer faced persecution, Schneerson proclaimed that the mitzvah of publicizing Chanukah should be given new emphasis." She also quotes the Rebbe's letter to the Teaneck Jewish Community Council: "The Chanukah menorah… can, and does, bring many Jews back to their Jewish roots."

Fishkoff places the 1979 Washington menorah in Lafayette Park: "a thirty-foot menorah was raised in Lafayette Park, practically on the White House lawn". She recounts that Shemtov, at President Carter's request, lit all the candles on a small silver menorah given to the president, although it was only the fourth night of Chanukah. "Later, Shemtov learned that the Rebbe was disappointed with his decision." Shemtov told her: "The Rebbe didn't say I did wrong, he said he expected more steadfastness." She writes that most Chabad rabbis "actively seek to put them on public property, to illustrate the Rebbe's point that in America, Jews and the Jewish religion enjoy full legal and governmental protection". By her count, in 2000 "Chabad organized hundreds of public menorah lightings in forty-five states and Puerto Rico, and in close to sixty foreign countries."

Opposition from Jewish organisations

In the 1980s the main opponents of Chabad's public menorahs were other Jewish organisations. JTA wrote in 1988 that "Chabad's adversaries have been and continue to be Jewish groups and Jewish lawyers". Marc Stern of the American Jewish Congress (AJCongress) said that it had written to the Rebbe "offering help to place menorahs on private property, as did the Anti-Defamation League and Jewish federations". He added: "We never had the courtesy of a response." Steve Freeman of the ADL said that "the best way to preserve the rights of any religious minority is to ensure that no religious displays are located on government property". The Chabad spokesman Rabbi Yehuda Krinsky replied: "I don't think anyone has the right to tell anyone what to do."

In Los Angeles in 1985, the city attorney moved Rabbi Boruch Shlomo Cunin's lighting from the City Hall rotunda to the outside steps. The Los Angeles Times reported that the American Jewish Committee, the AJCongress and the ADL "remained unhappy" that the lighting would still take place on public property. Neil Sandberg of the American Jewish Committee said: "We admire Rabbi Cunin and we really wish he would do it on private property, so we could join him."

Chabad.org (Chabad-side) describes this as "significant resistance—particularly from certain sectors of the 'Jewish establishment' and from the ACLU".

Fishkoff on the critics

Fishkoff writes: "Probably nothing Chabad does delights and annoys American Jews more than these highly public and highly publicized outdoor menorah lightings." She records that "the overwhelming majority of those complaints came from other Jews, primarily from Jewish organizations". Mark Pelavin of the Reform movement's Religious Action Center told her: "We don't think religious symbols belong on public property." She quotes Marc Stern of the AJCongress: "To Lubavitch, the public menorah balances out the public Christmas tree ... To the American Jewish Congress, the menorah on public lands clears the path for the crèche and the cross." Stern also told her: "Lubavitch says, if you don't get Judaism endorsed by the government in equal measure with other religions, you send a message that Judaism is inferior. It's precisely that call for government approval that we find so objectionable."

According to Fishkoff, "Jewish opposition to Chabad's public menorah-lightings cuts across the denominational spectrum." In 1992 the Union of American Hebrew Congregations (UAHC), the Reform movement's congregational body, distributed a flyer "outlining how Reform groups could outflank Chabad by holding their own menorah-lighting ceremonies". The Orthodox Union president, Sheldon Rudoff, told the Forward in December 1992: "Ideally, we would prefer no displays of any religious symbols."

In Westborough, Massachusetts, in 2000, the selectmen at first refused Rabbi Michoel Green's request to put a menorah on the town rotary. They approved it on 26 June 2001. Debra Hachen, the local Reform rabbi, said: "just because the government allows it doesn't make it right." She later told her congregation "that those of us who believe in the separation of Church and State should make it a point not to attend this event". Green said: "And if we upset some Jews along the way, that's the price we'll have to pay." Fishkoff sums up the period as "the unsavory spectacle of Jews battling Jews, in courts and City Hall chambers, over what is essentially a matter of Jewish identity".

Litigation

County of Allegheny v. ACLU (1989)

Status: US Supreme Court ruling; the menorah display was upheld. In Pittsburgh in 1986 an 18-foot menorah stood outside the City-County Building, beside the city's 45-foot Christmas tree and a sign headed "Salute to Liberty". The Court recorded that "The menorah is owned by Chabad, a Jewish group, but is stored, erected, and removed each year by the city". It noted that "Chabad was permitted to intervene to defend the display of its menorah". The Court described Chabad as "an organization of Hasidic Jews who follow the teachings of a particular Jewish leader, the Lubavitch Rebbe". Chabad's case was argued by Nathan Lewin.

On 3 July 1989 the Court ruled that the county's crèche inside the courthouse was unconstitutional. It reversed the Third Circuit on the menorah. Justice Blackmun concluded that "the menorah display does not have the prohibited effect of endorsing religion, given its 'particular physical setting'". In the same opinion he wrote that the mayor's sign confirmed "that the display of the menorah is not an endorsement of religious faith but simply a recognition of cultural diversity". Justice Kennedy, joined by three other justices, concurred in the result on the menorah but would also have upheld the crèche.

The American Jewish Committee and the AJCongress filed amicus briefs urging affirmance, that is, against the displays. JTA had reported before the hearing that the ADL would act "as co-counsel along with the ACLU".

Aftermath of Allegheny (Fishkoff)

According to Fishkoff, Jewish organisations "chafed at what they called the Court's 'secularization' of Chanukah". She quotes a letter from the ADL's national director, Abe Foxman, to the New York Times: "It is ironic and troubling that Chabad… one of the most traditional observant Jewish groups, would argue that a Chanukah menorah is other than a religious symbol." She adds that the AJCongress, the American Jewish Committee, the UAHC and B'nai B'rith International "all issued similar statements. Chabad stood alone." Lewin told her "that he never claimed the menorah should be understood as a secular symbol". His argument rested on context: "You could hardly say this was propagating Judaism, when it was a relatively small menorah in contrast to the Christmas tree."

In December 1989 Pittsburgh's new mayor, Sophie Masloff, refused to put up the menorah. Chabad sued again, this time arguing free speech in a "public forum". It won in the district court and lost in the Third Circuit. Justice Brennan then set aside the Third Circuit's order, and "By another 6 to 3 decision, the High Court upheld Justice Brennan". Fishkoff reports that the menorah on the City Hall steps is "now owned by the city rather than Chabad", and that since 1995 Chabad of Pittsburgh "has been erecting its own, separate menorah on private land".

Kaplan v. City of Burlington (2d Cir. 1989)

Status: appeal court ruling against the display. A Reform rabbi, a Unitarian minister and a local lawyer challenged the City of Burlington's permit allowing the Vermont Organization of Jewish Education–Lubavitch to display a menorah in City Hall Park. The Second Circuit described the issue as "the unattended, solitary display on public property of an obviously religious symbol". Applying Allegheny, it held that "the display of the menorah in this case is unconstitutional". It reversed the district court, which had allowed the display. One judge dissented.

Chabad-Lubavitch of Georgia v. Miller (11th Cir. 1993, en banc)

Status: appeal court ruling in Chabad's favour. In 1990 Georgia's Attorney General advised that Chabad's planned eight-day menorah display at the State Capitol would breach the Establishment Clause, and the State did not allow the eight-day display. Chabad then sued. The en banc Eleventh Circuit rejected the State's argument that it needed to refuse the display to avoid an Establishment Clause violation: "We conclude that no such interest is present in this case." The court described the appellant as "the local affiliate of Chabad-Lubavitch". Nathan Lewin was again counsel.

Later cases (Chabad-side account)

Chabad.org credits Lewin with "successfully litigat[ing] dozens of cases" and names three more:

• Flamer v. White Plains (1993), in which Judge Sonia Sotomayor ruled that "the City may not deny Rabbi Flamer a permit to erect a fixed free-standing menorah in a City park during the Chanukah holiday because of the menorah's religious message";
• the 2002 Cincinnati Fountain Square case, in which Justice John Paul Stevens, according to Chabad.org, allowed the menorah "given the square's historic character as a public forum";
• "significant victories" in Atlanta and Grand Rapids.

Editor's note: the Flamer and Cincinnati rulings are quoted here only as Chabad.org reports them. This page has not yet checked the judgments themselves (Flamer v. City of White Plains, S.D.N.Y. 1993; Chabad of Southern Ohio v. City of Cincinnati, 233 F. Supp. 2d 975 (S.D. Ohio 2002) and 537 U.S. 1501 (2002)). It also has not found JTA's or other press coverage of the Burlington case, or how the Burlington ruling stands after later Supreme Court decisions.

Fishkoff writes that in the 1990s "the heart seemed to have gone out of the battle, and in the end, Chabad inevitably won". In Beverly Hills, Chabad's long dispute with the ACLU, the AJCongress and the ADL ended in 1997, when a federal district court struck down a two-day limit on displays. Stuart Levey, one of Chabad's lawyers, told her: "We've won all the important points." Lewin added: "When we win these cases, we not only get a judgment, but the town or city has to pay lawyers' fees of fifty-to-one-hundred thousand dollars. When towns know that's a prospect, they capitulate, quite frankly." Stern said of Chabad: "Nothing stops them."

Editor's note on Fishkoff: her account differs from the court record in places, and the court record is preferred here.

• She writes that "a consortium of Jewish organizations, together with the American Civil Liberties Union, sued Chabad and the City of Pittsburgh". The Supreme Court records that the ACLU and seven local residents sued, and that Chabad intervened to defend its menorah.
• She puts the 1979 menorah in Lafayette Park, while Chabad.org says the White House lawn.
• The December 1989 "6 to 3" Supreme Court order and the 1997 Beverly Hills ruling are reported here only on her authority.

See also

• Kapparot
• Eruv
• Mitzvah campaigns
• Agudas Chasidei Chabad
• Chabad and Trump