The New Republic

Few decisions of the U.S. Supreme Court have
been as roundly reviled, by comedians as well as
legal commentators, as the Court's 1984 ruling
in Lynch v. Donnelly upholding the constitutionalitv
of a municipally sponsored Nativity scene in Pawtucket,
Rhode Island. In that case the Court announced
what has become known as the "reindeer rule"—a tableau
depicting the Nativity of Jesus doesn't amount to
an establishment of religion if it is surrounded by secular
symbols of Christmas. (The Pawtucket display included
a "Santa Claus house," reindeer pulling Santa's
sleigh, candy-striped poles, and figures representing a
clown, an elephant, and a teddy bear. All that was
missing were the Smurfs bearing gifts for baby Jesus.)

The Court performed an encore in its decision last
July in the case of County of Allegheny, Chabad and City of
Pittsburgh v. American Civil Liberties Union et al. Five Justices
held that the First Amendment's establishment
clause was violated by a Nativity scene in the Allegheny
County Courthouse that had not been "junked up" (in
the words of one county official) with Pawtucket-like
secular decorations. But by a 6-5 vote, the Court upheld
the constitutionality of an 18-foot modernistic menorah
that for several years had presided over the nearby City-
County Building during Chanukah. The menorah is
owned by Chabad, a Jewish sect that follows the teachings
of the Lubavitcher Rebbe.

Justice Harry Blackmun, one of two justices who
voted to approve the menorah display while disallowing
the creche, offered this rationale: although the menorah
was "a symbol with religious meaning," its erection
on city property could be excused because it was overshadowed
by a secular 45-foot Christmas tree, and because
it was accompanied by a printed "Salute to Liberty"
from then Mayor Richard Caliguiri linking the
"festive lights" of the menorah and Christmas tree to
the "flame of liberty." Another mitigating factor for
Blackmun was that, unlike Christmas, Chanukah lacks a
conventional secular symbol.

The "Creche No, Menorah Yes" decision has come in
for as much abuse as the reindeer rule on which it
relied. (See "Ignore a Menorah," TNR, July 31, 1989.)
Less attention has been paid by the national news media
to the way the decision was received on Grant Street,
the headquarters of the city and county governments in
Pittsburgh and a synonym for the local political
establishment.

The story begins on July 3, 1989, hours after the
Supreme Court has given its blessing to the
menorah that, with one exception, has been
displayed in front of the City-County Building
since 1982. The lawyer for Sophie Masloff, Pittsburgh's
first Jewish Mayor, announces that the city
probably will not display the menorah this year.
"We're not interested in having the menorah and not
having some Nativity scene," explains City Solicitor
Dan Pellegrini. "From a social policy point of view, it
would not advance any harmony."

Two weeks later Tom Foerster, chairman of the Allegheny
County commissioners, says that the county
probably will not surround the Nativity scene with
Pawtucket-like decorations in order to comply with the
Supreme Court's decision. He adds that he is "putting
some feelers" out to the owners of downtown office
buildings to see if one of them would be willing to
display the courthouse Nativity scene, which is owned
by the Holy Name Society, a Roman Catholic organization.
Eventually the creche will find a new home in the
lobby of the headquarters of Mellon Bank, which also
displays a menorah outside its building during the holiday
season.

This all would seem like a sensible compromise to a
church-state separationist or someone who makes his
living parsing Supreme Court opinions about the establishment
clause. But storm clouds have been gathering.
Since the decision and the city's surprising response,
Chabad supporters have been pleading with the Masloff
administration to reconsider its plan not to display the
menorah. In August, Rabbi Yisroel Rosenfeld, executive
director of Pittsburgh's Yeshiva Schools, writes a letter
to Lew Borman, the Mayor's liaison to the Jewish community,
complaining that banning the menorah from the
city's holiday display would "have the result of sending
a clear message to the populace of this country: that this
is a Christian country and others are not welcome."

The rabbi pointedly notes that "our friend, the late
Richard Caliguiri" (the Mayor who died in office in
1988) had rejected requests from the ACLU to discontinue
the menorah display. Although organizations like
the American Jewish Committee and the American Jewish
Congress oppose menorahs on public property,
Borman discovers over the ensuing months that many
Pittsburgh Jews agree with Chabad that the Christmas
tree the city will continue to display is a religious Christian
symbol and therefore should be "balanced" with a
menorah. Still, Mayor Masloff holds fast: no menorah.

On December 15 Chabad, joined by three individual
plaintiffs, files suit in the US. District
Court to prevent the city from interfering with
its erection of the menorah outside the City-
County Building. Echoing an argument that it made in
the original case (but that had little effect on the reasoning
of either the majority or the minority), Chabad
maintains that the city has created a "public forum" in
the area in front of the building, a forum from which the
symbolic free speech represented by the menorah cannot
be barred.

The city regards the invocation of the public-forum
doctrine in this case as bizarre. Not so Senior US. District
Judge Barron McCune, who on December 20—two
days before the beginning of Chanukah—issues a preliminary
injunction forbidding the city from interfering
with the erection of the menorah on the City-County
Building steps. The judge stipulates that Chabad adherents
will erect the display; in the past city workers did so.
For good measure, the judge also orders that the menorah
be accompanied by the secularizing "liberty" proclamation,
a requirement that is hard to square with the
"public forum" theory under which the menorah is Chabad's
creature, not the city's. McCune, whose 1986 ruling
upholding Grant Street's menorah and Nativity
scene was the genesis of the Lynch v. Donnelly decision,
engagingly prefaces his ruling with the comment that
"whatever I decide, I will probably be reversed."

Hoping he is right, the city launches the sort of
frenzied appeal process usually associated with death
penalty cases. In one of many ironies in this affair, the
appellate judge from whom the city seeks a stay of
McCune's injunction is Senior Judge Joseph Weis of the
3rd US. Circuit Court of Appeals, who dissented from a
1988 3rd Circuit decision holding that both the menorah
and the Nativity scene violated the establishment
clause. This time Weis disappoints supporters of the
menorah. On December 21 he stays McCune's order,
saying, "I am not convinced that this is a public forum."

The next day, in response to an appeal by Chabad, a
panel of the 3rd Circuit agrees with Weis. Undaunted,
Chabad asks Supreme Court Justice William Brennan,
the Circuit Justice for the 3rd Circuit, to reinstate
McCune's injunction preventing the city from interfering
with the menorah display. On December 22 Justice
Brennan obliges. His action is the second example of
judicial role reversal: in the July decision Brennan
voted to hold both the Nativity scene and the menorah
unconstitutional.

The city promptly appeals Brennan's action to the
full Supreme Court. Meanwhile, on December 26, the
fourth day of Chanukah, the menorah is erected. Two
days later the Court refuses the city's request to stay
McCune's order. Chief Justice William Rehnquist and
Justices John Paul Stevens and Antonin Scalia indicate
that they would have granted the city's request.

Chabad has thus succeeded in clothing its portion of
the public square, and victory is sweet. But, predictably,
Christian Pittsburghers complain that "our" religious
display (the Nativity, not the Christmas tree) is now
banned from government premises but "theirs" isn't.
Such attitudes aren't confined to bigots or radio talkshow
types. Injustice Anthony Kennedy's dissent in last
summer's "Creche No, Menorah Yes" ruling, he peevishly
asked if "those religions enjoying the largest following
must be consigned to the status of least-favored
faiths so as to avoid any possible risk of offending
members of minority religions."

Then, on the evening of December 28 someone
spray-paints "PLO" on the "Salute to Liberty" proclamation
that is attached to the menorah. Police say that
whoever defaced the sign could be charged with ethnic
intimidation and desecration of a venerated object. But
wait. What the vandal defaced was not the menorah but
rather a sign whose raison d'etre was precisely its secular
content. The anonymous scrawler could argue that
he was acting on the same "public forum" theory advanced
by Chabad. If the area in front of the City-County Building is open to free speech, symbolic or
otherwise, why should pro-PLO propaganda be
excluded?

From this chronicle it is obvious that the combatants
in Pittsburgh's menorah wars have been
faithful to the spirit if not the letter of recent
Supreme Court pronouncements in this area.
That spirit is one of dissembling about what is really at
stake in the debate over religious displays at government
buildings. It is simply not credible that the religious
character of a menorah or a reverent depiction of
the Nativity can be subsumed in a three-ring-circus
celebration of what Justice Blackmun called the "winter
holiday season." And it is disingenuous to suggest that
the Jews and Christians who rallied round the menorah
and the Nativity respectively were motivated primarily
by a concern for free speech or an open public forum.
What they crave is government acknowledgment of their
miracles. If all they wanted to do was gaze upon a
Nativity scene or menorah in a public place, they could
stroll through any of several Pittsburgh neighborhoods—
or open an account at Mellon Bank.

Recognizing this, the liberal and conservative wings
of the Supreme Court have offered relatively coherent
alternatives to the reindeer rule and us progeny. The
so-called "accommodationist" view, held by Rehnquist.
Kennedy, Scalia, and Byron White, can be traced back
to Warren Burger's majority opinion in Lynch v. Donnelly.
In that opinion, having likened government religious
displays to Presidential proclamations marking Christmas
and theJewish High Holy Days, Burger observed
that the laws of religious divisiveness that gave rise to
the First Amendment's religion clauses "are of far less
concern today ... Any notion that these symbols pose
a real danger of establishment of a state church is
farfetched indeed."

The accomodationist view makes sense if one accepts
that the only "establishment of religion" proscribed by the First Amendment is the creation of a
national or state church. That is too big an "if" for me,
but there is no doubt that a triumph for the accommodationist
view would discourage holiday horror shows
like the litigation over the miracles on Grant Street. But
so would an acceptance by the Court of the counsel of
Justice Stevens in his dissent (joined by Brennan and
Thurgood Marshall) in last summer's ruling: "In my
opinion the Establishment Clause should be construed
to create a strong presumption against the display of
religious symbols on public property. There is always
the risk that such symbols will offend non-members of
the faith being advertised as well as adherents who
consider the particular advertisement disrespectful."

The life of the law. Holmes said, has not been logic; it
has been experience. Pittsburgh's experience suggests
that the wiser reading of the law may be Justice
Stevens's.

By Michael McGough

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