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.