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A Constitution Day Message from President Zev Eleff

Christmas, Chabad Menorahs, and the Jefferson and Madison Debate about Church-State

The First Amendment to the U.S. Constitution demands, insofar as religion is concerned, two limitations on government: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The first promises that the government will not sponsor or endorse any religion. The second aspect protects religious practices of all faiths in the United States. People of all minority faiths hailed the so-called Establishment Clause for ensuring “constitutional agnosticism” of the government and the so-called Free Exercise Clause for protecting their rights to worship and observe the particulars of their faiths. In historian David Dalin’s words, focusing on the American Jewish reception of the Amendment, “it is often assumed that Jewish survival and religious freedom are most secure where the wall separating church and state is strongest and least secure where government and religion are intertwined.”

Since then, the courts have borrowed from Thomas Jefferson’s interpretation that called for a “wall of eternal separation between Church & State.” Jews and other minority faiths have also preferred the Jeffersonian point of view over James Madison’s acknowledgment that “it may not be easy, in every possible case, to trace the line of separation, between the rights of Religion & the Civil authority.”

Madison’s perspective was prescient. It has proven very challenging for government to isolate itself from all aspects of religion. In 1870, for example, Congress recognized Christmas, December 25, as a federal holiday—to the chagrin of strict “separationists.” Each year, newspapers report on the efforts of the United Civil Liberties Union and other likeminded groups to remove Christmas from the slate of federal holidays. The ACLU has put in writing that “when the government becomes embroiled in celebrating Christmas or any religious holiday as a holy or sacred occasion, it violates our constitutional commitment to maintaining a government that is religiously neutral.” Christmas defenders argue that the holiday has transcended specific religious terms and that its meaning within most American circles regards goodwill and other secular motifs.

More complicated, perhaps, is the matter of religious symbols on government property. In 1984, the U.S. Supreme Court ruled in Lynch v. Donnelly that nativity scenes, a crèche displaying the birth of Jesus, was permissible to display on government grounds. The American Jewish side was adjudicated immediately after that: the practice of Chabad-Lubavitch, a hasidic sect of American Judaism, to kindle giant menorahs on government sites.

In short order, Southern California became a legal laboratory for public Hanukkah menorah rituals. In 1985, officials moved a lighting ceremony from Los Angeles City Hall’s east rotunda to the outside steps, believing that the shift protected the integrity of the Establishment Clause and permitted Chabad latitude under the guise of free speech. From Chabad’s point of view, Rabbi Boruch Cunin believed that the change to an outdoor venue “would serve our purpose even more than an indoor ceremony.”

Chabad rejected all attempts at a compromise, asserting that they could not back away so long as Christmas trees remained in the public square. The sense, correctly it turned out, was that the courts would soon reverse the Lynch decision and outlaw nativity scenes on government property but preserve the right to mount Christmas trees on those sites. To Chabad, then, its task was to socialize stakeholders to the notion that a menorah was more akin to a Christmas tree (viewed as a wintertime symbol of good cheer) than a nativity scene (a religious symbol freighted with theological significance).

The same situation occurred in Pittsburgh, but with far greater implications. In 1986, the American Civil Liberties Union and a handful of Jewish agencies sued Chabad and the City of Pittsburgh over the 18-foot menorah that stood beside a 45-foot Christmas tree in front of City Hall. For three years, the case moved through the courts and was ultimately taken up by the U.S. Supreme Court.

Owing to this and its keen understanding of America’s political levers, Chabad’s legal team compared a public menorah lighting to a Christmas tree rather than a nativity scene. The general sentiment was that the former was religiously benign, practically a secular expression of wintertime cheer. Chabad’s rabbinical experts claimed that the menorah accomplished much of the same. “In my opinion,” stated Rabbi Yisroel Rosenfeld in his expert witness opinion, a “public display of a menorah on the steps of the City-County Building is a display of seasonal goodwill and a reminder of historical and political events, rather than a devotional religious exercise. It is an appropriate way for Jews to participate in a seasonal display with our Christian friends, next to whose Christmas tree the menorah stands.”

In July 1989, the Supreme Court ruled in the case of County of Allegheny v. American Civil Liberties Union that a crèche violated the Establishment Clause (thereby overturning Lynch) but a Christmas tree or Hanukkah menorah placed on public property was constitutional.

“American Jewish groups,” reportedly, “had mixed reactions to the Supreme Court’s complicated ruling.” The stalwart Jeffersonian separationists were glad that the high court had outlawed public nativity scenes but were aggrieved that the menorah was coupled with the so-described “secular” Christmas tree. They feared that the visibility of the menorah on public property hindered Jews’ ability to negotiating other First Amendment matters. Others, whether or not that had the Madisonian perspective in mind, rallied around Chabad, believing that the legal process had dutifully run its course. This group believed that church-state matters were rarely “easy” and that Chabad’s victory was part of the complicated ways that government and religion interact under the law in the United States. 

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