Chabad replayed decades-old debate over menorah on City-County Building steps

Chanukah is just one story about the Jewish fight for religious freedom, when circa 165 B.C.E., the Maccabees revolted against Antiochus IV, ruler of the Syrian branch of the Alexandrian empire, to thwart his attempt to impose Greek culture on the Israelites and ban Jewish ritual practices.

Flash forward about 2000 years to 1989 and the fight for religious freedom for the Jews played out again, this time on the steps of Pittsburgh’s City-County Building, where Chabad was battling for its right to erect an 18-foot menorah alongside a 45-foot Christmas tree.

The conflict, which revolved around the interpretation of the Establishment Clause of the United States Constitution, ended up before the United States Supreme Court in The County of Allegheny v. The American Civil Liberties Union. The case was ultimately decided in a 100-page opinion, by a 6-to-3 vote, allowing the menorah to remain on its public perch but accompanied by a slew of supporting and dissenting opinions drafted by the justices on just about every aspect of the case.

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Two lawyers who had been involved with the case — on opposite sides — presented their arguments once again last week, but this time in front of local Jewish learners enrolled in Chabad’s Jewish Learning Institute course on the “Great Debates in Jewish History.” The December 6 lunch and learn program, held at the downtown offices of Buchanan, Ingersoll and Rooney, was the sixth and final class in the course.

Jon Pushinsky, who represented the ACLU and currently is the chairperson of the Pittsburgh ACLU’s legal committee, presented the arguments on why the public display of the menorah violated the Establishment Clause; Charles Saul, who represented Chabad as an intervenor in the case and currently is a partner at Margolis Edelstein, presented the arguments as to why the display of the menorah was constitutionally protected.

Because both attorneys are local, Rabbi Yisroel Altein, who teaches the JLI course, decided to invite them to present their respective arguments.

Both Saul and Pushinsky are Jewish, and Altein had no problem giving the ACLU attorney a forum to once again argue his case.

“Even though Jon [Pushinsky] is on the other side of the team,” Altein said, “we’re all on the same team now.”

After studying the complexities of the case, Altein said he had a new appreciation for the intricacies of American civil law.

“And I thought Talmud was complicated,” he told the two dozen class members as he introduced his speakers.

Altein explained the history of the erection of public menorahs and that the mitzvah of lighting the menorah is unique in that it requires a Jew to “publicize the miracle” of Chanukah.

“We do that by lighting the menorah where everyone can see it, to publicize it to the world,” he said.

In the 1970s, Chabad rabbis embarked on a mission to put menorahs in public spaces to “reach as many Jews as we can and let them know that Chanukah is here,” Altein said.

But once a religious symbol is placed on public property, a constitutional question is triggered as to whether such display is allowed, or whether it violates the requirement of separation between church and state.

Pushinsky explained that the ACLU’s argument was focused on the fact that the menorah was indeed a religious symbol and had been placed in a public space.

“The lighting of a menorah is a mitzvah,” Pushinsky said. “It is a religious commandment. And what is the government’s role in performing one religion’s commandments?”

A challenged practice “violates the Constitution,” Pushinsky argued, “if it creates a symbolic link between government and religion.”

The ACLU also argued that a Christmas tree on the steps of a courthouse can be distinguished from a menorah because Christmas is a national and secular holiday and Chanukah is a religious holiday.

Saul responded to Pushinsky’s points by looking at the location of the menorah, the extent of “government entanglement,” and whether the menorah is a “religious symbol,” and, if so, “what is the degree of religiosity?”

The placement of the menorah at the City-County building, Saul said, was appropriate because that forum is one where “people go to convey important messages,” such as advocating for LGBT or African American rights, or on behalf of Soviet Jewry.

“That’s where you go to state your case,” he said.

As for government entanglement, the city’s involvement was minimal, because Chabad owned the menorah.
But is the menorah a “religious symbol?” Saul unequivocally argued that it is.

“We never took the position that it was a secular symbol,” he said. “But what is the degree of religiosity?”

Saul noted that a menorah is not the same as a Torah, which is an intrinsically holy object, and that a menorah is often used as a political or cultural symbol.

“The real issue was whether the City of Pittsburgh was sending a message of endorsement of Judaism,” or whether, having the menorah alongside the Christmas tree, the message was instead about the freedom to choose one’s own religious beliefs.

If the menorah was banned, Saul pointed out, that would just leave the Christmas tree, whereas including the menorah in the city’s display would be a sign of “tolerance” and “inclusion.”

While the Supreme Court ultimately ruled in favor of keeping the menorah as part of the public display, its rationale is not particularly clear.

“There are so many different opinions,” Saul said. “The judges agree on different things.”

Saul thinks the court’s primary rationale can be found in the concurring opinion of Justice Sandra Day O’Connor that a reasonable person would view the menorah as a message of religious pluralism and freedom and not as the state endorsing a religious message.

As part of the same case, the court held that a crèche depicting the Christian nativity scene located on the Grand Staircase of the Allegheny County Courthouse, was in fact an endorsement of Christianity and would have to be removed.

“I never dreamed the court would split between the crèche and the menorah,” Pushinsky said.

He offered another theory as to why the court ruled as it did.

“My own personal view is that the real reason the Supreme Court decided the menorah aspect the way it did — which made no sense to our side, that they left the menorah and took away the crèche — is that at this particular time, there were no Jews on the Court. So, there was no one in conference to say that this is a religious symbol for a religious ceremony.”

Almost three decades later, the menorah at the City-County Building is still being lit annually, as it was on Dec. 13 this year, to mark the second night of Chanukah. PJC

Toby Tabachnick can be reached at
ttabachnick@pittsburghjewishchronicle.org.