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Deck the Halls With -- What?

December 20, 2007 By:
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A 9-foot menorah stood in 30th Street Station over Chanukah, while a giant Christmas tree was positioned there for more than a month.

It's been more than 18 years since the U.S. Supreme Court last examined whether or not decking out government property with Christmas and Chanukah symbols violates the notion of separation of church and state.

The 1989 decision in County of Allegheny v. ACLU of Greater Pittsburgh wandered into the murky waters of determining what exactly constitutes a religious symbol.

The justices found, in short, that the answer depends largely on the context.

But scholars, activists and plain old regular folks just looking to put up some festive decorations say that, rather than settling the issue, the case's legacy has largely been one of widespread confusion and unease about what's "kosher," constitutionally speaking, that is.

"One of the reasons we are here is because of an utter lack of clear guidance by the Supreme Court," said Steve Sheinberg, associate legislative director for the Anti-Defamation League, which distributes a "December Dilemma" guide to local governments and schools. "As a result, even people of good conscience are having a very hard time figuring out what is appropriate and what is not."

And so, in an era when religion has become increasingly politicized, the potential for controversy always seems to be hovering in the air.

Just ask Rabbi Elazar Bogomilsky.

The name doesn't ring any (secular) bells? How about that 2006 flap at the Seattle-Tacoma International Airport? For a few days, Bogomilsky was considered by some to be the rabbinic grinch who stole Christmas.

The media brouhaha that erupted stemmed from Bogomilsky's efforts to have a large menorah installed at the airport during the holiday season. The request was turned down; airport officials were uncertain if a menorah was inherently a more religious symbol than a Christmas tree.

Bogomilsky, affiliated with Chabad Lubavitch of Seattle, threatened to sue in order to have the symbol installed. In haste, airport authorities decided to take down all the Christmas decorations, rather than risk a lawsuit.

Many saw it as a literal "bah, humbug" on everyone's holiday.

Some vocal critics, such as pundit Bill O'Reilly, claimed that the rabbi's maneuverings were just symptomatic of a larger cultural "war on Christmas" -- part of the same trend that gave rise to the term "holiday tree."

Many mistakenly believed that Bogomilsky had demanded the removal of the Christmas decorations. In the end, the rabbi assured that he wouldn't move forward with any legal action. The airport put the plastic trees back up, though a menorah never joined them.

This year, the Port of Seattle, which oversees the airport, decided to head off any type of controversy. Ultimately, it chose to do away with any references to specific holidays, and instead spent about $300,000 on a series of decorative installations called "Winter Migrations," made up of depictions featuring snow-covered forests and birds making their way south.

"It's a great concept they came up with. It really brightens up the space," said airport spokesperson Perry Cooper, who insisted that there's no total ban on Christmas or Chanukah decorations. In actuality, the policy stipulates that no such symbols can be used in installations funded by public dollars; private vendors are free to decorate as they choose.

Bogomilsky doesn't buy it.

"It was such an easy thing for them to say 'yes' to," he noted, adding that Chabad sponsors public menorah-lightings at locations around the city, and indeed, throughout the country.

In fact, the placement of a Lubavitch-sponsored 18-foot-high menorah next to a Christmas tree outside the City-County Building in Pittsburgh was part of what prompted the 1989 court battle. Several Jewish groups, including the American Jewish Committee and American Jewish Congress, sided with the American Civil Liberties Union -- meaning they backed the notion that there's no room whatsoever for any religious symbols on public property.

The justices also examined the constitutionality of displaying a crèche -- a Nativity scene depicting the birth of Jesus Christ -- on the staircase leading into Pittsburgh's Allegheny County Courthouse. Donated by a Catholic group, the crèche displayed the banner "Gloria in Excelsis," which is Latin for "glory to God in the highest."

In a 5-4 decision handed down on July 3, 1989, the court ruled that the crèche was an example of the government promoting a particular religion -- in this case, Roman Catholicism -- and was a violation of the Establishment Clause.

Concurrently, a 6-3 majority decided that the menorah was permissible because it was part of a larger seasonal display that "has attained secular status in our society."

'A Theater of the Absurd'
Clear-cut guidelines? Maybe on paper, but hardly in practice, affirmed Charles C. Haynes, senior scholar at the First Amendment Center in Washington, D.C.

"The court has tried to work out what is permissible and what isn't. But once you push the justices to draw those lines, it becomes a theater of the absurd," said Haynes.

He added that the balancing act is highly subjective. Will placing reindeers, snowmen or even a menorah near a crèche render the overtly Christian images into a holiday display, and so be acceptable on government property? If this is possible in any fashion, Haynes then posed a different and perhaps impossible question to answer: How many reindeer, specifically, does it take to turn a religious display into a cultural one?

"Religious symbols may be allowed, but must be put up privately. That's the trend," he stated. "We need to be diverse in our displays, if they are going to pass muster. In spite of how absurd some of these lawsuits can be, we are, in painful ways, coming to grips with our religious diversity. We are no longer a quasi-established Protestant country."

Fear of a Day in Court
Part of the reason so many more menorahs in public places exist nowadays is not only because the Lubavitch movement has pushed hard on the issue, but because those public officials who were used to putting up Christmas decorations realized that they had to be more inclusive -- or they could end up in court.

And, at least this year, for example, Chester County officials have tried to be nothing if not inclusive.

The courthouse may be best known for the legal battle over whether its permanent display of a plaque with the King James translation of the Ten Commandments was unconstitutional.

The plaque remains in place, thanks to a split 2005 Supreme Court decision, which decided -- surprise, surprise! -- that the legality depends on the context of the display and whether the purpose can be viewed as inherently religious.

This holiday season, it would be difficult to argue that one religion is favored over another. On the lawn outside the Chester County Courthouse sits a menorah, a Christmas tree, a crèche and a Tree of Knowledge.

Come again?

Erected by the Free Thought Society of Greater Philadelphia, the tree is meant to represent atheism, and features a number of book covers hanging in the branches, including Judaism Beyond God by the late Rabbi Sherwin Wine, the founder of Humanistic Judaism.

Rebecca Brain, a spokesperson for the county, said that administrators had instituted a new policy this holiday season, opening up the lawn to displays put up by private groups that met certain criteria, including that they be insured for hazards, and that they "not cause a reasonable observer to think that the county is endorsing a particular religion."

Margaret Downey, the founder and president of the Free Thought Society, explained that the holiday season is a time of discomfort for "non-theists," and that the tree was part of an effort toward inclusion. She also noted that her group has a number of Jewish members.

"We were silent for too long. This display is long overdue," she added. "It's a war on intolerance. If we can be accepted here in Chester County -- without incident -- then there is hope for world peace."

In fact, Downey said that one of the spotlights facing the tree had been vandalized and needs fixing.

Rabbi Yossi Kaplan, religious leader of Chabad Lubavitch of Chester County, admitted that he doesn't quite "get" the Tree of Knowledge, but he likes the idea of opening up a public forum to a variety of viewpoints.

"Chanukah is about spreading the message of tolerance and religious freedom," said Kaplan, pointing out that this is the second year a large menorah has stood in front of the courthouse.

'Need to Be Politically Correct'

Not all municipalities, however, have followed the same approach. Take Philadelphia, for instance. While there was no shortage of outdoor menorahs in public spaces -- including on Independence Mall and Rittenhouse Square -- there isn't one displayed in or around City Hall.

On the other hand, it's hard to miss the big Christmas tree on the western side of the building, the side that directly faces bustling Market Street.

Actually, according to Randy Giancaterino, a spokesperson for the Office of the City Representative, it's a "holiday tree."

And there aren't any overt religious symbols during the holidays at SEPTA stations and offices, according to agency spokesperson Richard Maloney. Though Suburban Station is blanketed with wreaths and other green holiday decorations that might easily be identified with Christmas, Maloney insisted that they are holiday-neutral.

"We're just trying to do the right thing," he said.

Managers at Amtrak's 30th Street Station said that they felt the need -- and the pressure -- to decorate and be inclusive.

This year marked the second time Lubavitch House at Penn erected a menorah at the station, but it was the first time a public lighting ceremony took place there. A handful of people gathered to witness the flicking of the switch to turn on the electric bulbs; no blessings were recited, since no real flame was used.

While Lubavitch put up the menorah, the large Christmas tree situated in the station was placed there by U.S. Equities, the firm that manages the station.

"We make our decisions on a station-by-station basis," said Karina Romera, a spokesperson for Amtrak. "What might be right for Philadelphia might not be right for Albuquerque."

At the same time, inside the lobby at PECO headquarters on Market Street sat a Christmas tree, a menorah and a Kwanzaa candelabrum.

"We also want to represent the diversity of our employees, which is what we hope to do with our celebration of the season in the lobby," according to PECO spokesperson Cathy Engel.

For years, the Philadelphia International Airport installed a series of giant dreidels -- clearly a secular symbol -- in all baggage-claim areas. But last year, after checking with their lawyers, airport officials decided to include a menorah in the annual holiday display in the food court, between terminals B and C, explained airport spokeswoman Phyllis VanIstendal.

"We just need to be politically correct in this environment," she said.

According to ADL's Sheinberg, government buildings that allow their space to be used for religious displays do present a quandary. After all, what's to prevent a hate group, such as the Ku Klux Klan, from claiming the same First Amendment rights?

However, when it comes to privately owned venues, such as train stations, Sheinberg thinks that the most important thing is consistency. If citizens can't put up secular displays or hold demonstrations about the issues of the day, he argued, an exception shouldn't be made for religious or holiday displays.

"I think that at this point, the country would benefit from settled case law," he stated simply. "A lot of energy and resources are going into trying to figure out what can be done -- and what can't be."

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