Volume 53 Number 35
Produced: Mon Dec 25 8:25:38 EST 2006
Subjects Discussed In This Issue:
Separation of Church and State - Trees and Menorahs (4)
[R E Sternglantz, Carl Singer, Leah S. Gordon, Orrin Tilevitz]
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From: R E Sternglantz <resternglantz@...>
Date: Fri, 22 Dec 2006 07:14:45 -0500
Subject: Separation of Church and State - Trees and Menorahs
Brief comments on two recent posts. But let me start by saying that I am
not commenting here on whether the trees and/or the chanukiah placement
(either separately or together) would violate the First Amendment. There
are some very long and faintly silly Supreme Court opinions parsing this
issue -- that is, what celebrates a "culture" and what is actually a
symbol of "religion" (including a rather mind-bending analysis of what
happens when a creche and a clown are in the same display).
Leah Perl writes:
> This statement presupposes a specific interpretation of "separation of
> Church and state" that not all share. You are saying the this concept
> prohibits the public display of religious symbols. What the concept
> means, as I understand it, is different: that there is no
> state-sponsored religious. In many countries in the world there is a
> state-sponsored religion (or was at one time). E.g. Catholic
> countries, Russian-Orthodoxy, etc., In these countries, the head of
> church and the head of state were one and the same. This is what led
> to religious coercion. Prohibiting public displays of religion is
> more along the lines of Communist theology.
The original poster of the airport story was inexact in his language,
but separation of church and state *under federal constitutional law*
includes restrictions on certain types of religious displays on public
-- ie, state owned -- property. What I do on my private property that is
visible by the public is my own business.
I really have no idea what the status of an airport is, but I believe
that they are generally under the control of a series of government
agencies. If that is the case, religious displays there would be subject
to the same rules that govern displays in parks and government
buildings.
David Charlap writes:
> Leah Sarah Reingold Gordon wrote:
> > 1. Trees are placed in airport. This is bad because it is yet another
> > public display of one particular religion (or set of religions) in a
> > space shared by all of us. ...
> >
> > 2. Rabbi requests Chanukiah placement. This is bad because it is not
> > appropriate to put religious symbols up in a public place in the US. We
> > have separation of Church/State. ...
>
> This is a fiction that many people like to repeat, giving the impression
> that it has a basis in law.
>
> The Constitution does not demand that religious symbols be absent from
> all public places. It doesn't even demand that religion be absent from
> government.
This may be true, but the Constitution is not the last word in American
law -- it is the interpretation of the Constitution by supreme court
justices that has the last word, until future justices reread the
document. What you or I think the constitution says/means really has no
bearing on anything.
> The concept of "separation of church and state" is just that - a
> concept.
Absolutely. However, this concept is realized through a series of rules
generated by Supreme Court opinions. Those rules are not "concepts."
> And demanding a religion-free public square is just feeding the fires
> of this intolerance.
The "public square" is state property. If a single religion has its
display in the public square and no other religion is permitted to make
its display there, that's state approval of a religion. Sometimes, the
religion-free public square is the easiest way to remain within the
realm of the law.
Ruth Sternglantz
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From: <casinger@...> (Carl Singer)
Date: Fri, 22 Dec 2006 16:04:55 +0000 (GMT)
Subject: Separation of Church and State - Trees and Menorahs
I heard US Supreme Court Justice Alieto speak to this -- essentially the
establishment of any SPECIFIC religion is what was the "founding
fathers" wished to avoid.
The time to deal with these issues is in June or July when things are
being planned. Confrontational or reactive protests only result in
reaction and confrontation.
I remember walking into a Marriott Hotel during Chanukah where there was
a Chanukah Menorah at the check-in desk (And yes a large Xmas Tree) --
seeing my Yarmulke they asked me to verify that they had the correct
number of candles, etc. Perhaps that one of the reasons that they're my
hotel of choice.
Carl
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From: Leah S. Gordon <leah@...>
Date: Fri, 22 Dec 2006 05:26:58 -0800
Subject: Separation of Church and State - Trees and Menorahs
>> Rabbi requests Chanukiah placement. This is bad because it is
>> not appropriate to put religious symbols up in a public place
>> in the US. We have separation of Church/State. One could
>> argue that the airport is a private concession and not "State"
>> - but airports are certainly public to the extent that people
>> need to use them for transport, plus the government does have
>> jurisdiction over many facets of air travel. One could argue
>> that Christmas Trees aren't religious symbols, but no one could
>> argue that a Chanukiah is not. (Perhaps a dreidel or latke
>> would be the equivalent to the Tree.)
> This statement presupposes a specific interpretation of
> "separation of Church and state" that not all share. You are
> saying the this concept prohibits the public display of
> religious symbols. What the concept means, as I understand it,
Not "all" may share it, but certainly there is case law supporting that
view. For instance, creche displays have been determined by US courts
to be inappropriate because of being religious, whereas Christmas trees
have been deemed acceptable (this set of things I think on municipal
government lawns - which, of course, is a government entity; more on
that later). Hence my comparison between chanukiah/dreidel as a
parallel.
Luckily, I don't have to convince the readers of M.J that public
displays of the majority religion are problematic; there are large
bodies of legal thought and work to support me. (I do think it is odd
that minority religious people on M.J would be so quick to chime in on
the pro-Christmas side of things. I would like to hear from more who
live in less heavily Jewish areas and/or whose children attend public
schools etc.)
> From: Ed Greenberg <edg@...> Date: Thu, 21 Dec 2006
> 18:16:10 -0800 Subject: Trees and Chanukiot in Airports
> On Erev Chanukah (11 AM last Friday) I took a friend to the Las
> Vegas airport. My friend Bill is blind, and rather than
> surrender him to the mercies of the airport employees, I
> offered to guide him to the gate myself. As a result, I had the
> privilege of going through security and visiting the secure
> area.
> In the secure area, out at the far end of the tram by D gates,
> I found a large Chanukiah, with nine electric lights lit.
> Christmas being so ubiquitous, I never noticed how heavily
> decorated the airport was, but there were some decorations.
> Perhaps in Las Vegas, they are more adept at getting along.
Yes, perhaps... Also, there is a strong Chabad presence there; could
you tell if it was associated with them? And after all, LV is a city
that loves bright lights. :)
>> From: David Charlap <shamino@...> Date: Thu, 21 Dec
> 2006 09:55:09 -0500 Subject: Re: Trees in SEA
>...
>> This is a fiction that many people like to repeat, giving the
>> impression that it has a basis in law.
Whatever your opinion, I believe it is impolite to phrase it as you have.
>> The Constitution does not demand that religious symbols be
>> absent from all public places. It doesn't even demand that
>> religion be absent from government.
Which, of course, I acknowledged.
>> Please note the wording. It says that there may be no law
>> establishing a state religion. Court opinions have extended
>> this to also prohibit laws that favor one religion above all
>> others. It does not say religion should be absent. It says
>> that if you permit one, you must permit them all.
As mentioned above, the Court certainly has found that overtly religious
symbols (10 Commandments, creches, crosses) are not appropriate in
government settings. By the way, "them all" is a kind of bizarre
formulation about religions - of which there are probably a countable
infinity. But I know that you didn't come up with that, so I don't hold
you responsible for the formulation.
>> And notice the second part - "or prohibiting the free exercise
>> thereof". It is just as unconstitutional to pass a law banning
>> Christmas (or Chanuka) displays.
On private property, yes.
>> 3. Airport refuses to discuss/negotiate the issue. ...
>> 4. Airport summarily removes Trees. ... 5. Airport employees
>> "protest" ... 6. Rabbi/lawyer threatens lawsuit. ...
>> You've got the sequence of events backwards. The rabbi's
>> lawyer mentioned the possibility of a suit after being given
>> the legal runaround for several days. I got the impression
>> that this was because of the rude treatment, not because of the
>> menorah, and definitely not because of the trees.
I certainly do not have "the sequence of events backwards" (and again,
please try to keep a civil tone on M.J). The lawyer/airport were having
discussions about the lawsuit possibility earlier, but the whole story
broke (and the lawsuit threat became public) precipitated by the Tree
removal. Since my point was about the chillul hashem of it all, I put
the lawsuit "item" there in my list.
>> The airport decided to remove the trees after the suit was
>> "threatened", even though nobody was demanding their removal.
This is a good point, because as you know, the media/public frenzy did
not clarify sufficiently. The rabbi got all kinds of hate-mail and
"Grinch" press coverage.
LSRG> By the way, I have no objection to people and businesses doing
LSRG> whatever decorations they like on their private property. ...
>> Except, apparently, when that private business gets enough
>> customers that you consider it public.
Actually, that is not at all what I said. I was very clear (though you
deleted it) that an airport could be considered a private concession,
but that then we need to address the TSA/FCC/etc. government connections
to the situation, which are certainly "public" federal government.
Furthermore, I do think it is a worthy discussion point that the airport
did not take the "we are a private company" tack or enter into
discussions along those lines. If they had, we would have seen more
customer-service-mentality, probably.
By the way, it isn't so simple who owns which part of the airport. As
you may know, the individual airlines rent out space and are responsible
for those spaces (which maintained trees in our current situation).
LSRG> And, there is a signficant movement right now to move *away*
LSRG> from the "Happy Holidays" because some Christians apparently
LSRG> think that it was an annoying concession to (who else?) the
LSRG> Jews, and that it's time to go back to "Merry Christmas"
LSRG> universally. I was irritated enough at the "Happy Holidays"
LSRG> when everyone knows it's just really Christmas, but at least
LSRG> that formulation was an allowance that there might be some
LSRG> non-majority people out there. The backlash that I hear now on
LSRG> the radio etc., "Why can't my kids make paper stockings in
LSRG> public school? This anti-Christmas has gone too far...." is a
LSRG> scary harbinger of majority intolerance IMO.
>> And demanding a religion-free public square is just feeding the
>> fires of this intolerance.
I assume you are kidding. No one could believe that standing up to
intolerance is "leading them on"....
At any rate, what would you (or anyone) suggest to reduce the
intolerance and/or chillul hashem all over this issue? Have you
constructive suggestions?
--Leah Sarah Reingold Gordon
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From: Orrin Tilevitz <tilevitzo@...>
Date: Fri, 22 Dec 2006 09:06:50 -0800 (PST)
Subject: Separation of Church and State - Trees and Menorahs
Leah Gordon wrote :
> 2. Rabbi requests Chanukiah placement. This is bad because it is not
> appropriate to put religious symbols up in a public place in the US. We
> have separation of Church/State. ...
To which David Charlap responded:
> This is a fiction that many people like to repeat, giving the impression
> that it has a basis in law.
> The Constitution does not demand that religious symbols be absent from
> all public places. It doesn't even demand that religion be absent from
> government. The first line of the First Amendment (the so-called
> "establishment clause) says:
> Congress shall make no law respecting an establishment of
> religion, or prohibiting the free exercise thereof
> Please note the wording. It says that there may be no law establishing a
> state religion. Court opinions have extended this to also prohibit laws
> that favor one religion above all others. It does not say religion
> should be absent. It says that if you permit one, you must permit them
> all.
I think it would really helpful where people voice opinions on what they
think the law is - whether that law is secular or halachic - they take the
trouble to first look it up and cite relevant sources. None of the
posters on this topic has done so, and it shows. There are several
centuries of jurisprudence interpreting the first amendment. While I
won't attempt, and probably aren't qualified, to provide a tutorial in
constitutional law, a brief examination of relevant case law shows that
both of you are wrong, and it is Leah who is closer to being right.
The most recent directly relevant U.S. Supreme Court pronouncement is
County of Allegheny v. American Civil Liberties Union Greater Pittsburgh
Chapter, 492 U.S. 573 (1989), in which the court held that display of a
crèche outside government buildings violated the establishment clause
because it was purely a religious symbol, but permitted a public display
of a menorah because it "is not exclusively religious. The menorah is
the primary visual symbol for a holiday that, like Christmas, has both
religious and secular dimensions." The court quoted an earlier case to
the effect that neither the state nor federal government "can pass laws
which aid one religion, aid all religions, or prefer one religion over
another." A subsequent case, Van Orden v. Perry, 545 U.S. 677 (2005),
permitted the display of the Ten Commandments on the state capitol
grounds, but only because their ubiquity in all sorts of public
contexts, including in a medallion in the floor of the National Archives
and the role it "plays in America's heritage", demonstrates that while
they are religious, they also have an "undeniable historical meaning.
In McCreary County, Ky. v. American Civil Liberties Union of Ky. 545
U.S. 844 (2005), the Court barred display of the Ten Commandments in a
couple of Kentucky courthouses because of the avowed religious purpose
behind the display. Also, Capitol Square Review and Advisory
Bd. v. Pinette, 515 U.S. 753(1995), permitted display of a cross outside
a courthouse because it was privately-placed and therefore permitted
private expression. Significantly, all of these opinions were plurality
opinions - no opinion secured a majority of the justices - and in
general the Court's establishment clause opinions are impossible to
reconcile with each other.
There are then a whole bunch of later lower court cases over the public
display of a menorah - I counted 28 - after County of Allegheny, some
permitting it and some forbidding it because the way it was done made it
into an exclusively religious symbol (I'm oversimplifying).
The bottom line is that (1) in the Supreme Court's view a menorah is OK
(and a Christmas tree apparently isn't an issue), but only because
neither is a purely religious symbol, and (2) if you do put up a menorah
in a public place, you are inviting a law suit. (Whether an airport or
shopping mall is a public place is an entirely different issue.) So
Leah's statement that it isn't "appropriate" to put up religious
symbols in public places is pretty close to on target.
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End of Volume 53 Issue 35
