The Chanukah Menorah at the Supreme Court: Remembering County of Allegheny v. ACLU
It’s Chanukah time! Jews all over the world will begin celebrating the 8 day festival of lights this week. We will light our Menorahs, spin the dreidle, and give gifts of “Chanukah gelt” to our children. We’ll also enjoy delicious foods such as “sufganiyot” (jelly donuts) and “latkes.”
In year’s past, hundreds of thousands of people would ordinarily gather for public Menorah lightings. Unfortunately, that’s not an option this year because of Covid. We can, however shed light and reminisce about the time the United States Supreme Court discussed the Chanukah Menorah and issued its groundbreaking 1989 ruling in County of Allegheny v. ACLU.
County of Allegheny involved two First Amendment challenges brought by the American Civil Liberties Union, or ACLU. The Allegheny County Courthouse had a grand staircase in the center of the building. A local religious organization maintained a Christmas display of a creche, surrounded by Poinsettia plants in middle of the staircase. In the first challenge, the ACLU argued that the creche was a religious symbol, and therefore it was improper for the Courthouse to maintain this religious symbol on government property.
The second challenge involved the Chanukah Menorah. On public property in front of Pittsburgh City Hall, the Jewish organization Chabad put up an 18 foot Menorah next to a 45 foot Christmas tree. In front of both symbols, a banner stated that the City of Pittsburgh “salutes liberty.” The ACLU argued that placing both the Menorah and the Christmas tree on public property in front of the iconic City Hall building was the sort of improper Government endorsement of religion that the First Amendment prohibits.
The case made its way up to the Supreme Court. The trial court ruled against the ACLU; the 3rd Circuit Court of Appeals reversed and ruled in favor of the ACLU. The Supreme Court took the case to explain the unique contours of First Amendment law.
The case implicated what is known as the “Establishment Clause.” The First Amendment states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...” The question presented in County of Allegheny was whether erecting religious symbols such as a Menorah or Christmas tree or creche on public property violated this prohibition.
The Court explained that to violate the Establishment Clause, the Government actions at issue must improperly “endorse” religion in a way where one religion is favored or preferred. Courts will follow a three-pronged checklist to determine the answer to this question:
Does the government action have a secular purpose?
The government action must neither advance or inhibit religion in its principal or primary effect; and
The action must not foster excessive government entanglement with religious activity.
This checklist is known as the “Lemon Test”—named for an earlier First Amendment religious liberty case decided by the Supreme Court in the 1970s.
Following the Lemon Test, the Supreme Court here dissected both the creche display in the courthouse—and the Menorah and Christmas tree display in front of City Hall, and came to two very different conclusions. The Court ruled that the creche display violated the Establishment Clause, while the Menorah and tree display did not.
The Court explained that the creche display did not really have a secular purpose. The display was in the grand staircase, calling attention for all who visited the courthouse to see. “By permitting the display of the creche in this particular setting, the County sends an unmistakeable message that it supports and promotes Christian praise that is the creche’s religious message.” It was as if the government was lending its support to the communication of the religious organization’s religious message in the County Courthouse.
As for the Menorah and tree display—the Court ruled that a Christmas tree is not a religious message at all. One of the Justice’s even mentioned that the Chanukah Menorah was a symbol of the Maccabee’s victory over the Greeks. This could be construed as a symbol of liberty over tyranny, and not exclusively communicate a religious message. Also, the City placed a banner in front of the display saluting liberty. So the Court reasoned that it was not sufficiently likely that residents would perceive the combined display of both symbols as an endorsement or disapproval of their religious choices. Therefore, the Chanukah Menorah display on public property was ruled to not violate the Establishment Clause of the First Amendment.
County of Allegheny is a lengthy opinion. It includes a long dissent, and several concurrences—which is where the justices agree with the conclusion but provide a different analysis to arrive at that conclusion. Justice O’Connor’s concurrence succinctly states “I conclude that the City did not endorse Judaism or religion in general, but rather conveyed a message of pluralism and freedom of belief during the holiday season.”
To this day, the County of Allegheny case remains heavily-cited precedent in First Amendment Establishment Clause litigation throughout the United States. One commentator noted that the case guaranteed “freedom of religion—not freedom from religion.” Whenever you drive by a Chanukah Menorah on public property and see the candles burning brightly, you can recall how the United States Supreme Court made this a reality for all Americans to enjoy in County of Allegheny v. ACLU over 30 years ago.
Happy Chanukah to all, and may everyone enjoy their holiday season! For questions about your Los Angeles case, the Rabbi Lawyer is ready to assist, 24/6!
