c. 1996 Religion News Service

SAN FRANCISCO _ A federal appeals court has ruled that the City of Beverly Hills violated the Constitution by allowing a Hasidic Jewish group to erect a Hanukkah display in a public park while also preventing two other groups from setting up their religious displays.

The ruling could force local governments to enact formal guidelines for religious displays, rather than dealing with them on an ad hoc basis, as is now generally the case.

In Beverly Hills, the display at issue was a menorah _ a candelabra associated with the Jewish holiday of Hanukkah. Ever since 1986, a menorah 27-feet tall, 24-feet wide and weighing nearly three tons has been erected in a park across from Beverly Hills City Hall during the Hanukkah holiday _ which generally coincides with the Christmas season.

The menorah has been erected by Chabad of California, a local affiliate of the New York-based Chabad-Lubavitch Hasidism sect that also erects similar displays across the nation. Menorahs even larger than the one in Beverly Hills are erected each year in New York and Washington, where one is displayed just south of the White House.

Beverly Hills allowed Chabad to erect its menorah even though the city has long maintained a”general policy”of not permitting large displays on public property.

In 1989, the city twice denied a”special events permit”to applicants _ one for a”winter solstice”display, the other for a cross _ that would have also stood during the holiday season. In denying the applications, the city said they represented mere protests against the menorah and neither provided sufficient detail about their proposed displays.

But the Ninth Circuit, sitting in San Francisco, ruled Friday (July 19) that such selective permitting _ coupled with the vague rules the city used to consider applications _ made the city an unconstitutional endorser of one religion over another.”At the very least, the record makes clear that the city’s current ad hoc permitting system is standardless, thereby lending itself to abuse, and that appropriate standards must be developed if the city wishes to allow Chabad, or anyone else, to erect private unattended displays in its parks,”Judge Betty Fletcher wrote for the 11-member court, which was unanimous in its ruling.

There was no immediate word as to whether the city would appeal the ruling to the U.S Supreme Court.

However, Rabbi Chaim Cunin, a spokesman in Los Angeles for Chabad of California, said Tuesday (July 23) that the matter would not be dropped.”What we have here is a desperate technical maneuver to stop the menorah. Our lawyers will deal with it in the appropriate legal manner and will appeal if necessary,”he said.”Other courts have backed us before.” But Marc Stern, a lawyer with the American Jewish Congress in New York, which challenged the menorah’s placement, said an appeal holds little promise of succeeding.”The unanimous Ninth Circuit held that there was religious favoritism at work”in the city’s decisions, Stern said.”And the Supreme Court has been unanimous in rejecting that. It’s hard to see what issue of law there is for the Supreme Court to review.” Beverly Hills is now left with the hard choice of whether to formalize its application procedures _ and risk having to allow unpopular groups, such as the Nazis, to display religious symbols _ or to ban religious displays on public property altogether.

In recent years local Nazis forced city officials in both Cincinnati and Columbus, Ohio, to permit them to erect crosses after those cities had earlier permitted Chabad to display its menorahs, Stern said.

But in Detroit, city officials turned back a Nazi display commemorating Adolph Hitler’s birthday by prevailing on a Christian group to withdraw its application for a nativity scene. The city then closed its public spaces off to all religious displays, said Stern.

Stern said the significance of the Ninth Circuit’s ruling is that it will force local governments to adopt formal procedures for considering applications for religious displays on public property.”It will end what is very common practice _ especially in small towns _ for doing things informally,”Stern said.

In 1989, the Supreme Court ruled that the display of a menorah at Pittsburgh City Hall was legal as long as no favoritism was shown and a Christmas tree was also displayed.

Douglas E. Mirell, another American Jewish Congress attorney, said his group opposed the actions of the Hasidic Jewish group because”barring religious favoritism is of such transcending importance to the well-being of American Jews as to override other considerations.”

MJP END AQUINO