Court Opposes Menorah in Beverly Hills

A federal appeals court in San Francisco ruled unanimously Friday that the city of Beverly Hills violated the Constitution by allowing an Orthodox Jewish organization to place a menorah in a city park at Hanukkah every year while prohibiting other groups from erecting symbolic displays in the same park.

The U.S. 9th Circuit Court of Appeals held that Beverly Hills’ actions constituted an establishment of religion that is forbidden by the 1st Amendment.

The appeals court found that Beverly Hills clearly had shown favoritism toward Chabad of California, a Hasidic organization that favors public religious displays. The group secured permission to erect a 27-foot-tall menorah in a park fronting Santa Monica Boulevard in 1986.

At Hanukkah, Chabad has organized ceremonies centered around the menorah, including the ritual lighting of electric candles and the speaking and singing of traditional Jewish prayers. Beverly Hills City Council members, many of whom are Jewish, have participated in the ceremonies.

The court noted that Beverly Hills has a general policy of not permitting residents to erect large unattended objects on public property, but that it had made an exception for Chabad. And the judges stressed that in 1989, the Beverly Hills City Council had denied one group the right to erect a cross and would not allow another to mount a winter solstice display.

Beverly Hills acted in an ad hoc fashion and has maintained a “standardless” permitting system, “thereby lending itself to abuse,” wrote Judge Betty B. Fletcher in the 11-0 decision. “Appropriate standards must be developed if the city wishes to allow Chabad, or anyone else, to erect private unattended displays in its parks,” Fletcher added.

Ironically, the suit challenging the city’s action was filed by the American Jewish Congress and four Jewish residents of Beverly Hills. Additionally, the Anti-Defamation League of B’nai B’rith, a Jewish civil rights organization, filed a friend-of-the-court brief in support of the challenge. Those organizations have taken a stance against public religious displays for years and have battled Chabad in courts on the issue.

“I think this is a pretty easy case,” said UC Berkeley law professor Jesse Choper, an expert on religious liberty issues. “If there is anything that violates the 1st Amendment’s religion clause, it is government discrimination in favor of religion, and that’s what you have here.”

Choper said that in recent years the U.S. Supreme Court has moved in the direction of permitting religious symbols to be displayed in public places as long as equal access is granted.

For example, he noted that in 1989 the Supreme Court permitted an 18-foot-high menorah to be displayed next to a Christmas tree in front of the Pittsburgh City Hall. But in the same decision, the high court ruled that the Constitution did not permit Allegheny County, Pa., to display a nativity scene in its courthouse.

In the majority decision barring the nativity display, Justice Harry A. Blackmun wrote that the creche, unadorned by more secular symbols of the Christmas season, gave the impression that the county government was endorsing the display’s religious message.

Last year, the Supreme Court ruled that the Ku Klux Klan had a right to erect a cross in a civic square in Columbus, Ohio, after Chabad had been allowed to display a menorah in the same square. In his plurality opinion, Justice Antonin Scalia wrote that religious displays such as the klan’s cross should be permitted unless there is evidence that the governmental body had manipulated access to the forum to let some groups erect their displays but not others.

“That’s what the 9th Circuit found happened in Beverly Hills,” said Carol Sobel, an American Civil Liberties Union attorney, who argued the case for the American Jewish Congress. “This decision is a big deal, because it is the first decision in the country to say that a religious symbol was improperly permitted in a public park,” Sobel said.

“Hanukkah came early this year!” said Joan Patsy Ostroy, a West Los Angeles lawyer, who is chairwoman of the American Jewish Congress’ Los Angeles board.

Neither the Beverly Hills City Council president nor the city lawyer returned calls seeking comment.

Nathan Lewin, a Washington, D.C., attorney who represented Chabad, attempted to minimize the importance of the decision. “The only thing that the court has held is that the city of Beverly Hills has to issue standards. . . . There is nothing in that opinion that prevents, as a matter of constitutional law, the Chabad menorah from going up in the same place this year and all other years as long as the city promulgates standards and permits everybody who meets those standards to put up displays.”

But Ostroy and Los Angeles lawyer Douglas E. Mirell, a former American Jewish Congress official, said that formulating such standards might not be easy. Mirell said Beverly Hills has tried unsuccessfully to design “content neutral” regulations.

Ostroy said that if Beverly Hills did promulgate such regulations, it would soon be faced with requests that it might not want to grant. She said the city has applications pending from the Lawyers Second Amendment Society (a pro-gun group), the John Birch Society, the Alliance for Survival and the Los Angeles Coalition for Homelessness, which has asked for the right to set up a tent encampment.

In a 1992 case, the city of Grand Rapids, Mich., acknowledged in a court hearing that if it were going to permit erection of a menorah, it also would have to permit unpopular displays, possibly including a swastika.