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Menorahs on Public Lands
The Windows OS has a new feature that displays a small icon in the Desktop search bar. The icon rotates every few days based on the calendar, similar to Google's tradition of customizing their search page. I never paid attention to it until I noticed a Menorah displayed on my Desktop. Presumably subsequent icons would show presents or a Christmas Tree. Certainly, though, it will never display a Nativity or Christian Cross.
I learned recently that Allegheny v. ACLU ruled that a Nativity on public land, as a religious symbol, violates the Establishment Clause but a Menorah on public land does not. According to the logic of the ruling, the Menorah and Christmas Tree are secular symbols of the winter holidays and do not constitute the endorsement of a religion while the Nativity does so. The logic is on its face patently absurd as the Menorah is not a secular symbol in any sense. It is a sacred symbol honoring a miracle upon the successful Jewish revolt against the Hellenists. Reading various opinions from Jewish publications, it is clear that many Jews continue to interpret the public lighting of the Menorah from an adversarial perspective:
The Establishment of Religion Takes Many Forms
The concept of the Establishment of Religion is tenuous and arbitrary. What is religion except for a unique collection of symbols, rituals, and myths that have an, often consciously-designed, psychological effect on intended flocks? That psychological effect influences our behavior: it affects our loyalties and our behavior towards the ingroup/outgroup, our code of conduct in society, our mate selection and reproductive behaviors, our politics, our community rituals, and much more.
Myth, Religion, art, politics, and culture all belong under the same umbrella. Religion is everywhere and most people today do not consume their religious messaging through a church but through mass media. Many here have interpreted the BLM movement and protests as a Religious movement, often with the intent to dismiss it or ridicule it. This power of mass media was envisioned by Richard Wagner:
Wagner's conception of proto mass-media as Gesamtkunstwerk was preempted by Plato, who two thousand years earlier envisioned the psychological power of the cinematic projection of light. Today, our consumption of Myth: those projections which intelligently orient our view of the world in understanding right and wrong, heroes and villain, are increasingly delivered through mass media rather than traditional religious institutions.
Earlier this week at the lighting of the Menorah inside the White House, not to be confused with the giant Menorah on the White House Lawn, President Biden remarked "Together, we must stand up against the disturbing rise in antisemitism" while touting the December 12th formation of the Inter-Agency Group to Counter Antisemitism, which will be "led by Domestic Policy Council staff and National Security Council staff to increase and better coordinate U.S. Government efforts to counter antisemitism":
At the ceremony, also emphasized was "securing the largest-ever increase in federal funding for the physical security of nonprofits, including synagogues and Jewish Community Centers".
Likewise, in the recently passed 2023 budget, in addition to at least $4 billion for Israel, over $65 million in federal funds was allocated to the US Holocaust Memorial Museum which, combined with the abundant support from private funds, amounted to a whopping $245 million in support for that museum in 2022. That makes it apparently, and by far, the most well-funded museum in the Nation's capital with well over 3x the funding of the National WWII Museum.
In contrast, the National Museum of American History had a 2018 budget of $40 million despite the fact it received 3.8M visitors in 2016, in comparison to the Holocaust Museum's 1.6 million for that year.
Which of the above should be considered the establishment of religion? All of it.
Christmas is Never Secular
In the same vein, Christmas is fundamentally a Religious festival even in its most non-Christian expression. It's the time of year where the masses practice a form of religious observance that is more comparable to a pagan, pre-Christian form of worship.
We ritualistically build our household lararium next to the hearth. We set out milk and cookies as an offering to a benevolent god who lives in a mystical Hyperborean realm, judges our behavior, and leaves us gifts. We honor his image in our films, songs, and Myth, especially to the delight of women and children. We carry on quirky household traditions which are transmitted ancestrally. Our celebration of Christmas and observance of Santa Claus would be more similar to the way the Romans, for example, worshipped their ancestral or household gods.
In this sense a "secular Christmas symbol" is an oxymoron. There is no such thing, which is acknowledged by the Jewish perspective which remarked on the foreignness and inescapability of the gentile "Holiday Spirit". The reality is that both the Menorah and Christmas Tree are religious symbols, and the government is constructively establishing religion with its display of both.
The "War on Christmas"
The Christians, in a way, get the short end of the stick for not being allowed to display their sacred symbols on public land. But who do they have to blame for that? They have allowed, without much protest, the designation of their own religion as second-class to the financial and legal privileges granted to Judaism. Christians tilt at windmills while sacred symbols of Jewish Victory tower over them during the Christmas holiday at the White House and Central Park, while their own sacred symbols are outlawed on the same land.
To reverse course, Christians would need to adopt the adversarial perspective that motivates Jews to light the Menorahs in these spaces. But given Christian doctrine it is not clear that the religion is capable of asserting itself in that way.
No, only two justices voted that the nativity scene violated the Establishment Clause while the menorah did not. Three judges voted that both violated the Establishment Clause and four voted that neither did.
The argument was not so much that a menorah per se is a secular symbol, but rather only that that particular menorah was, in large part because it was part of a larger display which included a Christmas tree and a celebration of liberty, all of whuch they deemed secular.
The Court actually remanded the case to determine whether the menorah violated the Establishment Clause for reasons not addressed in the appeal.
The Court okayed the display of a creche in 1984 in Lynch v. Donnelly, 465 U.S. 668. The difference in Allegheny, in the view of the five justices who voted that the creche was NG, was that "Here, unlike in Lynch, nothing in the context of the display detracts from the creche's religious message. The Lynch display composed a series of figures and objects, each group of which had its own focal point. Santa's house and his reindeer were objects of attention separate from the creche, and had their specific visual story to tell. Similarly, whatever a "talking" wishing well may be, it obviously was a center of attention separate from the creche. Here, in contrast, the creche stands alone: it is the single element of the display on the Grand Staircase." Note that this analysis is the same as that applied to the menorah.
The creche also included the phrase, "Glory to God in the Highest!"
And here is how Justice Gorsuch summarized the case law, just last May: "May a State or local government display a Christmas nativity scene? Some courts said yes, others no. How about a menorah? Again, the answers ran both ways."
So, your example doesn’t work.
Why are you saying "No" when you are just restating the verdict as I've described?
Obviously that is how judicial precedent works. But that particular menorah was not a secular symbol, that is an absurd claim. It was a sacred Jewish symbol, including that particular menorah.
Where exactly are the elements distracting the menorah outside the White House or the world's largest menorah in Central Park? Menorah lighting is clearly privileged well beyond the display of the Nativity scene, both in case law and in just using your eyes to see which of the two towers over the White House and Central Park. Gorsuch may be hinting that this will be revisited, which would be a good win for Christians and interesting Culture War moment. But the status quo obviously privileges the menorah above the Nativity.
I know I'm wasting my time, but:
Please read more carefully.
What I said has nothing to do with "how judicial precedent works"
A creche is far more of a sacred religious symbol than is a menorah, given how what a trivial part of Judaism Hannukah is, and how central Xmas is to Christianity. Yet, as Justice Gorsuch notes, sometimes creches are OK, and sometimes not. It depends on the particular creche, same as re menorahs.
Both appear to be privately funded. When government has a policy of opening public spaces to privately funded displays, it cannot exclude religious displays
Part of your confusion is that you seem to be under the misapprehension that simply displaying a religious symbol is an Establishment Clause violation, but the Courts has never so held. Rather, under the Lemon test, used in the cases you complain about, the display is OK if 1) it has a secular purpose; 2) it has a principal or primary effect that does not advance or inhibit religion; and 3) it does not foster an excessive government entanglement with religion. Re #1, that doesn't mean that the law's purpose must be unrelated to religion. Corporation of Presiding Bishop v. Amos, 483 U.S. 327 (1987). Most importantly, it is the purpose of the particular decision to exhibit the creche, not the nature of creches in general, which is the ultimate question.
Note that the Lemon test has been criticized for years, and most commentators (and Justice Kagan) considers it to have been effectively overruled this year in Kennedy v. Bremerton School District. But that widely misunderstood case is a topic for another day.
This is just a totally absurd statement. They are both sacred religious symbols. A menorah is not a secular symbol. Saying "one is more sacred than the other" is just trying to rationalize privileging one religious symbol over the other. Today I saw this Fox News article by Dennis Prager: Hanukkah made western civilization possible:
I also stated, to the annoyance of some here, that the menorah is a symbol of Jewish victory. And Prager affirms that interpretation verbatim. It is obviously a sacred religious symbol. The Talmud says:
So the Talmud mandates the display of the menorah to "publicize the miracle." That is a sacred religious symbol.
The menorah lighting at the White House and Central Park does not have a secular purpose. It has a deeply religious and symbolically important purpose. Jews themselves understand this. I know you are going to say it has a secular purpose, because you want to privilege Jewish sacred symbols over Christian symbols. But it doesn't make that position any more rational than it is.
As is always the case when people criticize legal decisions, I would suggest that when smart people with access to all the facts who have thought at great length about the issues involved, and who have had their arguments and conclusions scrutinized by other smart people with access to all the facts who have thought at great length about the issues involved, reach a conclusion, you might be a tad less sure of yourself when you think they are obviously wrong.
I would also suggest that the fact that you use Prager's claim re the historical significance of the battle that Hannukah celebrates as evidence of the religious significance of the holiday, you aren't thinking very rigorous about the claim you are making. Ditto if you think that my observation that "a creche is far more of a sacred religious symbol than is a menorah" is a claim that a menorah is not a sacred religious symbol at all. Obviously, both a creche and a menorah have [edit: I meant "can have" -- see my initial post re the Court talking about the particular menorah in question, not menorahs in general] both secular and religious meaning, as courts have repeatedly recognized.
Finally, the claim that menorahs in public places have no secular purpose is inane; they have the obvious purpose of reinforcing the idea that people of all faiths are members of the polity, which is clear to anyone who is familiar with the history of such displays, religious and otherwise.
Anyhow, as I said, I know I'm wasting my time.
The legal decision should be criticized for regarding a sacred Jewish symbol as secular when it is not secular. Jews themselves, the ones who sponsor the menorahs, do not regard them as secular. The decision relied on that logic which is clearly wrong.
What matters, at the end of the day, is that there are giant menorahs in front of the White House and many other public spaces where elected officials pay respect and promise support to Jews, and in those spaces there is no similar regard for Christianity. It's the largest menorah in the world at Central Park, not the largest Nativity scene in the world at Central Park. Allegheny helps explain the development status quo, but I am talking about the meaning of the status quo rather than simply criticizing the legal decision. So your hairsplitting really does not change the fact of the matter.
All religion has historical significance. The birth of Jesus, whether you regard it as history or myth, is itself a historically important story.
Prager regards the menorah as a symbol of Jewish victory, like many of the Jews I read who weighed in on their interpretation of why it's important to light the menorah in public spaces. "It's a symbol of Jewish victory, and it's historically important" does not make it secular any more than saying "The Cross is a symbol of Christianity, and it's a historically important symbol" makes it secular.
If the menorah were replaced with a Cross (relates to historically important developments, so it's secular!), and Joe Biden attended ceremonies for its dedication, and promised support to the Christian people and federal handouts to Churches and Christian community centers, and created a task force in the National Security apparatus to "counter anti-Christianity", would you regard that as the establishment of religion?
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