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MARK A. KAPLAN v. CITY BURLINGTON AND ROBERT WHALEN (12/12/89)

decided: December 12, 1989.

MARK A. KAPLAN, ESQ., RABBI JAMES S. GLAZIER AND REVEREND ROBERT E. SENGHAS, PLAINTIFFS-APPELLANTS,
v.
CITY OF BURLINGTON AND ROBERT WHALEN, OPERATIONS MANAGER OF PARKS AND RECREATION DEPARTMENT, DEFENDANTS-APPELLEES



Appeal from judgment of the United States District Court for the District of Vermont, Franklin S. Billings, Jr., J., denying plaintiffs-appellants' request for declaratory and injunctive relief preventing defendants-appellees from issuing permit for display of menorah in City Hall Park in Burlington during Chanukah. Reversed and remanded. Judge Meskill dissents in a separate opinion.

Lumbard, Feinberg and Meskill, Circuit Judges.

Author: Feinberg

Feinberg, Circuit Judge:

We are called upon once again to consider the constitutionality of the unattended, solitary display on public property of an obviously religious symbol during the Christmas holiday season. This time, however, the symbol on display is not a creche, as it was when this court last wrestled with the issue,*fn1 but a menorah. Since our decision in that case, the Supreme Court has decided County of Allegheny v. ACLU, 492 U.S. 573, 109 S. Ct. 3086, 106 L. Ed. 2d 472 (1989). Although there are several separate opinions in Allegheny, with various concurrences and dissents, we believe that they indicate that the display of the menorah in this case is unconstitutional. Accordingly, for reasons developed more fully below, we reverse the judgment of the United States District Court for the District of Vermont that allowed the display, and remand for entry of judgment for plaintiffs.

I. Background

Proceedings in the District Court

Plaintiffs Mark A. Kaplan, Rabbi James S. Glazier and Reverend Robert E. Senghas commenced this action in June 1988 in the district court. Plaintiff Kaplan is an attorney, who resides and practices in Burlington, Vermont; Rabbi Glazier is the rabbi for the Temple Sinai Reform Jewish Congregation in Burlington; and Reverend Senghas was the minister of the First Unitarian Universalist Church of Burlington. Their complaint named the City of Burlington and Robert Whalen, operations manager of the City's Parks and Recreation Department, as defendants. Plaintiffs sought a declaratory judgment that the City's grant of a permit for the display of a menorah in City Hall Park would violate the Establishment Clause of the First Amendment, reproduced in the margin.*fn2 The permit was to be issued to the Vermont Organization of Jewish Education -- Lubavitch (Lubavitch), a Vermont group of orthodox Jews. Plaintiffs also sought preliminary and permanent injunctions against display of the menorah in City Hall Park.

After discovery, the parties entered into a stipulation of facts, pertinent portions of which will be referred to below. Judge Franklin S. Billings, Jr., held an expedited hearing on consent of the parties, after which he issued an oral ruling in defendants' favor. Shortly thereafter, the judge filed a thorough written opinion, dated December 8, 1988, reported at 700 F. Supp. 1315 . The judge held that the display of the menorah did not violate the Establishment Clause. This appeal followed.

The Facts of the Dispute

The facts set forth below are taken from the stipulation of the parties, the opinion of the district court and the record and exhibits supplied to us by the parties.

City Hall Park, a plot of land containing 2 1/2 acres, is in a prominent location in Burlington. The City has 18 other parks, but as the name suggests, City Hall Park is in front of City Hall, the seat of Burlington city government. City Hall Park is a traditional public forum, and is frequently used by members of the public for a wide variety of social, artistic, commercial and political events, including fund raising.

There has been a limited history of religious activities in the Park. In the period 1982-1988, the City issued some 13 permits, in addition to those involved in this case, that suggested religious activity in the Park, e.g., permits to the WGLY Radio Station for Gospel message and music; to Roger Foster on behalf of various church organizations for a Jesus rally, with music and testimonies; and to the Maranatha Church for food and clothing distribution to the poor. However, none of these activities involved the use of the Park for as lengthy a period as that at issue here. Also, none of the permits involved display in the Park of an unattended, solitary religious symbol. Indeed, the Park has apparently never been used for this purpose.

The Vermont Lubavitch group is associated with a larger group of Orthodox Jews known as the Chabad Lubavitch, under the spiritual guidance of a respected rabbi who lives in Brooklyn, New York. The Lubavitch movement is a Hasidic sect that seeks to reawaken interest among Jews in traditional Judaism. The local Lubavitch rabbi in Burlington, Yitzchok Raskin, has acknowledged that the Lubavitch movement advocates the display of menorahs all over the country, and has personally participated in efforts to place menorahs on public property in Miami Beach, Florida, and New York City, New York.

A menorah is a religious symbol of the Jewish faith, and is recognized as such by the general public. The menorah is associated with Chanukah, a religious holiday observed by Jews during an eight-day period which ordinarily falls between the latter part of November and the first part of January of each year. A menorah is a nine-pronged candelabra representing the eight days of Chanukah, with one space for a candle used to light the other eight. "According to Jewish tradition, on the 25th of Kislev in 164 B.C.E. (before the common era), the Maccabees rededicated the Temple of Jerusalem after recapturing it." Allegheny, 109 S. Ct. at 3095. Chanukah commemorates this event. Each Chanukah the menorah is lit to celebrate the miracle of a continuously burning light; as the Court explained in Allegheny, "[when] the Maccabees rededicated the Temple, they had only enough oil to last for one day. But . . . the oil miraculously lasted for eight days (the length of time it took to obtain additional oil)." 109 S. Ct. at 3095. In a letter requesting permission to erect the menorah, the Vermont Lubavitch group described Chanukah as "the festival of lights," and noted that, "we are celebrating the miracle of a small amount of oil lasting eight days." The plain objective of the display of the menorah in City Hall Park is religious.

In December 1986, the Lubavitch group requested and received permission to erect a menorah in the Park during the celebration of Chanukah. Permission was granted, and the menorah was erected on December 26, 1986 and maintained through January 6, 1987. The menorah, 16 feet high and 12 feet wide, bore a sign, facing only one of the streets forming the Park's boundary. The sign stated "Happy Chanukah" and that the menorah was "Sponsored by: Lubavitch of Vermont." On December 28, 1986, the menorah was lit in City Hall Park in a ceremony attended by over 100 people, held in accordance with the religious customs of Chanukah.

In December 1987, the Vermont Lubavitch group again sought and received a permit, which allowed it to use the "South Lawn Area" of City Hall Park for a "Religious Exhibit -- Menorah." The menorah was again erected on December 15 and maintained through December 23, 1987. On December 20, it was lit as in the preceding year. In ...


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