Constitutional Issues

It’s Beginning Look Alot Like Arbitrariness

For more than 13 years in the City of Poughkeepsie, located in the unparalleled Mid-Hudson Valley of New York State, from December to mid-January, an event known as the Celebration of Lights has taken place in the City’s downtown. The Festival’s primary purpose is commercial—to attract shoppers to the downtown area—and its secondary is arguably aesthetic: the installation and operation of 1,000 feet of white lights along main thoroughfares; the hanging of approximately 100 to 150 wreaths on utility poles along portions of various City streets; the installation of garland and banners, as well as the adornment of two Christmas trees; and the marching of one grand parade. The decoratives also include a privately-owned menorah—that elegant nine-branched candelabrum symbolizing the Jewish holiday of Hanukkah—and, beginning in 2007, “a display of the Muslim faith in the form of a star and crescent.”

In late August, in what amounted to a forked analysis, the Appellate Division of the Supreme Court of the State of New York—New York’s court of appeals—concluded in Chabad of Mid-Hudson Valley v. City of Poughkeepsie, 2010 N.Y. Slip Op. 06514 (N.Y. App. Ct. August 31, 2010) that the context in which a menorah was displayed was not an unconstitutional endorsement of religion but that the nightly lighting of the menorah by municipal employees, even if the cost is reimbursed, violates the Establishment Clause of the First Amendment to the United States Constitution.

At the first fork, the Court concluded that the placement of the menorah on a public sidewalk in front of a private building—the “neutralizing[] secular background” that is the “five-story, commercial, and privately owned Barney Building”—does not offend constitutional principles insofar as “all public properties are not alike.” The Court distinguished circumstances in which the maligned religious symbol graced courthouse steps, state-owned plazas, or a City Hall Park. Pushing that “secular background” theme, the Court seemed convinced by a kind of secularization by sectarian company in reasoning that “in the immediate vicinity of the menorah, as well as throughout the downtown area, are garlands, wreaths, and white lights, which, like the Christmas trees, “‘typify the secular celebration of Christmas’” and, as such, “while the menorah does not lose its religious symbolism, its surroundings negate any appearance of government endorsement.”

At the second fork, where the City went wrong, the Court nonetheless held that the use of “municipal funds, labor, and equipment for the nightly menorah lighting, even if the plaintiffs repaid the City for such labor and equipment, as required under the stipulation, would foster the perception of an unconstitutional excessive governmental entanglement with religion.” Citing Walz v. Tax Comm’n of City of New York, 397 U.S. 664 (1970); Citizens Concerned for Separation of Church & State v. City & County of Denver, 481 F. Supp. 522 (D. Colo. 1979), appeal dismissed, 628 F.2d 1289 (10th Cir. 1980), cert. denied, 452 US 963 (1981); cf. American Civil Liberties Union v. City of Birmingham, 791 F.2d 1561 (6th Cir.), cert. denied, 479 U.S. 939 (1986); Ritell v. Village of Briarcliff Manor, 466 F Supp. 2d 514 (S.D.N.Y. 2006); County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 616 (1989).

Mike Thelen is an associate in Womble Carlyle’s Real Estate and Real Estate Litigation practice groups. He regularly represents a wide variety of clients, from local governments to businesses, in both state and federal venues throughout North Carolina.

Categories: Constitutional Issues

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