Busman’s Holiday

As a young litigator, I often was asked whether I liked my job.

The answer was not that simple. Working for a mid-sized firm handling large securities law cases, I devoted a great deal of time to discovery. I’d spend days, sometimes weeks or even longer, combing through file drawers overflowing with documents (remember these were pre-digital days), drafting lengthy interrogatory questions and answers, preparing extensive outlines of questions (together with stacks of exhibits) for depositions to be taken — by a partner, of course — and finally digesting the deposition transcripts until my eyes glazed over. Not particularly glamorous work.

Keeping all that in mind, my usual answer was that I liked my job, since its interesting parts outweighed the tedious ones. And I wasn’t referring to time. Even a few hours spent in the library researching a difficult legal question and drafting a memo discussing my results, crafting motion papers and every once in a while arguing a minor motion that partners sometimes let young associates handle, preparing a record on appeal and then a first draft of the appellate brief and watching a partner (again) argue the appeal based on your (and her extensively revised) brief, or even attending a court status conference or a meeting with a client outweighed the much greater number of hours spent on the mind-numbing toil that made up a large part of a litigation associate’s working hours.

At some point in my 46-year career, though, this changed. It didn’t happen all at once, but over the years the balance of what I liked and what I didn’t (much more than discovery) shifted greatly. Once, when I explained that to a friend, he exclaimed with surprise, “Really? I thought you loved the law.” “Oh,” I answered, “I do love the law. Dearly. It’s practicing law that I don’t like very much.”

Although I’m retired, that love hasn’t changed. And so, for example, over the past month or two I spent hours reading all the Supreme Court opinions in two cases and the entire transcript of oral argument in a third (after first listening to a 45-minute webinar about it), as well as several circuit court, district court, and lower state court opinions in other cases, and numerous news and op-ed articles and Facebook posts about legal issues — all without logging a single billable hour. Yes, I still love the law.

I’ve tried to share this love by devoting a number of columns to legal issues. Because of my own particular interests and those of the paper I write for and the one that publishes this column’s online version, I’ve most often written about religious-legal issues (see, e.g., “A Church-State Fairness Doctrine,” and “On Prohibiting the Free Exercise Thereof”).

And that’s what I plan to do with the remainder of this column.

* * * *

The Christmas and Chanukah seasons have ended, with their annual problems caused by legal issues and communal friction. Many arise from Christmas tree/Chanukah menorah questions.

(Please bear with me here. Two or three somewhat legal/nerdy paragraphs follow and then, I promise, I’ll be back to chatting with my readers.)

This year, a dispute that ended up in California federal court concerned a PTA-sponsored tree lighting event, sans a menorah, on school grounds. The court’s order upheld the decision to deny the request from the parents of a Jewish student to include the missing menorah. If you’re interested in an incisive discussion of this case, see the article by my teacher and friend Prof. Michael Avi Helfand in the Forward, “Is the Christmas Tree a Religious Symbol? What about a Menorah?” (If you’d like to read the actual court decision, you’ll find it linked in this column’s digital version.)

First Amendment law on this matter is complex, and, as Avi has pointed out, it gradually has been shifting from a focus on whether government conduct endorses religion to whether it coerces religion. That move from endorsement to coercion is not the direction in which I’d like to see Establishment Clause jurisprudence go, but I recognize that even if there were a vacancy on the Supreme Court, a seat for me is not in the offing.

Nonetheless, there are factors that I believe need to be given more weight. First, inclusivity should be of paramount importance; that is, there can be more flexibility in government allowing religious symbols if all religions are included; less flexibility or none, however, if religions are excluded, as was the case in California. Interestingly, although the judge in that case allowed the Christmas tree-only event to proceed, he noted that the “systemic endorsement of Christian beliefs and traditions, while disfavoring those of other religions, are very serious. Plaintiffs’ allegations regarding the feelings of exclusion experienced by the minor children are particularly troubling.”

And this is not only a 3,000-mile away problem; it’s alive in our very backyard, in Palisades Park. There, the public library has had a permanent Santa Claus/Christmas tree mural in the children’s area for years, while refusing to recognize Chanukah, because, the library claimed, Santa is a folk figure even for Jews. And last year, ignoring Jewish complaints, Palisades Park erected a Santa Claus with a Merry Xmas sign in front of its town hall. No menorah or mention of Chanukah though.

This year the town acquiesced to stronger complaints and finally erected a menorah — without, however, any mention of Chanukah. And so, exclusion continues. No matter how one views the meaning of a Christmas tree, Santa Claus, or menorot, telling only one story doesn’t comport with the spirit of the First Amendment.

In addition to the inclusion/exclusion issue, another important factor is location. Public displays of festive decorations and religious symbols during holiday seasons enhance our neighborhoods and bring a sense of joy and fellowship to our communities. Proof? Just walk down Fifth Avenue during December.

But location is critical. Most ideal are privately owned spaces open to the view and presence of the public; spaces like our own front yards and public areas of stores, malls, office buildings, entertainment locales, and religious institutions. The perfect merging of the Establishment and Free Exercise Clauses.

Public spaces owned by government and not individuals or private entities are different, and break down into two categories. The first includes spaces that are primarily for the use of and enjoyment by individuals — areas like parks, transportation venues, government health care facilities, libraries, and streets. Religious seasonal symbols should be allowed in these settings as long as all religions and groups are treated equally and equitably.

The remaining public spaces — locations like the halls of Congress, courthouses, municipal buildings and town halls, and government building both large and small, national as well as local — require more sensitivity. These spaces are where the state lives, and where we should, in Thomas Jefferson’s words, echoed by subsequent Supreme Court decisions, effectuate the purpose of the First Amendment’s religion clauses by “building a wall between church and State.” These are spaces where individuals go to speak to the state and where the state makes decisions about their lives; where no one present should have any reason to feel that that any religion influences the state’s actions and decisions; where no person should feel unwelcome. And in these spaces, miniscule relative to the vast number of other public spaces, the state should separate itself clearly from religion and its symbols.

So I cheer Chabad’s decades-long menorah project — but with one serious reservation. I love the dozens of menorot that it erects annually in our area in airports, train stations, bridges, tunnels, parks, highways, hospitals, malls, stores, businesses, and religious institutions. But I am uneasy, constitutionally and philosophically, with the few that it lights in front of, or in, city halls and other similar buildings. The light from the other menorot is bright enough to allow these few government spaces, where the wall separating church and state should be strong, to remain a bit darker.

I began this discussion with schools, so let me end with them. Seasonal religious symbols are part of life and therefore are properly part of education. In our yeshivot, we do so to influence students and shape their behavior; in public schools, we do so in order that students learn about and understand the world and their neighbors. So these symbols have a place in public school classrooms, plays, decorations, and recitals. But only as education, and not as indoctrination, and only if all students and their faiths are included.

No one ever said the First Amendment’s religion clauses — only 16 words long — were simple. But because we cherish each word and idea, we grapple with their complexity as we appreciate the expression of religious liberty that lies at their heart — and at the heart of our democracy.

About the Author
Joseph C. Kaplan, a regular columnist for the Jewish Standard, is the author of “A Passionate Writing Life: From ‘In my Opinion’ to ‘I’ve Been Thinking’” (available at Teaneck's Judaica House and its website). A retired lawyer and long-time resident of Teaneck with his wife Sharon, they’ve been blessed with four wonderful daughters and five delicious grandchildren.
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