Commissioners ponder holiday displays on county land

By Michael Howell

On Monday, December 4, the Ravalli County Commissioners held a meeting to discuss holiday displays and address a request from Rabbi Berry Nash from Chabad Lubavitch of Missoula, to place a menorah on display on county property, either in the county office or on the front lawn during Hanukkah.

Commission Chair Greg Chilcott noted that the county did not have a policy for placing holiday displays on county property. He said developing a policy would not be quick and suggested that the board simply consider the possibility of doing something this season or not. He said it was a “confusing area of the law” to him.

A couple of the commissioners questioned the motivation for the request, since Rabbi Nash is not from Ravalli County. Commissioner Jeff Burrows asked whether the request was related to the board’s recent consideration of purchasing lights for a Christmas tree. There was also concern that the request was being made with a veiled threat to sue if the request was denied.

Nash said that the idea came up in conversations with Ravalli County resident Elliott Oppenheim. He said although the Chabad was “centered” in Missoula and Bozeman, it served all of Montana. He said his request was not made in response to anything that the County Commissioners had done, but was simply a part of his ongoing efforts to serve the wider community.

There was some discussion about whether or not a Christmas tree was a religious symbol or not and whether the menorah could be considered a secular object of historic and traditional significance.

Deputy County Attorney Howard Recht addressed the legal issues involved in placing a “potentially” religious display in a public area. He said the history of Supreme Court rulings on the issue makes it difficult to discern. He said one year the Supreme Court approved of a display of the Ten Commandments but the very next year the Court disapproved the placement of the Ten Commandments in another case.

“Trying to discern why in one case it is allowed in one circumstance and doesn’t matter in another circumstance sometimes turns on distinctions that are so fine that I’m not sure that anybody but the Supreme Court itself is capable of ascertaining,” said Recht.

“But,” he continued, “in general, some guidelines can be applied.” For instance, in the case of the Ten Commandments, they could be considered the historic basis of modern law and represent the oldest codification of law. In that case it could be viewed as a secular display in a historical and traditional context. But since it encourages belief in God, it could also be considered a religious symbol.

“Those displays that emphasize the secular and historical significance are more likely to be allowed,” he said. “The more religious the emphasis, the more likely it will not be allowed,” said Recht. He said, in his opinion, the menorah could be seen as both secular and religious. It is certainly a religious symbol but it may also represent the historic victory of the Macabees and the resulting political independence that was achieved.

Other factors come into play as well, according to Recht. If the display is privately sponsored and not endorsed by the local government, then it is more likely to be found acceptable by the court. He said it also helps if the display is set in context with other items. Recht said that in his opinion it would be possible to display a menorah if it fell on the side of being non-exclusive and not sponsored by the county.

After some discussion, it was suggested that Nash might rent the use of the Fairgrounds and sponsor a menorah-lighting event for educational purposes since other religious groups are also allowed to rent the facility for their own purposes and it does not make it a county-sponsored event.

Nash agreed that this could be a good first step and indicated he would follow up by applying to the Fairgrounds to host a display event.

According to a fairgrounds office staffer, Nash’s request was subsequently approved and a menorah lighting event was scheduled for Tuesday, December 12 at 5:30 p.m. at the fairgrounds main pedestrian entrance.