WASHINGTON The Supreme Court yesterday refused to weigh in on a dispute between the city of Cincinnati and a Jewish organization over the display of a menorah in a downtown plaza.
The Court refused to hear the city's arguments that it should be allowed to stop all private groups from using Fountain Square during the holidays. The city argued that the space is needed for a skating rink, concession stand, Christmas trees, wreaths and lights.
Last month, U.S. District Judge Susan Dlott ruled that the city of Cincinnati could not bar Chabad of Southern Ohio from displaying an 18-foot menorah in Fountain Square.
The 6th U.S. Circuit Court of Appeals then issued an emergency stay of Dlott's ruling. Two days later, on Nov. 29, Justice John Paul Stevens lifted the 6th Circuit's stay.
Yesterday, the full Supreme Court refused to revisit Stevens' order vacating the stay.
After Stevens intervened, Chabad put up its menorah and greeting sign during the eight-day Hanukkah celebration, which began at sundown on Nov. 29.
In his order vacating the 6th Circuit's stay, Stevens noted the square's historic character as a public forum.
Mayor Charlie Luken, who has defended the city's ban on private displays, voiced his displeasure when Stevens issued his order. "I do tire of federal judges telling us what to do when they don't have to live with the consequences," Luken said.
The nonprofit Chabad challenged a municipal ordinance that says only the city can use Fountain Square during the last two weeks of November through the first week of January. The ordinance grew out of the city's efforts to prevent the Ku Klux Klan from erecting a cross during the Christmas season. Over the city's objections, the Klan won rulings in federal courts entitling them to erect crosses on Fountain Square in the 1990s.
City lawyers have argued that allowing private organizations to erect unattended displays would overcrowd the square and make it difficult for the city to keep order. But Chabad, which has for years erected a large menorah on Fountain Square during Hanukkah, argue the ordinance violates the First Amendment guarantee of free speech.
"It's been a roller coaster of emotions as this was played out in three courts this week," Marc Mezibov, an attorney for the Jewish group, said on Nov. 29.
Dlott said in her Nov. 27 ruling that the ordinance attempted to transform the square into a zone where only the city's message was welcome. She ordered the city to provide permits allowing Chabad to erect a menorah during the holidays.