Nathan Lewin, a lawyer who has successfully represented Chabad in menorah cases, said government can accommodate religious displays but cannot appear to endorse them, an impression that might be created by a nativity scene stationed inside a government building with no other religious symbols nearby.
Chabad wants to put a 12 ft x 14 ft sukkah in a Tibeca traffic island / tiny park. Community Board 1 will decide Chabad's request tomorrow. But, as the New York Times reports, placing a sukkah in a public space raises "difficult questions":
…Is the sukkah merely a cultural symbol, or is it unmistakably religious in character? Does the government endorse its religious significance by allowing it to occupy a big chunk of a park when symbols of other faiths are not represented?
Despite several Supreme Court rulings, religious displays — whether of crèches, crosses, menorahs or the Ten Commandments — remain a subject of great ambiguity, civil liberties lawyers say.…
Arthur Eisenberg, legal director of the New York Civil Liberties Union, said one widely accepted principle is equality: The government cannot discriminate against groups that seek access to the park, cannot “favor some religions over others” and “cannot privilege nonreligious expression over religious expression.”
Nathan Lewin, a lawyer who has successfully represented Chabad in menorah cases, said government can accommodate religious displays but cannot appear to endorse them, an impression that might be created by a nativity scene stationed inside a government building with no other religious symbols nearby.…
[T]he city has at times indicated that more blatant religious images might stir questions. The Department of Transportation removed a crèche last Christmas from the St. George Ferry Terminal in Staten Island, drawing protests from some priests and ministers. A department spokesman said the crèche had been removed because a staff member had put it up without authorization, but he also said that menorahs and Christmas trees were “consistent both with traditions at the ferry terminal and also with legal precedent.” Supporters of a crèche said the suggestion was that trees and menorahs were seasonal images and not as blatantly religious as a figure of the baby Jesus.…
Generally, municipalities who allow Christmas trees and menorahs want both displayed near each other both in space and in time.
Holidays like Sukkot or Ramadan pose a problem, because they rarely coincide with each other and never coincide with Christian holidays.
So symbols of these holidays – the Sukkah, for example – stand alone.
Added to this problem of implied endorsement in this case is the tiny size of the park, which will be overwhelmed by the Sukkah.
There isn't an easy answer to these problems.
And then we have a question: Did Chabad back the creche that was removed from St. George Ferry Terminal?
If it did not, it calls into question the legality of its public menorah displays.
If it did, it's backing something that is a form of idol worship according to Chabad theology.
Would Chabad defend the placement of a giant Buddha in in the same traffic island it's sukkah will be in?
What about a Jews for Jesus sukkah? Would Chabad defend that?
These are the real questions the Times should have asked.