American Jewish Congress v. City of Beverly Hills

Plaintiffs-appellants, the American Jewish Congress and individual members (collectively “the Jewish Congress”), challenge under the religion clauses of the United States and California constitutions the action of defendants-appellees, the City of Beverly Hills and individual officials (collectively “the City” or “Beverly Hills”) in permitting defendant-in-tervenor-appellee Chabad of California, Inc., (“Chabad”) to erect a 27-foot menorah in a public park near City Hall during the holiday season. The Jewish Congress also claims that the City’s general policy and practice of permitting unattended displays of large religious objects on public property is unconstitutional. The district court granted summary judgment in favor of the City. We reverse.

I

Since 1986, Beverly Hills has allowed Cha-bad to erect a menorah in Beverly Gardens Park for approximately two weeks each year during the Chanukah season. The menorah is 27 feet tall and 24 feet wide, and weighs 5,500 pounds. It is bolted to a permanent, concrete foundation that the City allowed Chabad to install in the park; Chabad covers the foundation with sod during the rest of the year. Each branch of the menorah is topped with a…

concurring in part, dissenting in part, and concurring in the judgment:

I concur in Parts II.C.2 and II.C.3 of the majority opinion, and I concur in the judgment. I cannot join, however, the majority’s treatment of the state and federal Establishment Clause issues presented by this appeal.

I agree with the majority insofar as it concludes that the Jewish Congress has raised a triable issue of fact as to whether the City of Beverly Hills has favored Chabad of California in its administration of holiday displays in Beverly Gardens Park. The federal Establishment Clause, among other things, forbids governmental entities from giving sectarian religious groups preferential access to public property. Capitol Square Review & Advisory Board v. Pinette, — U.S. -, -, 115 S.Ct. 2440, 2448-49 , 132 L.Ed.2d 650 (1995) (plurality opinion); see, e.g., County of Allegheny v. ACLU, 492 U.S. 573, 599-600 , 109 S.Ct. 3086, 3104-05 , 106 L.Ed.2d 472 (1989) (county impermissi-bly favored sectarian religious speech by giving it preferential access to the “Grand Staircase” of the county courthouse). It appears from the record that the City of Beverly Hills may have manipulated its holiday display…