By Dan Horn
The Cincinnati Enquirer

The city of Cincinnati was sued Tuesday over City Council's decision to ban religious displays on Fountain Square during the holidays.

The federal lawsuit claims the ban, which was approved by City Council in April, is unconstitutional because it allows "government speech" while barring "religious speech."

The suit was filed in U.S. District Court by Chabad of Southern Ohio, a nonprofit Jewish organization that has for years obtained a city permit to display a large menorah on the square.

"This city ordinance has Orwellian implications," said Marc Mezibov, Chabad's attorney. "It deprives our citizens of the opportunity to exercise free speech and express their religion on what is traditionally a public forum."

Mayor Charlie Luken said the city's new rules are a constitutional and reasonable way to resolve the long-running dispute over how Fountain Square should be used during the holidays.

"This was adopted to try to keep some order on Fountain Square," Mr. Luken said. "We've got a long history of problems associated with the holiday season."

Lawsuits over the use of Fountain Square have become something of a holiday tradition in Cincinnati, ever since the Ku Klux Klan first tried to erect a cross on the square in the early 1990s.

The Klan's holiday displays prompted a legal battle that ended with a federal judge ordering the city to allow the cross, as well as displays by religious organizations.

Since then, the city has attempted to regulate the holiday displays by requiring groups to apply for one of a limited number of permits, which were granted on a first-come, first-served basis.

The Klan was frequently blocked from using the square because other groups applied for and received of the permits before the Klan signed up.

This year, though, city lawyers recommended a new, more restrictive policy that gave the city exclusive rights to the square from the last two weeks of November through the first week of January.

In hopes of avoiding a constitutional challenge, the new policy states the reason for the ban on displays is purely economic: The city hopes to encourage economic development by keeping the square uncluttered during the busy holiday retail season.

The lawsuit contends that argument is absurd. Mr. Mezibov said the city has traditionally allowed religious speech during the holidays and throughout the rest of the year. To ban it now, he said, is unfair and unconstitutional.

"The ordinance deprives religious speakers, organizations and groups ... from engaging in the free exercise of their religion in a traditional forum during the most religiously significant season of the year," the lawsuit states.

The suit seeks a court order declaring the city's new policy unconstitutional and allowing Chabad to display the menorah during the first week of December. A menorah, a candelabrum with seven or nine branches, is a symbol of Judaism.

E-mail dhorn@enquirer.com