By Dan Horn
The Cincinnati Enquirer

The City of Cincinnati on Friday was ordered to allow a Jewish organization to install a 10-foot-high menorah on Fountain Square this holiday season after all.

The surprise decision by Supreme Court Justice John Paul Stevens overrules an appeals court order that had blocked installation of the menorah.

JUSTICE'S DECISION

Text of U.S. Supreme Court Justice John Paul Stevens' decision Friday that the city could not ban private displays on Fountain Square. The case is Chabad of Southern Ohio and Congregation Lubavitch v. City of Cincinnati. "The Court of Appeals for the Sixth Circuit has entered a stay of a District Court order enjoining enforcement of a city of Cincinnati ordinance, and plaintiffs have filed a motion with me as Circuit Justice seeking an order vacating that stay. "As did the District Court, the Court of Appeals states that the ordinance in question `reserves the exclusive use of Fountain Square to the City' for the 7-week period beginning today. "Though the city has filed a narrowing interpretation of this ordinance with me, for the purposes of the present motion I accept the construction of the ordinance by the courts below (who also had the benefit of this narrowing interpretation) even if I might have arrived at a different conclusion without such guidance. "Under the District Court's reading, the ordinance is significantly broader than a reservation of the exclusive right to erect unattended structures on the square during this period of high use, which I assume the city could have reserved to itself. "Given the square's historic character as a public forum, under the reasoning in this Court's decision in Capitol Square Review and Advisory Bd. V. Pinette 515 U.S. 753 (1995), I think the District Court correctly enjoined the city from enforcing `those portions' of the ordinance `which give the City exclusive use of Fountain Square' for the next seven weeks. "It follows, I believe, that the Court of Appeals' stay should be vacated."

The decision means the city cannot enforce a new law that bans private holiday displays and events on the square, clearing the way for Chabad of Southern Ohio to erect the menorah and for other groups to install their own displays.

"The First Amendment rights of Chabad and of all Cincinnatians have been upheld," Chabad's lawyer, Marc Mezibov, said after Justice Stevens issued his ruling late Friday.

City lawyers have argued that the ban on private displays is needed to maintain order and to control clutter on the square during the busy holiday shopping season.

Mayor Charlie Luken defended the city's ban and said he was disappointed in Justice Stevens' ruling.

"I do tire of federal judges telling us what to do when they don't have to live with the consequences," Mayor Luken said Friday, just moments after he watched the lighting ceremony of the city's Christmas tree on Fountain Square. "They won't be here when a hundred people line up to yell at me about this."

Justice Stevens' decision is the latest and most significant intervention of the federal courts into the long legal battle over how Fountain Square should be used during the holidays.

The battle began in the early 1990s when a federal court ruled that the city must allow open access to everyone, including a Ku Klux Klan member who asked to place a large cross on the square.

Since then, every attempt by the city to restrict use of the square has been ruled unconstitutional.

In his two-page order late Friday, Justice Stevens declared that Fountain Square's "historic character as a public forum" prevents the city from granting itself exclusive use of the square during the holidays.

His decision upheld a ruling Wednesday by U.S. District Judge Susan Dlott, who had described the city's ban as an "offensive" violation of the rights of private citizens to express themselves on the square.

"It replaces private speech with a city-sponsored display that promotes the city's specific governmental interests," Judge Dlott wrote in her decision. "This ordinance attempts ... to transform Fountain Square into a zone where only the city's message is welcome."

Judge Dlott threw out the ban and ordered the city to return to its practice of issuing a limited number of permits for private displays on a first-come, first-served basis.

Hours after her ruling, the U.S. Sixth Circuit Court of Appeals granted a stay that barred enforcement of her order until the case is resolved on appeal, a process that could take months.

Mr. Mezibov then asked Justice Stevens, who oversees the Sixth Circuit, to reinstate Judge Dlott's original order. The justice agreed.

"I think the District Court correctly enjoined the city from enforcing those portions of the ordinance which give the city exclusive use of Fountain Square," Justice Stevens wrote.

He also said the city's new law imposed a ban that appeared to be "significantly broader" than a simple restriction on physical structures, such as a menorah or a cross.

That's the same argument Mr. Mezibov made before Judge Dlott earlier in the week, when he complained about a passage in the new law that requires permits for anyone who wants to "hold an event, protest, rally or meeting."

Since the new law does not allow permits between the last week of November and the first week of January, those forms of expression also are banned, Mr. Mezibov said.

"The ordinance impacted much more than religious speakers," Mr. Mezibov said Friday. "The ordinance potentially affects every Cincinnatian who wants to use Fountain Square as a public forum."

Justice Stevens' order did not come in time for Chabad to erect the menorah before the start of Hanukkah at sundown Friday. But Mr. Mezibov said he expects the menorah, a candelabrum with seven or nine branches, to be up by Sunday.

The city has received at least a dozen other requests this year for permits to erect displays, but it was unclear late Friday how those requests would be handled.

Enquirer reporter Robert Anglen contributed to this report.