Thursday, December 5, 2002

City asks full court for new ruling

Justice Stevens didn't consider that menorah case was strictly about physical structures, lawyers say

By Dan Horn
The Cincinnati Enquirer

The city of Cincinnati asked the U.S. Supreme Court Wednesday to reconsider its decision to allow a Jewish group to erect a menorah on Fountain Square during the holidays.

Supreme Court Justice John Paul Stevens ruled last week that the menorah, which is more than 10 feet high, could be installed on the square. But Wednesday the city asked all nine members of the court to consider the issue and reverse the decision.

The appeal to the Supreme Court is the latest volley in a legal battle that has raged for most of the past week over whether privately sponsored holiday displays should be allowed on the square.

City lawyers say a new law that bars such displays is a legal and reasonable way to control clutter on the square during the busy holiday season. The law forbids "unattended physical structures" as well as large gatherings or protests on the square.

Chabad of Southern Ohio, a nonprofit Jewish organization, filed a lawsuit claiming the new law was unconstitutional because it allowed only "government speech" on the square while barring the speech of citizens.

U.S. District Judge Susan Dlott agreed with Chabad and ordered the city to let the group erect the menorah. But the U.S. Sixth Circuit Court of Appeals blocked enforcement of her order pending an appeal by the city.

Chabad then asked Justice Stevens, who oversees the Sixth Circuit, to reinstate Judge Dlott's order. Justice Stevens agreed, and the menorah went up this week.

In the latest appeal, the city argues that the full court should immediately reverse Justice Stevens' decision.

City lawyers contend Justice Stevens did not consider that the city has narrowed its enforcement of the new law to include a ban only on physical structures, such as the menorah, and not on constitutionally protected acts, such as protests or meetings. Chabad's lawyer, Marc Mezibov, said the law specifically bans protected speech and therefore is unconstitutional. He said he will file a response with the Supreme Court today.

E-mail dhorn@enquirer.com