Tonight, according to the New York Times, the Community Board for New York’s neighborhood of TriBeCa (if the Times spells it that way, so will we) votes on whether to allow a Jewish group to erect a sukkah, a ritual hut associated with the Jewish autumn holiday of Sukkot, in a neighborhood park. It’s not clear how the Board will vote.  A few members apparently have concerns about allowing religious symbols like the sukkah in a public park.  As a legal matter, the sukkah is probably acceptable.  Once the state opens up a public forum for private speech, it cannot discriminate on the basis of content. The state must treat religious and non-religious speech equally — and it seems that the city does allow private speech in Duane Park.  Also, although the Supreme Court’s case law on religious displays is famously unpredictable, past decisions suggest that a private group may erect a religious display on public property as long as reasonable observers would not conclude that the state had endorsed the group’s religious message.  So it might be a good idea for Chabad, the group seeking permission for the sukkah, to include some sort of disclaimer that makes clear that the sukkah is not an official city structure.  However the Board decides, this case could well reach the courts. — MLM

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