Manhattan, NY – Legal Musings on Bryant Park Sukkah

Manhattan, NY – Last month, Bryant Park hosted the white tents and devotees of Fashion Week. This month, it’s been replaced by another temporary structure with very different guests: a large sukkah, or ceremonial hut, where Jews pray and dine in celebration of the eight-day harvest holiday of Sukkot.

“A sukkah is a symbol of universal good will and good cheer,” said Rabbi Joshua Metzger, the religious leader of Chabad Lubavitch of Midtown Manhattan which has been erecting and running the structure for 13 years. The hut, stained orange and adorned with flowers and bales of hay, took 18 hours to construct and cost more than $10,000, Rabbi Metzger said. It is open, he says, to people of all faiths to eat, sit, pray or just enjoy the shade of the fir branches strewn across its top.

But while the message of the sukkah may be intended to be universal, it is undeniably a Jewish symbol. So its location in a city-owned public space, operated by a nonprofit, the Bryant Park Corporation, raises the potentially thorny issue of constitutional separations of church and state.

“Cities are not supposed to endorse a partisan or sectarian message, and a sukkah would represent that” if the city were sponsoring it, said Ira Lupu, a professor at the George Washington University Law School who specializes in constitutional law. “If the city is recognizing that this is the harvest festival, and we should thank God for the good harvest, that would be a constitutional problem,” he said.

But the signs on the holiday display make clear that the Jewish group is responsible: “Chabad Lubavitch of Midtown wishes you a happy Sukkot.” Congregants hand out glossy fliers emblazoned with the group’s name that speak of “Midtown Manhattan’s newest attraction.”

Branding the building this way is helpful, Professor Lupu says, in staying within the law.

Daniel Mach, director of litigation at the American Civil Liberties Union Program on Freedom of Religion and Belief, said the treatment of other groups is a factor, too. “If they are giving preferential treatment to a religious display, if they deny the request of one group to erect a tent of the same dimensions, with the same impact on the park,” then they risk being unconstitutional, he said.

But Phil Abramson, a spokesman for the parks department, said it “accommodates cultural, athletic, political and religious events of all kinds.” He added, “When permit requests arrive, they are individually evaluated, and we ensure that any installations are in areas that would not impede public access.”

Mr. Abramson declined to discuss the criteria used when evaluating events.

Bryant Park, like many city parks, hosts a large Christmas tree in the winter months. But Professor Lupu said cities often defended those displays by citing a 1989 United States Supreme Court ruling that “as observed in this Nation, Christmas has a secular, as well as a religious, dimension.”

New Yorkers near the rustic structure in Bryant Park on Monday seemed largely unaware of the constitutional implications.

“There are always so many diverse things going on here,” said Charlie Muller, 50, who works in finance and eats lunch in the park most days. “It’s what keeps me coming back.” Mr. Muller also saw no difficulty in a religious display on public property: “It’s part of the fabric of the city,” he said, “like Fashion Week a couple of weeks ago, but with more yarmulkes.”

Yukari Hakada, 31, a student, sat facing the sukkah with her laptop. “I didn’t notice it,” she said. “I just came for the WiFi.”