In addition, the Supreme Court is due to consider a more recent case concerning the county administration building of Allegheny County, PA. A federal appeals court ruled that administrators should not have flanked the building's front entrance with a 45-foot Christmas tree and a menorah of nearly equal size.

That court found that the Allegheny County decorations, on a public building were different from the Pawtucket nativity scene, on a publicly owned field. It ruled that the position of the decorations, especially the menorah, implied public "establishment" of specific religions.

Legal scholars say the Supreme Court will clear up many vague aspects of the law on this subject when it decides the case. But Posner added that it probably will not do so before Chanukah.

This year, David Sullivan says, "the city isn't sponsoring any of the displays being made."

Sullivan says Posner asked for the Council's permission to erect the menorah in Harvard Square because he was "not dealing with the Common, so additional authorization was needed." Posner said he wanted to light the candles near Out of Town News because more people would see them there than on the Common.

Asked why he wanted to put a menorah in Harvard Square this year, Posner replied, "The question is, why not last year?"