Lubavitch of Iowa, Inc., and Moishe B. Kasowitz, Appellants, v. Jack B. Walters, Director of General Services of the Stateof Iowa, and the State of Iowa, Appellees, 808 F.2d 656 (8th Cir. 1986)

The order of the District Court, denying plaintiffs' motion for preliminary injunction, is affirmed. We find no abuse of discretion in the District Court's action. We agree with that court that the constitutionality of the Christmas tree in the rotunda of the state capitol is not before us. In addition, on the present sketchy state of this record, we know too little about the total context in which the tree is placed, or any display that may surround it.

Affirmed.

ARNOLD, Circuit Judge, dissenting.

A Christmas tree owned by the State of Iowa has been erected in the rotunda of the state capitol. Another Christmas tree, also owned by the state, has been erected on the capitol grounds. The ornaments on the tree in the rotunda of the state capitol include angels. The state is obligated to treat all religions evenhandedly. Allowing the placement of these Christmas trees, while at the same time denying permission for the Menorah, appears to be a discrimination against the Jewish religion. So long as Christian symbols are permitted, other religions should be given equal treatment.

I would therefore grant the relief sought by plaintiffs-appellants, leaving, however, to the state the option of removing any unattended Christmas trees from the state capitol and its grounds, in which event the state would be free not to allow an unattended Menorah on the capitol grounds.