Best of the Web Today, James Taranto's blog for OpinionJournal, made a rare foray into halacha last week by discussing the selling of chametz (see last item).
The American Civil Liberties Union threatened to sue the city of Frederick, Md., over a Ten Commandments monument in a city park, so Mayor Jennifer Dougherty came up with a clever idea: She sold the land on which the monument sat to the local chapter of the Fraternal Order of Eagles. Since it's no longer on public land, she argued, it doesn't violate the separation of church and state--even though it's still in the middle of a city park.
Secularists, though, insisted the sale was a scam. Writes Taranto: "Which just goes to show you that American secularists are more orthodox even than the most observant Jew."
From a halachic perspective, I can understand the secularists' position. The sale of chametz is subject to dispute even among Orthodox Jews, and some will not rely on it regarding absolute chametz ("chametz gamur"), which is a Torah-level prohibition. They will sell only various second-degree types of chametz which are prohibited only rabbinically.
So for ACLU secularists, who hold that the association of church and state is forbidden by the Constitution (d'oraitha, so to speak, l'havdil), I can understand why they would be machmir (rule strictly) on selling the parkland.
Regardless, a better analogy than the sale of chametz is perhaps the heter mechira, the temporary sale of agricultural land to non-Jews to circumvent the sabbatical restrictions of the Shmitta year. Like the Frederick park, this primarily involves the sale of land, not goods. The heter mechira, however, is a relatively recent innovation and remains hotly contested among Orthodox Jews, many of whom reject it entirely.
On final analysis, the Frederick sale seems on more solid ground than either of the halachic analogies. The land sale is presumably permanent, unlike the temporary sales for chametz or shmitta. If the court upholds the sale, it's hard to find constitutional fault with leaving the monument in place.
(Note: The usual "I am not a lawyer or rabbi" disclaimers apply.)