Tenafly Eruv Association, Inc. v. The Borough of TenaflyAn eruv is a ceremonial demarcation of an area within which Orthodox Jews may engage in certain activities on the Sabbath that would otherwise be prohibited. These activities include lifting, carrying or pushing objects, and thus would preclude carrying a young child or pushing a wheel chair for an elderly or handicapped person en route to religious services, for example. Typically, an eruv is put in place by using existing horizontal wires strung on utility poles together with vertical black rubber strips, called lechis, that form a symbolic "doorway." The practice has been used by Orthodox Jews for 2,000 years, based on principles derived from the Bible, developed in the Talmud and codified in Jewish Law. They are generally established by means of a ceremonial proclamation issued by municipal authorities, as has been done in such cities as Washington, DC, Baltimore, MD, Cincinnati, OH, Charleston, SC and Jacksonville, FL. Indeed, even the U.S. Supreme Court building in Washington, DC sits within the boundaries of an eruv. The Tenafly controversy began with a meeting between supporters of an eruv and Mayor Ann Moscovitz in June, 1999. The Mayor said that she didn't have the authority to act on the request and that a formal proposal would have to be made to the Tenafly Borough Council. At a July Council work session, the Mayor spoke in favor of an eruv, but a number of residents who expressed their views at the meeting were vehemently opposed. A typical view was expressed by a man who expressed concern "that the Orthodox would take over" in the community. At the end of the meeting, the Council decided informally not to act on the matter unless a formal written request was made. In August 1999, the Tenafly Eruv Association approached Bergen County Executive William Schuber, asking whether he would be willing to issue the necessary ceremonial proclamation. He did so on December 15, 1999. With the proclamation in hand, in April, 2000 the Eruv Association asked Bell Atlantic (subsequently renamed Verizon) for permission to hang the lechis necessary for the eruv to the company's poles. In June, Verizon granted permission, and with donated help from Cablevision trucks and crews, the eruv was completed in September, 2000. At about the same time, Tenafly officials became aware that the eruv had been put in place, and on October 10, the Borough Administrator sent a letter to Cablevision demanding that it be taken down. The Eruv Association then got the Borough to agree to allow the eruv to remain up for 30 days to allow time to make a formal request of the Council for permission to keep it up. Hearings were held on November 28 and December 12, and at the conclusion of the December 12 meeting, the Council voted 5-0 to deny the application. The next day, the Borough Counsel sent a letter to Cablevision ordering it to remove the eruv, and on December 15, the Tenafly Eruv Association filed suit against the Borough. A temporary restraining order permitting the eruv to remain undisturbed pending resolution of the case was issued the same day. On August 9, 2001, U.S. District Judge William G. Bassler issued a lengthy decision in which he concluded that the Tenafly Eruv Association was unlikely to succeed on the merits of the case, and denied their motion for a preliminary injunction. He also dissolved the earlier temporary restraining order that had permitted the eruv to remain undisturbed. The decision was immediately appealed to the U.S. Court of Appeals for the Third Circuit, which heard oral arguments in the case on March 21, 2002. On August 28, 2001 The Becket Fund for Religious Liberty filed an amicus curiae brief (PDF format, 149K) with the appeals court, asking that it reject the reasoning of the district court and "grant Appellants' motion for an injunction to maintain the status quo by prohibiting removal of the plastic strips while this appeal is pending." In mid-September, the court ordered that the eruv be allowed to remain pending appeal. On November 9, The Becket Fund filed a second amicus brief (PDF format, 168K), presenting a detailed discussion of why the Borough's action was viewpoint discrimination unsupported by a compelling government interest. On October 24, 2002, the Third Circuit issued a decision (PDF format, 142K) finding that "the District Court should have preliminarily enjoined the Borough from removing the lechis pending a trial." It reversed Judge Bassler's denial of injuntive relief and ordered him to issue a preliminary injunction barring the Borough from removing the lechis. "Our review of the record leaves us convinced that, in addition to the reasonable probability that the plaintiffs will ultimately prevail on their free exercise claim, the remaining three factors for injunctive relief—irreparable injury, the balance of hardships, and the public interest—also favor a preliminary injunction. Limitations on the free exercise of religion inflict irreparable injury." Finally, the appeals court held that the case must be decided using strict scrutiny: Because the Borough's decision to remove the eruv is not neutral toward conduct motivated by Orthodox Jewish beliefs, it "must undergo the most rigorous of scrutiny." ____________ The Becket Fund successfully represented Muslim police officers in a religious discrimination suit against the city of Newark (F.O.P. v. Newark), a case that represents controlling Third Circuit precedent. Judge Bassler did not cite, and indeed made no mention of F.O.P. v. Newark in his August 8 decision. We have also posted the excellent amicus curiae brief filed with the Third Circuit in this case by Agudath Israel of America (PDF format, 202K), which defends both religious liberty in general and the rights of Orthodox Jews in particular. (Tenafly Eruv Association, Inc. v. The Borough of Tenafly, U.S. District Court for the District of New Jersey, Civ. No. 00-6051 (WGB)) Articles & News Items
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