In a brief filed before a federal appeals court, Agudath
Yisroel of America made the legal case that the borough
council of Tenafly, New Jersey improperly forbade the
maintenance of an eruv -- a symbolic enclosure creating a
"private domain" where objects may be carried on the Jewish
Sabbath -- on the town's property.
Most strikingly, the amicus curiae, or "friend of the court,"
brief by Agudath Israel of America invokes not only case law
but evidence of less-than-highminded motivations on the part
of some of the eruv's opponents.
The Agudath Israel brief submitted to the U.S. Court of
Appeals for the Third Circuit maintains that the federal
district court that earlier this year ruled in favor of the
Borough of Tenafly erred in rejecting eruv proponents' claim
that the borough's rejection of the eruv violated their free
exercise of religion and fair housing rights.
The brief, written by Agudath Israel attorneys Chaim Dovid
Zwiebel, Mordechai Biser and Abba Cohen, relies heavily on a
1995 case involving the upstate New York Village of Airmont,
where a federal appellate court ruled that the Village's
prohibition against the establishment of home-based houses of
worship violated the rights of local Orthodox Jewish
residents.
Agudath Israel asserts that the Airmont case has direct
implications for the legality of Tenafly to outlaw its eruv
because the earlier decision also involved a municipal
decision that merely had a chilling effect on Orthodox Jews'
desire to move into a community.
Thus, even though the lack of an eruv in Tenafly does not
entirely prevent observant Jews from moving to the town,
notes the Agudath Israel brief, the absence will clearly make
Tenafly a less attractive community for many potential
Orthodox residents.
Furthermore, Agudath Israel maintains, Tenafly's decision to
outlaw the local eruv has that effect not incidentally but
intentionally. Moving beyond the effects of the eruv's
dismantling, the brief focuses a harsh but illuminating
spotlight on the apparent intentions of some of the eruv's
opponents.
The brief asserts that the actions of Tenafly's borough
council were taken with the specific purpose of discouraging
Orthodox Jews from living in the municipality.
While the district court found "that the borough council did
not act out of some deep-seated anti-Semitism or hatred for
religion," Agudath Israel's brief cites a number of
disconcerting indications to the contrary.
One was in the form of a public statement by a member of the
Tenafly borough council.
Warning of "change[s] in the community" that he asserted
would come about with the influx of Orthodox Jews an eruv
would bring, the councilman observed that "It's become a
change in every community where an ultra-orthodox group has
come in. They've willed the change. They've willed a change
in the state of Israel. They've willed it so much so that
they've stoned cars that drive down the streets on the
Sabbath."
Another Tenafly eruv opponent pointed to the changes in a
nearby community when Orthodox Jews started moving in:
"Just take a look at what happened in Teaneck. Teaneck was
beautiful. Teaneck had beautiful stores. Almost every store
in Teaneck today is geared towards the Orthodox. If this [the
eruv] is granted, let's all be honest, more and more Orthodox
people are going to move here. The more people that move
here, they're not going to buy their meat in the Grand Union,
they're going to a Glatt Kosher Orthodox store. They're going
to be looking to open up businesses in Tenafly. They're going
to have the same thing that happened in Teaneck."
While Agudath Israel notes that some of the opposition to the
Tenafly eruv may not have been rooted in a conscious desire
to exclude Orthodox Jews, the fact that much of it clearly
was should be sufficient for the case to be treated as one of
intentional religious discrimination.
The brief points out that the sentiments expressed in Tenafly
seemed to mirror feelings expressed by opponents of Orthodox
Jews' presence in several other American locales.
Agudath Israel's brief quotes several examples, including the
admission of one of the defendants in the Airmont case that
"the only reason we formed this village is to keep those Jews
from Williamsburg out of here" and a Beachwood, Ohio
resident's assertion, in opposition to the construction of
several religious buildings, that "when the Orthodox began
moving onto Taylor Road, the non-Orthodox felt they were
being pushed out. You didn't want Beachwood to be a
ghetto."
"What we have here, sadly, is a municipality that is seeking
to prevent a religious group from residing within its
borders," says Mr. Zwiebel.
"The borough council's vote against the eruv was nothing
more, nothing less, than an expression of anti-Orthodox
paranoia -- the type of paranoia that has unfortunately
become an all too common feature in suburban communities
across the United States.
It is important that this disturbing phenomenon be confronted
head-on."
In an unrelated development in a "friend of the court" legal
brief submitted to the United States Supreme Court, the
National Jewish Commission on Law and Public Affairs, joined
by Agudath Israel of America, the Orthodox Union and other
Orthodox Jewish groups, has urged the High Court to uphold
the constitutionality of Cleveland's controversial school
voucher program.
The brief, authored by Washington attorneys Nathan Lewin and
Alyza Lewin with the assistance of several other prominent
Orthodox lawyers, expresses the Orthodox community's support
for programs that permit the use of tax moneys by parents to
educate their children in the schools of their choice.
As long as funds are neutrally provided to parents and not
directly to schools, the brief argues, such "school choice"
programs, even when used by parents to help pay for religious
schooling, do not violate the First Amendment's separation of
church and state.
The Cleveland program provides tuition aid to parents of
nearly 4,000 students who have left public schools in
Cleveland that their parents felt were failing.
Lower courts reached opposite conclusions about whether the
program is constitutional, and the High Court's decision,
expected in June, will settle the issue -- and perhaps decide
the fate of similar programs in other states as well.
The Orthodox groups' brief catalogues the growth of Jewish
day school and yeshiva education in the United States, and
asserts that "with growth come growing pains" -- serious
fiscal problems that make it difficult for many yeshivos to
provide the types of quality religious studies/secular
studies dual education program to which they are committed,
and for some parents to choose yeshiva education for their
children.
"That is why," the brief asserts, Orthodox Jewish groups
"have had a long-standing interest in promoting and defending
constitutionally-permissible means of expanding the range of
parental choice in education," such as the Cleveland voucher
program.
At the same time, the brief notes, school choice initiatives
like Cleveland' s benefit all sectors of society. "By
enabling parents to direct state education funds to any
qualified school that, in the view of the parents, offers the
best education for their children, school-voucher laws open
new avenues for educational improvement of all schools
throughout the nation."
Briefs in opposition to the Cleveland program are expected to
be filed by a number of non-Orthodox Jewish groups, which
have long been in the forefront of the effort to oppose
governmental assistance to religious schools and the
constituencies they serve.
Commented Agudath Israel's executive vice president for
government and public affairs, Chaim Dovid Zwiebel, who also
participated in the authorship of the brief:
"For far too long, the debate over school vouchers has been
dominated by legalistic discussions of constitutional
concern. If the Supreme Court upholds the Cleveland program,
as we expect it will, perhaps society will finally get around
to focusing on the really important issue: improving
education by expanding parents' choice. And perhaps the
establishment of American Jewish organizations will finally
get around to focusing on the centrality of Jewish education
in ensuring Jewish continuity."
