The Third Circuit Court of Appeal's decision in favor of the
Tenafly Eruv Association's quest to maintain an eruv in
Tenafly, New Jersey was heartily welcomed by Agudath Israel
of America.
A U.S. federal appeals court panel ruled that the borough of
Tenafly, N.J., cannot remove a symbolic line set up by
Orthodox Jews in town. Doing so would violate the rights of
the Orthodox community, which has 50 to 75 families, and
would amount to unconstitutionally selective enforcement of
the town's laws.
The unanimous decision, by three judges of the United States
Court of Appeals for the Third Circuit, reversed a federal
District Court ruling in 2001 that allowed the borough to
remove the eruv, a series of black plastic strips put up in
2000 around utility poles in town, creating an enclosure in
which Orthodox Jews are allowed to push baby strollers and
wheelchairs and carry objects outside their homes on the
Sabbath.
The Borough of Tenafly, after a town meeting in which
vehement anti-Orthodox sentiment was expressed, had sought to
remove the eruv, and the eruv backers went to court to bar
the eruv's removal.
After the District Court ruled in favor of Tenafly, the Eruv
Association and a number of individual Orthodox Jews --
represented by noted Washington-based attorneys Nathan Lewin
and Alyza Lewin and by the New York law firm of Weil, Gotshal
and Manges -- appealed to the Third Circuit.
Agudath Israel, for its part, filed a 'friend of the court'
brief with the court, arguing that Tenafly's opposition to
the eruv was based on anti-Orthodox prejudice and violated
the rights of Tenafly's Orthodox residents.
The Court of Appeals found that anti-Orthodox prejudice had
indeed infected deliberations concerning the eruv, and ruled
that there was sufficient evidence for an injunction
preventing Tenafly from removing the eruv.
The Court found that although Tenafly had on its books an
ordinance that prohibited the placing of signs and the like
on public property, including on utility poles, in practice
the town permitted many exceptions (including house numbers,
church directional signs, holiday displays and the like).
It was only when the Orthodox community sought to place
unobtrusive plastic strips on the poles that would constitute
an eruv that members of the Tenafly Council objected.
The Court ruled that Tenafly's selective, discretionary
application of the ordinance against the eruv violated the
constitutional rights of Orthodox Jews under the free
exercise clause of the First Amendment, "because it
'devalues' Orthodox Jewish reasons for posting items on
utility poles. and thus singles out the plaintiffs'
religiously motivated conduct for discriminatory
treatment."
The Court further rejected Tenafly's claim that a community
eruv was an improper government endorsement of religion under
the Establishment Clause of the First Amendment. Citing
recent Supreme Court precedents, the Third Circuit ruled that
were the eruv to be allowed, "a reasonable observer would not
believe that [Tenafly] was promoting Orthodox Judaism," and
that to the contrary, "there is a much greater risk that the
observer would perceive hostility toward Orthodox Jews if
[Tenafly] removes the [eruv]."
Alluding to some anti-eruv residents' expressed desire to
prevent Orthodox Jews from making their residences in
Tenafly, David Zwiebel, Agudath Israel's executive vice
president for government and public affairs and the principal
author of the brief, said, "What we had here, sadly, was a
municipality that sought to discourage a religious group from
residing within its borders.
"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. This decision thus represents not
only a victory for religious rights but an equally welcome
rejection of bigotry against all religiously observant
Americans."
Chaim Book, the spokesman for the Tenafly Eruv Association,
was happy with the decision.
"It's really our hope that at this point the town will
realize that there's no point in proceeding," he said. "It
gets to a point where you have to say to yourself, "Is it
really worth investing more time, money and energy in this?'
We've been part of this town for three years now. I think
we're a positive force in this town, and we're hoping the
town will recognize that as well."
Bruce S. Rosen, one of three lawyers representing the town in
the case, said it is considering an appeal, either to the
entire Third Circuit Court or to the United States Supreme
Court.
If the town does not appeal the ruling, the case goes back to
trial in United States District Court in Newark, he said.
As for the ruling, Mr. Rosen said, "My initial opinion is
that it twisted and stretched some previous decisions of both
the Third Circuit and U.S. Supreme Court beyond
recognition."
Ann Moscovitz, the mayor of the borough, said she was
disappointed by the ruling and would discuss it with the
borough's council. The group is scheduled to meet Nov. 7,
although a special meeting may be called to discuss the case,
she said.
