MEMORANDUM OF
LAW IN SUPPORT
OF THE GREAT
NECK ESTATES
ERUV
APPLICATION
_____________________________
PRELIMINARY STATEMENT
An 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 in Washington, DC sits within the boundaries of an eruv. In 1990, President Bush praised the work of the District of Columbia Eruv Committee for creating an inconspicuous eruv that includes Capital Hill and the White House, thereby permitting Orthodox Jews, including several Members of Congress, to attend meetings on the Sabbath.
ARGUMENT
I.
APPROVAL OF AN ERUV IS NOT A VIOLATION OF THE ESTABLISHMENT CLAUSE
The Establishment Clause of the First
Amendment of the Constitution to the United States, is made applicable to the
States by the Due Process Clause of the Fourteenth Amendment. The religion
clauses of the First Amendment to the United States Constitution provide that: "Congress
shall make no law respecting an establishment of religion, or prohibiting the
free exercise thereof". The first clause is referred to as the
establishment clause, the second the free exercise clause.
Although seemingly contradictory, the two
clauses must be interpreted together in that their common purpose is to secure
religious freedoms. See Choper, The Religion Clauses of the First Amendment:
Reconciling the Conflict, 41 U. of Pittsburgh L.Rev., p. 673. The
difficulty faced by courts in interpreting the aforedescribed clauses has been
"to find a neutral course between the two Religion Clauses, both of which
are cast in absolute terms, and either of which, if expanded to a logical
extreme, would tend to clash with the other". Walz v. Tax Commission of
the City of New York, 397 U.S. 664, 668- 669, 90 S.Ct. 1409, 1411, 25
L.Ed.2d 697 (1970); see, also, Zorach v. Clauson, 343 U.S. 306,
72 S.Ct. 679, 96 L.Ed. 954 (1952); Everson v. Bd of Educ., 330 US 1, 67
S.Ct. 504, 91 L.Ed. 711 (1947).
Approving an eruv is not volatile of the Establishment
Clause because an eruv is not a religious symbol. Neither the boundary markers of the eruv
nor the eruv itself have any religious significance. They are not objects of worship nor do they
play any theological role in the observance of the Shabbat. The eruv sends no religious message to
the rest of the community. Its existence
could not be discerned by anyone who has not been shown the boundaries. An eruv does not in any way force
other residents to confront daily images and symbols of another religion. Accommodating the religious customs of one
group by permitting the creation of an eruv does not necessarily advance
any one religion. Smith v. Community
Board No. 14, 128 Misc.2d 944, 491 N.Y.S. 2d 584, 587 (Sup. 1984), aff’d,
518 N.Y.S.2d 356 (N.Y. App.Div. 1987).
Under Jewish law the eruv does not
alter the religious observance of the Sabbath by observant Jews, these
congregants will continue to observe the Sabbath as they have all their lives
as they would without an eruv. It
merely allows observant Jews to engage in secular activities as pushing a
stroller or carrying a book while observing the Sabbath. ACLU of New Jersey v. City of Long Branch,
670 F.Supp. 1293, 1295-6 (D. NJ 1987).
The court in ACLU of New
Jersey v. City of Long Branch
continued: “By permitting the synagogue
to use its own funds to create an almost invisible boundary in which its
members may engage in secular activities on the Sabbath the City of Long Branch
is not putting its imprimatur on any public manifestations of religion, such as
moments of prayer in public schools or the posting of the ten commandments on
classroom walls. Wallace v. Jafree,
472 U.S. 38, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985); Stone v. Graham, 449
U.S. 39, 101 S.Ct. 192, 66 L.Ed.2d 199 (1980).
Providing equal access to public
facilities to people of all religions and enabling individuals to get to and
from their chosen places of worship safely are permissible accommodations by
the government. The government is
permitted to fix sidewalks outside churches, provide police protection and
basic utilities for mass outdoor religious gatherings, provide police to direct
traffic into synagogue parking lots and authorize a house of worship to install
additional street lights on public property to facilitate access to evening
services.” ACLU of New Jersey v. City
of Long Branch, 670 F.Supp. 1293, 1295 (D. NJ 1987).
There is no excessive entanglement of government with religion, if the city doesn't pay for the eruv or maintain it. Erecting the eruv will therefore not change the nature of the relationship between the government and religious organizations. The existence of the eruv will not cause “a kind of continuing day-to-day relationship which the policy of neutrality seeks to minimize.” Aguilar v. Felton, 474 U.S. 402, 414, 105 S.Ct. 3232, 3239, 87 L.Ed.2d 290 (1985). ACLU of New Jersey v. City of Long Branch, 670 F.Supp. 1293, 1297 (D. NJ 1987).
The court in ACLU of New Jersey v. City of Long Branch, concluded that “the permission to create an eruv does not violate the establishment clause of the First Amendment to the United States Constitution.” ACLU of New Jersey v. City of Long Branch, 670 F.Supp. 1293, 1297 (D. NJ 1987).
In those communities where there has been opposition to the creation of an eruv, or to the building or expansion of Orthodox synagogues, the opposition is often couched in soothing terms that emit no stench of religious bigotry. Sometimes, though, the mask drops, and it becomes clear that all of the high-minded rhetoric about such matters as the sanctity of the Establishment Clause and the need to avoid strife and preserve unity in the community is grounded in an irrational but palpable fear of an influx of Orthodox Jews into the community. The eruv - an unobtrusive, "virtually invisible boundary line indistinguishable from the utility poles and telephone wires in the area," Smith v. Community Board No. 14, 128 Misc.2d 944, 948, 491 N.Y.S. 2d 584, (Sup. 1984), aff’d, 518 N.Y.S.2d 356 (N.Y. App.Div. 1987), whose sole impact is to allow Orthodox Jews to carry on the Sabbath – should not be used to mask discrimination.
II.
REFUSAL TO ALLOW AN ERUV IS A VIOLATION OF THE FREE EXERICSE CLAUSE
It is important to remember, however,
that total separation of church and state is not mandated by the constitution,
nor would it be possible, since "[s]ome relationship between government
and religious organizations is inevitable". Lemon v. Kurtzman, 403 U.S.
602, 614, 91 S.Ct. 2105, 2112, 29 L.Ed.2d 745 (1971). What the court mandates
is accommodation for religious practices. This notion recognizes "that
there are necessary relationships between government and religion; that
government cannot be indifferent to religion in American life; and that, far
from being hostile or even truly indifferent, it may, and sometimes must,
accommodate its instructions and programs to the religious interests of the
people". (Tribe, 2 American Constitutional Law, 1978, § 14-4, p. 822; see
Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 1359, 79 L.Ed.2d 604,
610.) Thus, in the instant case, the proposed action of the Village’s agencies
does not establish religion but are a valid accommodation to religious
practice.
The court in Church of the Lukumi Babalu Aye,
Inc. v. City of Hialeah, 508 U.S. 520 (1993), holds that where government
makes a decision or takes an action that is designed to inhibit religion, the
full protection of the free exercise clause obtains. And, as the Court held in Brown
v. Borough of Mahaffey, 35 F. 3d 846 (3d Cir. 1994), where there is
intentional discrimination against religion, there is no need to demonstrate
the "substantiality" of the free exercise burden imposed by the
governmental action; "[b]ecause government actions intentionally
discriminating against religious exercise a fortiori serve no legitimate
purpose, no balancing test is necessary to cabin religious exercise in
deference to such actions." 35 F. 3d at 850.
Depending on the nature of the challenged law or government action, a free exercise claim can prompt either strict scrutiny or rational basis review. In Tenafly Eruv Assoc. et. al. v. Borough of Tenafly, 309 F.3d 144, 165 (C.A.3 N.J. 2002), the court ruled strict scrutiny should apply in the case of a Borough prohibiting an eruv. The court there relied on Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993) and Fraternal Order of Police v. City of Newark, 170 F.3d 359 (3d Cir. 1999), for the proposition that “government cannot discriminate between religiously motivated conduct and comparable secularly motivated conduct in a manner that devalues religious reasons for acting --- applies not only when a coercive law or regulation prohibits religious conduct, but also when government denies religious adherents access to publicly available money or property.” Because in Tenafly the removal of the eruv was not religion-neutral, strict scrutiny applied, the Borough of Tenefly was found to have violated the Free Exercise Clause and the eruv association won injunctive relief in the case. Tenafly Eruv Assoc. et. al. v. Borough of Tenafly, 309 F.3d 144, 169-172 (C.A.3 N.J. 2002).
Because the Free Exercise Clause requires neutral treatment of religion, see Employment Div v. Smith, 494 U.S. 872, 879, 110 S.Ct. 1595 (1990), only in the most unusual case could compliance with free exercise norms offend the Establishment Clause. See, Bd. O f Educ of Kiryas Joel Village Sch. Dist. v. Grumet, 512 U.S. 687, 114 S.C.t 2481 (1994) (O’Conner, J., concurring) (“The Religion Clauses prohibit the government from favoring religion, but they provide no warrant for discriminating against religion.”).
III.
NY Public policy advocates creation of Eruvs
Although the religion clauses and therefore the analysis above is
applicable to the states through the Fourteenth Amendment, Article 1,
section 3, of the New York State Constitution, additionally provides:
"The free exercise and enjoyment of religious profession and worship, without
discrimination or preference, shall forever be allowed in this state to all
mankind." New York courts have long recognized the principle of
accommodation. A representative quote from one of the cases under said section
states that "[t]he free practice of one's religion is a right deeply
cherished by the citizens of our State and Nation, and one that is zealously
protected by the free exercise clause of the First Amendment". Matter
of Martine S. v. Anthony D., 120 Misc.2d 567, 466 N.Y.S.2d 194 (1983). New
York courts have repeatedly held that by their very nature religious
institutions are beneficial to the public welfare and consequently proposed
religious uses should be accommodated. Jewish Reconstructionist Synagogue of
the North Shore, Inc. v. Incorporated Village of Roslyn Harbor, 38 N.Y.2d
283, 293, 379 N.Y.S.2d 747, 342 N.E.2d 534 (1975); Matter of Community
Synagogue v. Bates, 1 N.Y.2d 445, 154 N.Y.S.2d 15, 136 N.E.2d 488 (1956), Matter
of Holy Spirit Association for the Unification of World Christianity v.
Rosenfeld, 91 A.D.2d 190, 458 N.Y.S.2d 920 (1983).
CONCLUSION
For the reasons set forth in this
brief, the Village of Great Neck Estates should permit the request for approval
of the eruv.
Dated: September 29, 2005
Great Neck, New York
Respectfully submitted,
__________________
David S.
Fischer
65
Bayview Ave.
Great Neck, NY 11021
(516)
487-5999
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