After local governments in the Hamptons rejected a proposal to construct an eruv, the East End Eruv Association filed a lawsuit in federal court this past week alleging religious discrimination and a violation of the constitutional rights of observant Jewish residents. (Click here for the story, and here for a copy of the complaint.) Although local governments are often accommodating of eruvin, this is certainly not the first time a group seeking to construct an eruv has been met with resistance. (Click here for an informative blog about eruvin, including numerous examples of eruvin in the news.)
Perhaps the most notable American legal case involving an eruv is Tenafly Eruv Association, Inc. v. Borough of Tenafly, 309 F.3d 144 (3d Cir. 2002), cert. denied, 539 U.S. 942 (2003). In that case, a Tenafly ordinance prohibited the placing of “any sign or advertisement, or other matter upon any pole . . . in any public street or public place.” The Eruv Association, unaware of this ordinance, began to construct an eruv by affixing lechis (thin strips of plastic) on telephone poles within the borders of Tenafly. After the borough ordered that the lechis be removed due to the ordinance, the Eruv Association sued for an injunction that would prevent Tenafly from interfering with the eruv.
The plaintiffs (the Eruv Association and several Tenafly residents) asserted two claims: (1) preventing them from constructing an eruv violated their constitutional right to free speech; and (2) the borough violated the plaintiffs’ rights to free exercise of religion by discriminating in its enforcement of the ordinance on the basis of religion. The court rejected the first claim because it found that an eruv is not expressive. It does not communicate any idea or message, but rather delineates an area in which certain activities are permitted. However, the Eruv Association’s second claim was successful. The court found that Tenafly did not enforce the ordinance neutrally. It had tolerated similar violations of the ordinance (such as house numbers nailed to poles), but discriminated “against the plaintiffs’ religiously motivated conduct.” For this reason, the Third Circuit granted the injunction and banned the borough from removing the lechis.
Although the Tenafly decision is not binding on a federal court in NY, the court in the East End Eruv Association case will likely consider it in its determination. Either way, it will be interesting to see how this case develops, especially because the attorney who represented the Tenafly Eruv Association, Robert Sugarman of Weil, Gotshal & Manges, is also representing the East End Eruv Association in this case.