THE BOUNDARY BETWEEN NEUTRALITY AND HOSTILITY TOWARD RELIGION:
The Recent Third Circuit Decision About The Tenafly Eruv

By SHERRY F. COLB
Wednesday, Nov. 06, 2002

On October 24, in Tenafly Eruv Association v. Borough of Tenafly, the United States Court of Appeals for the Third Circuit ordered a trial court to issue a preliminary injunction against the Borough of Tenafly on the ground that it had likely violated the Free Exercise Clause of the First Amendment.

Specifically, Tenafly's Borough Council had voted to force the Tenafly Eruv Association, an Orthodox Jewish group, to remove religious materials that it had placed on utility poles. But the Borough had not forced other groups who had attached things to utility poles to do the same.

The decision of the Court of Appeals represents a straightforward application of Employment Div. v. Smith, a leading Supreme Court decision interpreting the Free Exercise Clause. Smith held that neutral laws may be applied to religious, as well as secular groups. It went on to say, however, that enforcing prohibitions or denying benefits selectively against religious groups or a particular religious group violates the Free Exercise Clause. And that was exactly what had happened in Tenafly: The evidence showed the Borough had enforced the law selectively against the Eruv Association.

Beyond the obviously correct decision, the specific facts of the Tenafly case raise an important - and unaddressed - question about what the government might be required to do for a religious group when there is no comparable demand that a secular group might make.

The Religious Significance of the Eruv

Orthodox Jews believe that on Saturday, the Sabbath, God requires Jews to refrain from a long list of activities, including carrying things and pushing strollers and wheelchairs in public areas. If strictly observed, this requirement would preclude families with small children from bringing those children to synagogue on the Sabbath and would also prevent family members of the disabled from pushing a wheelchair to Temple. A recognized loophole that permits Orthodox communities to attend synagogue on the Sabbath without religious impediment is the eruv.

An eruv is a surrounding or border that somehow demarcates what lies within it as distinct from what remains outside. An eruv can be a wall or something far less obtrusive such as a set of pre-existing adjacent utility poles and thin plastic rods attached to the poles. These rods can serve as surrogates for doorposts ("lechis," or vertical posts) that would render the continuous utility poles a symbolic wall or border. The idea is to turn what was previously public domain into private domain, at a symbolic level.

The eruv provides a ritual boundary within which Orthodox Jews may carry things (and persons unable to walk) as well as to push wheelchairs and strollers to the same extent as they could inside their own homes, where carrying is permissible.

Targeting a Religious Group

For obvious reasons, the ability to erect an eruv around an area increases the desirability of that area for the Orthodox. Knowing this, the Borough of Tenafly voted to force the Orthodox to remove the lechis of their eruv from the Borough's utility poles. The Eruv Association then sued for a court order protecting their eruv and permitting the lechis to remain in place.

The Borough, in response, defended its actions by arguing that a neutral Tenafly ordinance prohibits anyone from placing things on a utility pole. Under Employment Div. v. Smith, as noted above, a neutral law may legally be enforced against a religious group without violating the Free Exercise of Religion.

However, the Borough of Tenafly had not enforced the ordinance against numerous other violators, including homeowners who had displayed their house numbers, and churches that had posted directional signs. Under Smith, a government actor violates the Free Exercise of Religion if it chooses to enforce the law selectively against a religious group.

Applying these principles, the Court of Appeals correctly ruled (at least for purposes of granting a preliminary injunction) that enforcement of the ordinance against the Orthodox would violate their freedom of religion.

Additional Facts Raising an Interesting, Separate Question

Before the Orthodox could be ordered to remove lechis from utility poles, of course, the lechis had to get up there in the first place. And in this preliminary event, there is an important story to be told as well.

For an eruv to be valid under Orthodox Jewish law, a civil official with jurisdiction over the circumscribed area must issue a ceremonial proclamation "renting" the area for a nominal fee (one dollar, for example). It would not have been sufficient, in other words, for the lechis simply to be attached to the utility poles, even if no official insisted that they be taken down.

In the case of the Tenafly eruv, the Orthodox community went to the Mayor, who brought the matter to the Borough Council, the legislative body of Tenafly, seeking the ceremonial proclamation. The Council deliberated, with many of those present expressing vehement opposition to the idea.

A number of members, for example, stated the fear that an eruv would motivate Orthodox Jews to move to Tenafly. One member in particular worried that Orthodoxy would "take over" Tenafly, while another voiced a "serious concern" that "Ultra-Orthodox" Jews would "stone[] cars that drive down the streets on the Sabbath."

Following this discussion, the Council decided to demand a formal application from the Orthodox before deciding what to do. The mayor conveyed the demand for a formal application to representatives of the Orthodox community, but the Mayor added that the Council was unlikely to grant such a request.

Rather than formally apply and be further frustrated, the Orthodox therefore sought the ceremonial proclamation from a Bergen County Executive whose jurisdiction included Tenafly, and the County Executive granted the request.

Having thus obtained the religiously necessary authorization, the community went on to set up its eruv.

A Hypothetical Scenario: Refusal to Grant a Proclamation Only a Religious Group Might Need

Consider what would have happened if the Bergen County Executive had not been available or willing to grant the requested proclamation. Given the tenor of the Council's discussion (and its subsequent decision to order the lechis taken down), it almost certainly would have denied any formal application for a ceremonial proclamation.

Without such a proclamation, moreover, the Orthodox of Tenafly would not have been able to enjoy the benefits of their eruv, regardless of whether anyone interfered with the physical presence of the lechis. What would the law provide under these circumstances?

Because the Borough could honestly say that it did not issue a proclamation for anyone to use the utility poles, its refusal to do so for the Orthodox would not undermine the professed neutrality of the law and its enforcement. A court accordingly could not order the Borough of Tenafly to provide the religiously required proclamation. Under Smith, neutrality toward religion is all that the First Amendment requires.

It is difficult to imagine an example outside the context of religion in which the government would be called upon to make a ceremonial proclamation permitting a person or group to occupy an area that is already available to the public. Perhaps a person suffering from obsessive compulsive disorder (OCD) might feel unable to walk around the neighborhood in the absence of a ceremonial handshake. If the City of Tenafly granted the handshake, then Smith would appear to dictate that the same courtesy be extended to the Orthodox.

But unless an unlikely scenario like the OCD story were to present itself, a Tenafly Borough Council hostile to the Orthodox could, with impunity, effectively preclude the creation of a religiously valid eruv by denying the necessary ceremonial proclamation.

One could argue, however, that refusing the formal permission is, for all intents and purposes, the moral equivalent of enforcing the ordinance against the Orthodox (and against no one else). So might it not violate Smith after all - just as it was a violation to force the Orthodox, and no one else, to take down materials from utility poles?

Should the Law Intervene If Such a Proclamation Were To Be Withheld?

There may nonetheless be little that the law can or should do under these circumstances. After all, the accommodation that the Orthodox were requesting was not merely a matter of permitting the exercise of religion. Rather, they had called for a government official to participate (however nominally) in that exercise, by carrying out a legally meaningless act - to the extent that the relevant law consists of secular statutes - to help achieve conformity with Orthodox Jewish requirements.

As it turned out, of course, a Bergen County official was willing to facilitate the religious validity of the Tenafly eruv, and the Tenafly Borough Council was only asked to leave the eruv alone rather than to act affirmatively to help the Orthodox. Unfortunately, however, the Borough's animosity toward the Orthodox precipitated the unusual step of ordering them to remove the lechis.

Ironically, it appeared therefore to have been the Borough's animus toward the Orthodox that ultimately empowered a federal court to announce that the First Amendment might protect the eruv from interference. The lesson in all this may be that true hostility to a group will eventually manifest itself in ways that are legally actionable. And for that lesson, we have the intolerance of the Tenafly Borough Council to thank.


Sherry F. Colb is a professor at Rutgers Law School.

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