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Religious symbols on public property continue to test the outer boundaries of the First Amendment’s establishment clause. In the ’90s came a multitude of creche cases, ACLU-sponsored challenges to Christmas displays on municipal greens. Towns generally lost. In the new decade, the targets of choice may be “eruvs,” lines strung on utility poles to demarcate a residential area as an extension of a synagogue. And this time, it’s the towns that are on the attack. In a test case attracting nationwide attention, the Bergen County borough of Tenafly, N.J., is arguing that eruvs cross the line between church and state. Last summer, an Orthodox group put up a series of plastic cords known as lehis on telephone poles around Tenafly to create an eruv. Under Jewish law, observant Jews who are within an eruv may push baby carriages or carry items to the synagogue on the Sabbath, work that is otherwise forbidden. Borough Attorney Walter Lesnevich says Tenafly has many Jewish residents, including several members of the borough council, but most Jews in the municipality are Reform, rather than Orthodox. But the affidavit of Chaim Book, treasurer of the Tenafly Eruv Association, said that at a Tenafly council meeting many local residents said they did not want the eruv because it would encourage Orthodox Jews to move to the town. The Tenafly Eruv Association says it got permission from Bell Atlantic, now Verizon, to add the lehis to the phone company’s poles. The association also asked for permission from the borough council, but when the eruv was discussed at a council meeting on July 9, 1999, residents and council members expressed opposition. The association then approached Bergen County Executive William Schuber, who issued a ceremonial proclamation allowing construction of the eruv on Dec. 15, 1999. Book’s affidavit said Jewish law requires an official proclamation before an eruv can be built, but he was unaware of any secular law requirement for government approval. The affidavit said that after obtaining a required insurance policy, the eruv association signed an agreement with the phone company to allow the eruv to go up. Verizon spokeswoman Soraya Rodriguez says company policy is not to allow construction of an eruv on its poles if the town government has not given its approval to the project. She said she had no specific information on any agreement reached in the Tenafly case. The eruv was completed last September, and when the town ordered it taken down, the association obtained an injunction from U.S. District Judge William Bassler allowing it to stay up. The suit by the Tenafly Eruv Association and four of its members claims the town is interfering with the plaintiffs’ constitutional right to practice their religion under the First and Fourteenth amendments. The plaintiffs also claim their rights were denied under 42 U.S.C. 1983, 1985 and that borough officials conspired to make dwellings unavailable to Orthodox home buyers in violation of the federal Fair Housing Act, 42 U.S.C. 3604, which prohibits discrimination in the sale or rental of housing. Although the eruv association says it previously believed its project did not require borough approval, it does not contest the town’s jurisdiction over utility poles, says Robert Sugarman of the New York firm of Weil, Gotshal & Manges. “In broad outlines, the plaintiffs claim the action in the borough council in rejecting the application for the eruv was in violation of the First Amendment of the Constitution,” says Sugarman. He says there’s no adequate basis for the actions of the council. “It’s not as if there’s a safety hazard or a traffic hazard or a fiscal problem,” he says. “Since there’s no basis, let alone compelling basis, for the borough’s action, it just doesn’t pass constitutional muster.” Sugarman’s local counsel is Richard Shapiro, of Newark, N.J.’s Hellring Lindeman Goldstein & Siegal. The borough hasn’t filed an answer to the charges, but its lawyer, Lesnevich, says it doesn’t want the eruv because it could result in a concentration of Orthodox Jews in the portion of town encircled by the eruv, rather than dispersal throughout the town. The borough also opposes the eruv because it benefits only one group, and approval might create obligations to other religious groups wanting to make use of public lands, he says. One other published case in New Jersey covers eruvs. In ACLU of New Jersey v. City of Long Branch, 670 F. Supp. 1293, (D. N.J. 1987), the ACLU lodged an establishment clause challenge to the Long Branch city council’s decision to authorize an eruv, saying it constituted placement of “permanent symbols” of the Jewish religion on public property. But the U.S. District Court found in favor of the city. In an opinion by Judge Anne Thompson, the court used the three-part test of Lemon v. Kurtzman, 403 U.S. 602, 29 L. Ed. 2d 745, 91 S. Ct. 2105 (1971), namely that the state action must have a secular purpose, must have a principal effect that does not advance religion, and must not foster excessive entanglement with religion. Lesnevich says he will not rely on the Long Branch decision but considers it the counterpart of the Tenafly case. He says: “ Long Branch may grant an eruv; we say this case does not hold that Long Branch must grant an eruv. The Long Branch case says they’re not constitutionally prohibited from granting an eruv. It’s, in effect, a logical extension.” A holding in an eruv case similar to the one in Long Branch came from the New York State Supreme Court in Smith v. Community Board No. 14, 128 Misc. 2d 944, 491 N.Y.S. 2d 584 (1985). It found that a New York City community board’s approval of an eruv did not violate the establishment clause but was a valid accommodation to a religious practice and did not constitute a government entanglement with religion. A hearing by Bassler on whether to continue the injunction has been rescheduled twice. Lesnevich says the borough expects the ACLU of New Jersey to join the defense as an amicus, but the group’s executive director, Deborah Jacobs, says it’s still under study. Ronald Chen, associate dean of Rutgers-Newark School of Law, who has advised the ACLU on the Tenafly matter, says such cases are fact-intensive. Much depends on the agreement between the borough and the phone company on the right to erect the poles, he says. With many sitting federal judges appointed by Republican presidents sympathetic to issues like school prayer, “there’s been greater leeway given to groups that want to establish a religious presence than in the past,” says Lawrence Lustberg, a partner at Gibbons, Del Deo, Dolan, Griffinger & Vecchione in Newark who takes many constitutional cases. But Lustberg warns that the Lemon test on church-state separation that was applied in the Long Branch case is out of favor with some members of the supreme court, who find it too malleable. Anthony Picarello, a staff attorney for the Becket Fund for Religious Freedom in Washington, says the central question in eruv controversies is accommodation versus endorsement. The group combats what it sees as government threats to religious rights. “When the government accommodates religion, the government does not violate the establishment clause,” Picarello says. “The current establishment clause prohibits endorsement. Accommodation, on the other hand, is exalted,” he says.

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