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A 3rd U.S. Circuit Court of Appeals panel on March 21 pressed lawyers on whether a symbolic religious enclosure strung to a New Jersey town’s utility poles is an unconstitutional mixing of church and state. The Tenafly Eruv Association has appealed a federal district judge’s order upholding Tenafly, N.J.’s refusal to allow the hanging of an “eruv.” Within an eruv’s ambit, Orthodox Jews may push strollers or carry items on the Sabbath, activities otherwise forbidden by Talmudic law. The association believes the plastic strips comprising the eruv are expressive speech, while the borough contends they constitute conduct. U.S. District Judge William Bassler of the District of New Jersey called them symbolic speech but found utility poles are not a public forum. The appeals court had asked both sides to brief whether that classification is correct. Throughout the hour-long argument, 3rd Circuit Judges Thomas Ambro, Richard Nygaard and Jane Roth focused on the First Amendment’s Establishment Clause, since Tenafly explicitly predicated its action on a desire not to attract more Orthodox Jews to the community. “I think your opponent would say the record is replete with many references that council members were concerned that if they allow this, they would violate the Establishment Clause,” Ambro said to association lawyer Robert Sugarman, of New York’s Weil, Gotshal & Manges. Sugarman replied: “The real concern, which is all over this record, is ‘we don’t want Orthodox Jews in this town.’” Ambro asked both sides how the strips can be religious symbols when they look like insulators or other attachments to utility wires. He said that he would be guided by Spence v. Washington, 418 U.S. 405 (1974), which threw out a conviction of a man who affixed a peace symbol to an American flag. The borough’s appellate lawyer, Noah Feldman of New York University School of Law, said after the hearing that the judges’ extensive focus on the Establishment Clause showed they appreciated the dilemma faced by the town council when it voted against permitting the eruv. The eruv remains standing thanks to an earlier ruling by the 3rd Circuit that prevented the borough from removing it pending outcome of the appeal. Another attorney for Tenafly, Bruce Rosen, a partner at Chatham, N.J.’s McCusker, Anselmi, Rosen, Carvelli & Walsh, said the panel’s request of a transcript of the arguments means its review might be a lengthy one. Nathan Lewin, of Washington, D.C.’s Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, also argued for the association. Tenafly lawyer Walter Lesnevich of Lesnevich & Marzano-Lesnevich appeared but did not argue.

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