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A town’s use of a seldom-enforced ordinance to prohibit attachment of a symbolic religious boundary to utility poles may violate the First Amendment’s guarantee of free exercise of religion, the 3rd U.S. Circuit Court of Appeals ruled on Thursday. The judges reversed a lower court’s denial of a preliminary injunction against Tenafly, N.J.’s removal of the boundary — known as an “eruv” — within which Orthodox Jews perform certain actions that would otherwise constitute prohibited labor on the Sabbath. The court took the unusual step of conducting de novo factual findings and ordering a preliminary injunction on its own. Since the First Amendment is “ultimately defined by the facts it is held to embrace,” the appeals court has “a constitutional duty to conduct an independent examination of the record as a whole,” Judge Thomas Ambro wrote for the unanimous panel in Tenafly Eruv Association Inc. v. The Borough of Tenafly, 01-3301. The judges found a likelihood of success on the merits for the plaintiffs’ First Amendment free exercise claims and found the other tests were met for a preliminary injunction, namely, irreparable injury, the balance of hardships and the public interest. Attorneys for Tenafly say they will file a motion for en banc review of the case. Bruce Rosen, of Chatham, N.J.’s McCusker, Anselmi, Rosen, Carvelli & Walsh, says a decision on whether to pursue the case will be made by the mayor and council based on political considerations. The eruv consists of black plastic strips called “lechis” that are attached to the upper portion of utility poles, encircling about a third of the 4.4-square-mile borough. The borough contends that the hangings violate Ordinance 691, enacted in 1954. It says, “No person shall place any sign or advertisement, or other matter upon any pole, tree, curbstone, sidewalk or elsewhere, in any public street or public place, excepting such as may be authorized by this or any other ordinance of the Borough.” The judges found that despite the borough’s insistence it was enforcing a facially neutral ordinance, its past actions made its sincerity suspect. “Indeed, the Borough has tacitly or expressly granted exemptions from the ordinance’s unyielding language for various secular and religious — though never Orthodox Jewish — purposes,” wrote Ambro, who was joined by Judges Richard Nygaard and Jane Roth. The borough has made little effort to remove other items attached to poles, such as lost pet signs, signs offering directions to local churches, Christmas decorations posted by the Chamber of Commerce and ribbons posted by supporters of the local high school during a controversy over regionalization, the court said. “In this case, the plaintiffs are not asking for preferential treatment,” wrote Ambro. “Instead, they ask only that the Borough not invoke an ordinance from which others are effectively exempt to deny plaintiffs access to its utility poles simply because they want to use the poles for a religious purpose.” Local officials say allowing the eruv could force them to accommodate other religious groups wanting to use public property, but the plaintiffs accuse Tenafly of trying to keep Orthodox Jews out of the borough. U.S. District Judge William Bassler of the District of New Jersey ruled that Tenafly did not implicate the First Amendment’s Free Exercise Clause because its ordinance had an objectively neutral effect. Ambro, however, cited a 1993 U.S. Supreme Court ruling that requires courts to look at the real operation of a statute that may be neutral on its face whenever official action targets religious conduct for distinctive treatment. Church of the Lukumi Babalu Aye Inc. v. City of Hialeah, 508 U.S. 520 (1993). As with the ordinance in Lukumi, which targeted the Santeria religion by banning religious killing of animals but exempted certain types of secular killing, Tenafly’s invocation of “often-dormant” Ordinance 691 against Orthodox Jews is “sufficiently suggestive of discriminatory intent” that a strict scrutiny standard must be applied, Ambro wrote. “We believe that the Borough’s selective, discretionary application of Ordinance 691 against the lechis violates the neutrality principle … because it ‘devalues’ Orthodox Jewish reasons for posting items on utility poles by ‘judging them to be of lesser import than nonreligious reasons,’ and thus ‘single[s] out’ the plaintiffs’ religiously motivated conduct for discriminatory treatment,” wrote Ambro. Under Lukumi, he wrote, a law must “advance interests of the highest order and must be narrowly tailored in pursuit of those interests” to pass muster under the Free Exercise Clause. Ambro wrote that it is hard to see how the “unobtrusive” plastic strips that make up the eruv undermine the ordinance’s objective of reducing clutter any more than ribbons or signs do, and targeting the eruv while ignoring house numbers is not narrowly tailored to protect that interest. Walter Lesnevich, the borough attorney in Tenafly, says the 3rd Circuit ruling misstated many facts about the case, particularly the level of enforcement of the law and the use of poles to display house numbers. He says one option the borough would consider is to seek to redress factual issues on remand. Lesnevich, of Lesnevich & Marzano-Lesnevich in Tenafly, says the 3rd Circuit ruling creates a new opportunity for religious activities to be exempted from a variety of laws. For instance, he says, it suggests police could not write parking tickets for those who park illegally while attending church services. “It says if you don’t enforce an ordinance 100 percent, you can never enforce it against a religious group,” he says. “This decision is very difficult for municipal law all over New Jersey.” Getting an en banc review requires the approval of a majority of the members of the 3rd Circuit, which Rosen concedes is a high standard to meet, but he says there is a strong argument to be made that the panel misapplied case law. “I don’t think the cases they used can be used the way they’re using them,” Rosen says. “They stretched them and twisted them and fit them to the panel’s belief that the plaintiffs were wronged. We disagree, and hopefully there are other people on the court that have a more complete view of the situation.” Ronald Chen, who counseled the amicus American Civil Liberties Union-New Jersey in the case, says Ambro’s finding that incomplete enforcement is evidence of discrimination establishes “a very, very significant test” that could help future plaintiffs establish discrimination by governments. Chen is associate dean at Rutgers Law School-Newark.

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