The Supreme Court’s recent decisions concerning gay rights and affirmative action, overshadowed its refusal to accept for review a federal appeals court decision that had required the township of Tenafly, New Jersey to allow the erecting of an eruv using telephone poles. Yet that development is significant nonetheless.
There have been previous instances where courts have dismissed claims that municipal approval for eruvim, as an accommodation to Observant Jews, violated the constitutional requirement of separation between church and state. But the appeals court decision appears to be the first time that a federal court has required such approval on constitutional grounds. The appeals court had held that since the town of Tenafly routinely allows telephone poles to be used for secular displays and adornment, denying their availability for a religious use constitutes discrimination.
Inasmuch as public property is widely made available for private use of various sorts, the appeals court decision is expected to open the doors for eruvim across the country.
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