In a brief filed with the United States Court of Appeals in the crucial case involving an eruv in Tenafly, New Jersey, Nathan Lewin, Orthodox Jewry's foremost constitutional litigation lawyer, presented an important argument that will, if successful, insulate all eruvim in the United States against similar constitutional attack. The Tenafly Council ordered Cablevision to remove 183 plastic strips that the Eruv Association had attached to utility poles to be used as “lechis,” which are necessary to complete an eruv. Many reportedly had reason to believe, from the debate that had preceded the order of removal, that Tenafly was simply trying to keep Orthodox Jews out of the town. But all the Council members swore that they had no anti-Orthodox bias ? which would have meant that their action against the eruv was a violation of the Constitution ? and the federal judge believed them.
The Eruv Association is appealing the decision, mainly on the ground that the judge's conclusion as to the issue of the Council-members' motives was wrong. That is a difficult argument to make because appellate courts usually accept “findings of fact” by trial judges. However, Mr. Lewin ? who represents attorney Chaim Book, a plaintiff in the case and the primary force behind the establishment of the eruv ? has presented an ingenious argument that does not depend on whether the Councilmembers lied under oath.
There are thousands of identical plastic strips on utility poles in Tenafly that are used to transmit telephone calls and cable television. If those plastic strips are allowed and even encouraged by Tenafly, how can the Town refuse to allow 183 of the same plastic strips only because they are part of an eruv? Prohibiting the innocuous act of attaching plastic strips to utility poles when they are part of a religious observance while encouraging plastic strips useful for television reception is, according to Mr. Lewin, what violates the Constitution, not the allegedly bad motives of Tenafly's elected officials. And, says Mr. Lewin, the plastic strips are also “symbolic religious speech.” Since Tenafly has allowed orange ribbons on its poles to protest a public-school policy and for “lost-dog” notices, it may not discriminate against a symbol of the eruv.
These sorts of creative arguments ? which appear to us as eminently correct and which should carry the day for the Tenafly eruv ? are what have made Nat Lewin renowned in the American Orthodox Jewish community.Editorial Board