Since it was impossible to repeal the Tenafly Town Council’s decision to forbid the construction of an eruv, the only option was to go to court. But exactly on what grounds could an Eruv Association charge a town that erroneously felt that the utility poles within its jurisdiction were theirs?
Briefly, but not necessarily flatteringly, that’s what lawyers are for. The Tenafly Eruv Association filed suit in federal district court in Newark claiming discrimination and obtained a temporary restraining order preventing the town from dismantling the lechis.
In granting the order, Federal District Judge William G. Bassler declared, ”It is incredible to this court that in the state of New Jersey, where countless towns have permitted the construction of eruvs, that the Borough of Tenafly is taking the position that they cannot be constructed.”
The Association was able to martial the assistance of legal powerhouses. Mr. Dick Shapiro, a partner in the Newark, New Jersey office of Hellring Lindeman Goldstein and Siegal, was active and respected in New Jersey politics. Mr. Shapiro alone would have provided adequate prestige to acquire the court’s esteemed attention, but the Eruv Association had yet another connection (actually several) up its sleeve. One of the Association’s members was a lawyer at the well-known, prestigious Manhattan firm, Weil, Gotshal & Manges.
Through this entrée the door was opened to a prominent partner in the firm, Robert G. Sugarman. Bob Sugarman is a nationally recognized trial lawyer with expertise in First Amendment law – precisely what this lawsuit centered upon. Mr. Sugarman is also an individual with deep involvement in Jewish communal matters, a combatant against all kinds of discrimination and known for his philanthropic activities. His philanthropy extended to this case as well, as his significant legal work was done pro bono.
After a lengthy legal process of hearings and motion practice, the New Jersey District Court honored a Tenafly ordinance dating back to 1954 that prohibited the placing of “any sign or advertisement, or other matter upon any pole… in any public street or public place.” The regulation had nothing to do with eruv viability and was enacted as a matter of decorum. Therefore, the District Court ruled, Tenafly had not displayed bias by enforcing a legitimate and long-standing local law.
The viability of an observant Jewish community in Tenafly was sealed with this court decision – unless it would be appealed. As this would be the Eruv Association’s last chance, they decided that despite their impressive legal representation, it was time to call in the really big cannon, Mr. Nathan Lewin, Orthodox Jewry’s foremost constitutional litigation lawyer. They had been working with Cadillacs, but a Lamborghini wouldn’t hurt.
Finer mechanics notwithstanding, it did not make sense to let the likes of Bob Sugarman go. Therefore, the ingenious idea of having several plaintiffs, each with their own lawyer, was proposed. This would multiply the number of briefs submitted and oral arguments. In effect, it was bolstering the Eruv Association’s case several-fold.
Mr. Lewin disagreed with the strategy of arguing anti-Orthodox bias employed in the trial court. On appeal he made the issue a constitutional violation. The Eruv Association was represented by Bob Sugarman and Nathan Lewin served as counsel.
Mr. Lewin represented the Books (and by implication) other Orthodox Jewish Tenafly residents who were being deprived of their constitutional rights of free exercise of religion. A town that will not allow existing utility poles to be innocuously utilized for a religious purpose, but allows them to be used for secular purposes, such as to display notices, is in violation of the Constitution religious freedom clause.
The First Amendment is best known for its guarantee of the free exercise of religion. But it also includes the establishment clause, which protects against government selectively endorsing one religion over another. In Tenafly, opponents of the eruv argued that its creation would violate the Establishment Clause by favoring the religious practice of Orthodox Jews.
The Tenafly appeal case had now become a textbook classic of Establishment vs. Freedom of Religion; the two clauses in the Bill of Rights that are on a perpetual collision course.
The Supreme Court has prohibited even nondenominational prayers in public schools on the grounds that such allowance gives the appearance of state-sanctioned endorsement of prayer, which is viewed as a religious act.
The First Amendment, however, prohibits governmental actions that infringe on the freedom of religion (known as “The Free Exercise Clause”). This would seem to require the government to make some accommodation for religious needs and yet, the very accommodation that might be necessitated by the Free Exercise clause could arguably constitute an impermissible establishment of religion.
Conversely, the absolute neutrality that is compelled by the Establishment Clause might be an impermissible infringement of Freedom of Religion. For example, if a government office would allow its employees a 15-minute break to conduct a prayer service, would this be an impermissible endorsement of religion or a reasonable accommodation of freedom of religion?
How to unravel this Gordian Knot, law professor Rabbi Yitzchak Breitowitz asserts, has been a recurring problem in American Constitutional law, one that the Supreme Court has addressed many times with only nominal success. This is likely the reason why the Supreme Court – much later in the storyline – refused when they were asked to intervene.
The appeal was heard in the Third Circuit Court of Appeals which had to decide if the town had discriminated against Tenafly’s Orthodox Jews. The plaintiffs (the Eruv Association and several Tenafly residents) asserted that being prevented from constructing an eruv violated their constitutional right to free speech; and that the borough had violated the plaintiffs’ rights to free exercise of religion by discriminating in its enforcement of the ordinance on the basis of religion.
The court rejected the first claim because it found that an eruv is not expressive insofar as it does not communicate any idea or message, but functions only to delineate an area in which certain activities may be performed. The Eruv Association’s second claim was that Tenafly did not enforce the ordinance against placing signs on poles neutrally. It had tolerated similar violations of the ordinance as utility and telephone poles were regularly used to post notices regarding lost dogs, houses for sale, garage sales, or to affix orange ribbons (to promote awareness of self-harm).
The poles were an integral component of local advertising, and so it had been for decades. The one and only time that the town stepped in to reinforce this preexisting law was when residents wished to erect an eruv.
The Eruv Association’s claim that the borough had violated the plaintiffs’ rights to free exercise of religion because a neutral law was only being enforced regarding the plaintiffs’ religiously motivated conduct, prompted a citywide (off-season) Spring Cleaning prior to the hearing. Suddenly any and every sign on the poles was ripped down. It was an inopportune time to lose a dog in Tenafly.
The Eruv Association was victorious in the appellate court and the three-judge panel stated in its decision, “We … hold … that the Borough’s selective enforcement of its ordinance likely violated the [Constitution’s] Free Exercise [of religion] Clause.”
The town of Tenafly was not very gracious in accepting their defeat. They were left with only one legal option, and as slim as it was, they confidently spoke about taking their case to the United States Supreme Court with the casualness one would employ about visiting a doctor for a checkup.
In fact, they hired then-Harvard Law Professor, Noah Feldman. For Professor Feldman, arguing for the eruv’s dismantlement represented a cruel irony. If ever there was a case where the Torah injunction to avoid secular court was patently obvious, this was it. He encouraged compromise but was vilified instead as being anti-eruv. The man showed up in court every day with a Mishnah Brurah! His father was on the board of directors of the Cambridge Eruv Association at the very time that the Tenafly case was being adjudicated. His two courtroom opponents were Bob Sugarman in the district court, his parents’ friend from shul; and Nat Lewin who had walked him hand in hand to shul when he was a little boy. Mr. Lewin gave Noah a big hug after the case was argued.
Alas, the Supreme Court supremely disagreed with the Town of Tenafly’s assurance that they could bring their appeal to the top court in the land, and refused to hear the case. On June 23, 2003 the petition was denied and the case was closed. The Third Circuit Court of Appeals had ruled that the Eruv Association was entitled to use the utility poles for the purpose of an eruv and there remained no legitimate way to obstruct this.
The age-old tragedy of a sore loser is that they never know when to stop whining. The die-hards of Tenafly rewrote the book. Although the law is clear that the loser pays for the court expenses and legal fees, the Town Council tried to paint the Eruv Association – and by implication Orthodox Jewry – with the odious stereotype of being in this from the beginning just for the money.
Aside from how infantile this approach was it was patently false. Perhaps as an outgrowth of this perspective they suggested an inane compromise whereby the eruv would be disassembled every other week. Someone desperately needed to apprise the town fathers that compromises are to be proposed prior to adjudication. After a court decision the loser has no more cards to play and the winner doesn’t need their compromise.
It was as if the Mayor of Tenafly became more adamant in her negativity once there was nothing to do about it. She understood that the public was against the eruv, so she led the crusade. Her choice bytes to the press included, “Those people came and did things illegally.” “We have the right to decide what our town looks like.” Although she led the crusade, there were plenty of other crusaders, including two Town Council members.
There was something mystifying – nay bizarre – in the press’ coverage of the issue. Little Tenafly, comprising .0004 of the US population, was suddenly thrust into the spotlight of national news. All of the three-letter networks, The New York Times, and other media outlets of prominence were affording blanket coverage of the proceedings. During the court cases every parking space was occupied by news vans mounted with satellite dishes and monstrous antennae. The press corps were interviewing everyone who exited the courtroom.
Why is it that James Madison, John Adams and Alexander Hamilton could never muster such constitutional intrigue? The answer is that they were dealing with prosaic issues like establishing a federal government, limiting the power of Congress and debating the right to bear arms, while the Tenafly court case was about the rabbinic requirement to have lechis affixed to erect poles in order to validate rendering a public area into a private domain. And it was a tinderbox that pitted Jew against Jew. The seismic anti-Orthodox paranoia and the manifestation of what New York Times reporter Samuel Friedman termed, “Jew vs. Jew” was a sensational issue that would sell advertising and the media could sink its teeth into and the entire nation could savor the flavor.
The Eruv Association’s actions were now legally sanctioned, but this had not altered the local sentiment. The lechis on the utility poles were subject to vandalism and reports were regularly submitted to the police. As a matter of fact, the rabbi who weekly inspected the validity of the eruv did so, for a while, in a police cruiser for his own safety – such was the animosity festering in town.
The mayor, a Jewish woman with an Orthodox grandchild who had led the fight against the eruv, deliberately provided the police protection and accommodations for eruv inspection to demonstrate that “we don’t like what you did, but we have nothing against you.”
The police on the other hand, were not interested in public relations. They were very cooperative, respectful and wished to do their job of ensuring public safety. After the court ruling, if someone had wished to damage a lechi, the city would have to prosecute them for criminal trespassing. Out of gratitude, Tenafly’s Orthodox Jews make a yearly visit to the police station with baked goods and other delicacies.
The fight for the Tenafly eruv was a hard-fought battle against enemies one would not have imagined.