N.J. town may remove Jewish ritual enclosure, rules federal judge
By The Associated Press
08.10.01
NEWARK, N.J. — A Bergen County town can remove a ritual enclosure erected by Orthodox Jews because parts of the boundary were erected on public property, a federal judge ruled yesterday.
In what could be a significant decision balancing the First Amendment tenets of religious freedom, free speech and separation of church and state, U.S. District Judge William G. Bassler said utility poles and rights of way are not public forums.
As a result, he found that the Tenafly Borough Council was properly concerned that public property "not be permanently allocated to a religious purpose."
"Since the Borough Council's decision was narrowly tailored to prohibit only conduct that might generate the appearance of an entanglement between church and state, no constitutional infirmities resulted, and there is no cause for a court to second guess such a decision," Bassler wrote in a 114-page opinion issued late yesterday afternoon.
Tenafly lawyer Bruce S. Rosen said the decision pleased the council, which voted 5-0 last December against the enclosure, called an eruv. That prompted a lawsuit by the Tenafly Eruv Association.
Bassler had barred removal so he could hear testimony during the past several months.
"This is not meant to be vindictive. This is not meant to be anti-Orthodox," Rosen said, noting that two council members and Mayor Ann Moscovitz are Jewish, but not Orthodox.
An eruv is comprised of wires, poles, and natural fixtures to create a symbolic "fence" extending the domain of Orthodox homes.
Its principal benefit is to allow women to push baby strollers in the street while walking to synagogue, and to allow men to carry personal items with them — things normally forbidden on the Sabbath.
Borough attorney Walter A. Lesnevich said the eruv could remain intact for this Sabbath, which runs from sundown Friday to sundown Saturday, but would be removed Monday unless the Tenafly Eruv Association obtains a court order.
Eruv association lawyer Robert G. Sugarman said the group would ask Bassler for a stay that would allow the eruv to remain intact while the group appealed his decision to the 3rd U.S. Circuit Court of Appeals.
Sugarman said he could not discuss the ruling until he studied it.
The ruling does not appear to issue a blanket ban on eruvs, which are found in Orthodox enclaves throughout the nation.
Even so, it disappointed Charles "Shai" Goldstein, director of the New Jersey office of the Anti-Defamation League.
"Courts have overwhelmingly ruled that an eruv is a religious accommodation, not a religious symbol that could potentially interfere with separation of church and state," Goldstein said.
The American Civil Liberties Union, which entered the case as a friend of the court, maintained that utility poles and rights of way in Tenafly were not public forums, said Edward Barocas, legal director of the New Jersey chapter.
As such, it would violate separation of church and state to allow just one religious group use of the poles, he said.
"If the eruv is placed in a public forum, for example, if telephone poles are considered public forums in a particular town and used for free-speech purposes, then the ACLU's position would be that the religious group would have the freedom to use that particular forum as well."