Although there are hundreds of eruvs in communities across the United States, including one circling the Capitol and Supreme Court in Washington, only in New York and New Jersey has their construction resulted in legal action by opponents.
Those cases generally have not gone well for the governing bodies and opponents, who have been turned aside by courts often citing the First Amendment’s Establishment Clause, which prohibits the government from not only establishing an official religion but also forbids government actions that disproportionately favor one religion over another. Court rulings have found that an eruv is not a religious symbol, but instead is a reasonable accommodation of religion, thereby allowing free exercise of religion.
The cases in the tony Hamptons and some Bergen County communities—including Tenafly, Mahwah, Montvale and Upper Saddle River—and their at times legal-precedent-setting outcomes were discussed by two attorneys involved in the cases on March 9 during a virtual Touro Talks program co-sponsored with the Touro Law Institute at the Touro Law Center.
Often marked by antisemitism, and in some cases opposition by non-Orthodox Jews, the eruv legal battles focused on unfounded fears Orthodox Jews would take over the community and impose their lifestyle on other residents or from secular Jews who didn’t want to be associated with that lifestyle.
Yehudah L. Buchweitz, an attorney with the global law firm of Weil, Gotshal & Manges who specializes in civil and constitutional rights and is known for his work in combating religious discrimination and securing civil rights for religious organizations, litigated on the cases. He stressed their importance, stating bluntly, “I remember thinking if we screwed this up we are not going to have any eruvs in the United States.”
One of the milestones in the years of legal wrangling proved to be the 2017 decision by the New Jersey Attorney General’s office to file suit against Mahwah charging that ordinances forcing the removal of PVC pipes used for markers of the eruv were a thinly veiled attempt to prevent fervently Orthodox Jews from neighboring Rockland County from coming to the community. The suit likened the move to bigoted attempts to keep Blacks out of White neighborhoods.
Buchweitz called the state’s move “fabulous,” adding the suit was “a game changer” in the eruv fight.
For some communities the eruv brawl came at a steep cost. One of the earliest confrontations was in Tenafly, where an eruv was first constructed in 2000, and after years of litigation ended up with the town agreeing to pay the Tenafly Eruv Association $325,000 in legal costs. Robert G. Sugarman, a retired partner at Weil, Gotshal & Manges was involved in the case, said it and fights in the Hamptons demonstrated how unfounded peoples’ fears had been.
“Now that I think back 15 years a go to Tenafly and later the Hamptons, they haven’t changed one bit,” he said despite having an eruv. “This was all pollical and showed what members of boards and borough councils value more than anything else is being elected.”
If, as in the Tenafly case, municipal officials feel there is strong opposition in the community they at times take the easy way out, said Sugarman, and oppose it, even though they know the courts will overturn that decision. “Then they say, ‘We lost. There’s nothing we can do.’”
Sugarman used Tenafly as a case in point. The Tenafly Eruv Association received the required permission for putting up the lechis on utility poles from a governing official, in this case the Bergen County supervisor, and Verizon and Cablevision volunteered to affix the lechis to the poles.
Sugarman, a past chair of the Anti-Defamation League and Conference of Major American Jewish Organizations, said he had been approached by another associate at his firm who lived in Tenafly and asked to have the case taken on pro bono. He attended the second of two council meetings on the issue in late 2000, along with many supporters and opponents, where the council ultimately voted 5-0 against the eruv. Sugarman was shocked at some comments, noting, “If I had closed my eyes and substituted Blacks for Jews I think I would be in Selma, Alabama” during the Civil Rights era.
Buchweitz recalled similar utterances at hearings elsewhere where Jews were referred to as “scum” and that “they were trying to annex land like they’re doing in occupied Palestine.”
He and Sugarman served pro bono on the Hampton cases, representing the East End Eruv Association, which proposed an eruv in 2008 on behalf of congregants of the Hampton Synagogue in Westhampton Beach. It finally ended in 2016 when the Village of Quogue dropped its fight, the last of the three involved municipalities to do so. Buchweitz said the drawn-out case spawned five separate litigations, thousands of pages of documents and three different rulings by state and federal courts, all in favor of the eruv association.
However, it was the ruling by the state courts and Second Circuit that set a significant legal precedent for establishment of future eruvs by ruling that municipalities have an “affirmative obligation” to reasonably accommodate an eruv under the First Amendment.
“It doesn’t mean you have to approve every religious accommodation, but in this case we’re talking about something so unobtrusive, a plastic piece covering a wire, that it was undetectable to drivers,” explained Buchweitz.
Despite racking up what would have been millions in legal fees, Sugarman said the pair never regretted their involvement in the groundbreaking cases. “Whether it is young families who want to push their little kids to shul or whether it is another person who needs a wheelchair to go, the greatest pleasure I have is the knowledge we really changed the lives of Orthodox Jews, so it was all worth it.”
By Debra Rubin
