Jeffrey Weisenfeld had seen quite enough.
“I found it so outrageous when our civilization is in a struggle with radical Islam, a very relevant threat, in the middle of this there are people worried about a ‘fashtinkada’ eruv which no one will be able to see.”
Weisenfeld, a member of the Hampton Synagogue, was referring to the legal battle that had to be waged to prove that the construction and maintenance of eruvin does not violate the First Amendment to the U.S. Constitution.
An eruv, a symbolic enclosure significant mostly to Orthodox Jews, permits them to push a stroller or carry objects on the Sabbath and on Yom Kippur. The ritual boundary is made by, among other things, attaching lechis, or plastic strips to utility poles.
The law firm of Weil, Gotshal & Manges LLP argued successfully before the U.S. Court of Appeals for the Second Circuit to dismiss a constitutional challenge to the building of the eruv in Westhampton Beach, N.Y. That challenge was brought by a group known as the Jewish People for the Betterment of Westhampton Beach. The group was against the installation of the lechis, and claimed in court filings and in different media outlets that the East End Eruv Association (EEEA), The Village of Westhampton Beach, Verizon New York, Inc., and the Long Island Power Authority (LIPA), would violate the Establishment Clause of the U.S. Constitution by permitting the eruv’s installation.
The U.S. District Court for the Eastern District of New York dismissed the group’s complaint, and the Second Circuit affirmed that judgment.
The Second Circuit emphatically ruled that “It is not a violation of the First Amendment for a utility to contract with a Jewish religious group to allow it to attach strips of wood or plastic to utility poles to create symbolic boundaries for certain members of the Jewish faith.”
The court also found that “no reasonable observer who notices the strips on LIPA utility poles would draw the conclusion that a state actor is thereby endorsing religion.”
Also, the court noted that since private parties are paying for the installation and maintenance of the lechis, there is no risk of “excessive government entanglement with religion.”
The Second Circuit’s decision was made against the backdrop of additional litigation filed by EEEA, as well as Verizon and LIPA, against Southampton, Westhampton Beach and Quogue – all municipalities in the Hamptons. In connection with one of those lawsuits, Judge Kathleen Tomlinson of the U.S. District Court in Central Islip ruled that Westhampton Beach could not prevent the building of an eruv. The judge also ruled that the village could not stop Verizon and LIPA from permitting the pro-eruv group to install the lechis on its utility poles.
The judge added that the law permits Verizon and LIPA to enter into private contracts for the use of their poles. The companies have, in the past, allowed signs promoting events such as St. Patrick’s Day festivities.
David Yolkut, a Teaneck resident, and an associate attorney at Weil, who is working on the case, said the Circuit Court’s decision was a “real victory for religious freedom. The Court completely rejected the argument of the Jewish People for the Betterment of Westhampton Beach. The court made it clear that the lechis were virtually invisible and that they’d be completely indistinguishable from various other items that may appear on the utility poles.”
Yolkut, whose firm took on the case pro bono, said that while the Jewish People for the Betterment of Westhampton Beach had couched their opposition in constitutional terms, he read in the press such comments from their members such as “if you need an eruv, this is not the place,” alongside the comment: “why does the town have to change for certain people?”
Yolkut said that his clients were thrilled about the ruling.
“This is a complete victory for our clients,” he said. “We have a few more steps to go with our case. But this is really significant. The court found that eruvin are constitutionally kosher. It happened in 2002 in Tenafly with a similar decision from the Third Circuit Court of Appeals. We’ve helped create a nice body of law.”
Indeed, the Second Circuit’s January 6 ruling reached the same conclusion as another appellate court, the Third Circuit Court of Appeals, which in 2002 upheld an eruv in Tenafly, N.J. The two circuits cover six states including New York, Connecticut, New Jersey, Delaware, Vermont, Pennsylvania and the Virgin Islands.
Attempts to reach members of the Jewish People for the Betterment of Westhampton Beach were unsuccessful.
Yolkut was also quick to give credit to retired firm partner Robert Sugarman, who led the firm’s efforts in both Tenafly and the Hamptons as well as Yehudah Buchweitz, who argued the appeal.
“We took every argument the other side had on its merit, and showed that they did not hold up to the light of scrutiny,” said Yolkut. “It was exciting to be part of this as an attorney. But also as a religious Jew myself, I was particularly gratified.”
What is left to do?
“There are a few steps we think we have to cover. But this recent ruling eliminates the core defense that the towns have. They can no longer use the Establishment Clause in this case.”
The case did garner national attention when Weisenfeld appeared on a Comedy Central Daily Show segment. The show made ironic light of Westhampton, inferring that it wasn’t necessarily the eruv that the community was worried about, but it was more likely an increase of an Orthodox presence.
“The Jewish community has always contributed greatly to this town,” said Weisenfeld.
The Hampton Synagogue and its spiritual leader Rabbi Marc Schneier have created an Orthodox presence in town.
“The rabbi has built an oasis there,” said Weisenfeld. “We love that it is far enough away from civilization, yet easy enough to get to.”
And it is now inside an eruv.
By Phil Jacobs
