In the year 1999, a group of residents in the town of Tenafly contacted Verizon, the owner of telephone poles in the Bergen County, New Jersey, village to inquire about erecting thin wires connecting its poles around an 8-mile perimeter of the borough. Verizon was not opposed. The wires went up, they were barely visible, and structurally they did not affect any private properties. And then all hell broke loose. Of course, what we are referring to is an eruv.
Almost immediately another group of residents had found out about the plan and complained to the town council. The council held a special meeting regarding the eruv and voted 5-0 ordering the Tenafly Eruv Association to take down their string. The council’s findings were that an eruv was a special accommodation, creating “a community within a community,” and a violation of the separation of church and state. That was just its public findings. The hearings included some testimony of local residents decrying the construction as ruining the town. Some residents testified that the eruv would allow “those people” to move in—and it would change the character of the town. The eruv would need to come down in order to save the town from being overrun by “them.”
Tenafly, like almost all communities, has zoning laws. Among its regulations it is illegal to hang anything from the poles within the village. Nothing at all. Except in the past, the village has made exceptions. In the past, Tenafly has allowed on its poles signs for garage sales, missing pets, help wanted ads, signs for street fairs, local events and arrows pointing to churches. Also, on an annual basis, utility poles were used as a base for Christmas decorations—all in violation of the town’s zoning ordinances—and all without objection of the town council, or the local population.
The eruv association sued. They argued that the town was selectively enforcing its rules. Besides, the nation had recently passed the Religious Freedom Restoration Act, which specifically prohibits governments from burdening the practice of religion. Tenafly’s eruv was a clear test cast on its application in that its zoning rules would make it nearly impossible for most Orthodox Jews to live or practice their religion freely in Tenafly.
After a district court ruled against the town, Tenafly did not take it well and appealed to the third Circuit Court of Appeals in Philadelphia. They lost again. Among the appellate court’s findings: an eruv is an accommodation of religious practice that allows observant Jews to practice their religion with minimal intrusion on other residents. As such, an eruv cannot be banned under a town’s zoning laws but must be permitted. The court also ordered the village of Tenafly to pay for their Jewish community’s legal costs: $325,000 in all. Their attorney was Bruce Rosen. He has now been retained by the Township of Upper Saddle River, which has the Bergen-Rockland Eruv Association as the subject of the latest dispute—and in the crosshairs of the town of Mahwah, a town 20 miles away from Tenafly. Barry Honig, a resident of Tenafly, has warned the town of Mahwah to use his town’s experience as a cautionary tale. He tells Mahwah to find a way to make peace—and live with the eruv before it’s too late.
There are 22 communities in New Jersey that currently have eruvin erected. Most with little fanfare or controversy. Around the world, cosmopolitan cities like Paris, London, Los Angeles, and Miami have eruvin. New York City has several.
The law regarding religious accommodation is rooted in the First Amendment free exercise clause: that is that the government will make no law that restricts the free exercise of religion. The tension comes from a separate clause of the Constitution, referred to as the Establishment Clause: Government shall not establish a religion. Mahwah has interpreted this clause, as Tenafly did before them, to mean that it is illegal for the government to permit an eruv since it gives tacit recognition to religious practice on public land. Here’s the problem, though: Governments do it all the time and they cannot discriminate. If you use utility poles for Christmas decorations on an annual basis you cannot turn around and say unobtrusive string creates a municipal endorsement of religious practice because it impedes on no one’s right, but removing the wires has the effect of discriminating against observant Jews.
And that is where the eruv zoning laws fail. The RFRA was specifically passed so as to allow religious expression with the least possible amount of government intrusion into religious practice when the practice is not hurting anyone. The impetus for passing the RFRA was a case that came to the Supreme Court involving Native Americans who were prosecuted for using a hallucinogenic drug, Peyote, as part of a religious rite. Although the Indian group kept to themselves and were not bothering anyone, they were prosecuted under Federal Drug Laws and convicted of a felony crime. Native Americans and their advocates were appalled, and so were some members of Congress. So much so that during the Clinton administration the RFRA was overwhelmingly passed with bipartisan support.
The crux of the RFRA is that in order for a law that affects a religious practice to be enforced, the legislative body must show a compelling reason for the law. In addition, they must show that the enforcement procedure is the least intrusive way to effect the compelling reason. This is referred to in law as “strict scrutiny.” It requires the most exacting standards for not only laws restricting religious practice, but also procedures to make sure religious practices are not unreasonably burdened.
The effect of the RFRA would mean that a state could ban a religion that requires it from sacrificing babies to appease a deity, but at the same time it could not pass a zoning regulation that prohibits a house of worship from opening because it does not have enough parking spaces. Alternatively, it cannot stop a religious organization from contracting with a local utility to place pieces of plastic on its pole and string some wires across its poles if the utility is willing to allow them access to their property.
Barry Honig has warned Mahwah to make peace with the Eruv Association. The fight they are engaging in is costly and futile. He has added another observation: the addition of an eruv really has not changed the character of the town. Despite her initial fears, Tenafly’s mayor at the time, Ann Moscovitz, agrees. She recently said, “In the years since the eruv controversy erupted, not much has changed. “It’s still a beautiful town,” observed Moscovitz. The school district remains excellent, and its budgets pass annually. Several Orthodox residents have served on the council and in other volunteer capacities.”
That is not only true in Tenafly, but in the vast majority of the 22 communities across New Jersey that have eruvin. In truth, the eruvin are inclusive in that they allow for a more diverse society. They permit Orthodox Jews to fully engage in communities and add to the culture that exists—whether it is in Tenafly, Passaic, West Orange, Livingston, Maplewood, Fair Lawn or Teaneck.
Even in Tenafly, most of the critics admit now that they overreacted. Former president of the Eruv Association Erez Gottlieb said, “Tenafly serves as an example of how fears can be amplified before they have a chance to be actualized.” A former town council member, Joseph Salvatore, agrees. He recently said, “A lot of the fears never materialized…. It was much ado about nothing.”
By Stephen Loeb
Stephen R. Loeb is an attorney licensed in New Jersey and New York. He can be reached by email at [email protected] or at (212) 766-5268.
