Tenafly Eruv Ass'n, Inc. v. Borough of Tenafly
| Citation | 155 F.Supp.2d 142 |
| Decision Date | 10 August 2001 |
| Docket Number | No. CIV. 00-6051 (WGB).,CIV. 00-6051 (WGB). |
| Parties | TENAFLY ERUV ASSOCIATION, INC., Chaim Book, Yosifa Book, Stefanie Dardick Gotlieb and Stephen Brenner, Plaintiffs, v. The BOROUGH OF TENAFLY, Ann Moscovitz, individually and in her official capacity as Mayor of the Borough of Tenafly, Charles Lipson, Martha Kerge, Richard Wilson, Arthur Peck, John Sullivan, each individually and in their official capacities as Council Members of the Borough of Tenafly, Defendants. |
| Court | U.S. District Court — District of New Jersey |
Richard D. Shapiro, Hellring Lindeman Goldstein & Siegal LLP, Newark, NJ, Robert G. Sugerman, Harris J. Yale, Weil Gotshal & Manges LLP, New York, NY, for Plaintiffs.
Walter A. Lesnevich, Lesnevich & Marzano-Lesnevich Tenafly, NJ, Bruce S. Rosen, McCusker, Anselmi, Rosen, Carvelli & Walsh, P.A. Chatham, NJ, Professor Noah Feldman, New York University School of Law, New York City, for Defendants.
Ronald Chen, J.C. Salyer, American Civil Liberties Union of New Jersey Foundation, Newark, NJ, for Amicus Curiae.
The individual Plaintiffs and the Tenafly Eruv Association, Inc., wish to maintain a ceremonial religious demarcation, known as an eruv, in the Borough of Tenafly's municipal right-of-way. Specifically, Plaintiffs seek permission to maintain plastic strips, known as lechis, on utility poles in the right-of-way. The Borough of Tenafly, by vote of its Borough Council, denied Plaintiffs' request and ordered that the lechis, which had already been attached to the poles without Borough permission, be removed.
Plaintiffs contend that this denial violated their rights to Free Exercise of Religion and to Free Expression under the First Amendment to the Constitution, and their civil rights as protected by 42 U.S.C. §§ 1983 and 1985. Plaintiffs do not raise a claim under the Equal Protection Clause of the Fourteenth Amendment. Plaintiffs do claim that the Borough Council violated their rights under the Fair Housing Act, 42 U.S.C. § 3604(a). Plaintiffs now seek to enjoin Defendants from removing the lechis.
On December 15, 2000 Plaintiffs Tenafly Eruv Association, Inc., Chaim Book, Yosifa Book, Stefanie Dardick Gotlieb, and Stephen Brenner (collectively "TEAI" or "Plaintiffs"), filed a complaint with the Court, alleging violations of the First and Fourteenth Amendments to the United States Constitution, 42 U.S.C. §§ 1983 and 1985, and the Federal Fair Housing Act ("FHA") 42 U.S.C. § 3604.
In addition to damages, Plaintiffs sought entry of an Order to Show Cause why a preliminary injunction should not be issued, and for the imposition of temporary restraints. Plaintiffs sought to preliminarily enjoin Tenafly or anyone acting in concert with the town from removing or otherwise disturbing the lechis that delineate the boundary of the eruv.
After a hearing, the Court entered the Order to Show Cause, and issued a temporary restraining order to prevent interference with or removal of the eruv, pending a preliminary injunction hearing. Pursuant to the Order to Show Cause, a preliminary injunction hearing was scheduled for January 2, 2001.
By consent of the parties, temporary restraints were continued and the preliminary injunction hearing postponed to allow time for limited discovery. Once the parties had completed limited discovery, the Court held an evidentiary hearing, which took place on four separate days during April and May of 2001. After a period for the submission of additional briefing and factual affidavits, the Court heard oral argument on July 19, 2001.
This Opinion is based on evidence developed at the evidentiary hearing and on evidence submitted by affidavit. The Court has also relied upon the exemplary briefs prepared by Plaintiffs, Defendants, and the American Civil Liberties Union ("ACLU")1 of New Jersey. This Opinion contains the Court's findings of fact and conclusions of law pursuant to Rules 52 and 65 of the Federal Rules of Civil Procedure. To the extent that any of the findings of fact might constitute conclusions of law, they are adopted as such. Conversely, to the extent that any conclusions of law constitute findings of fact, they are adopted as such.
An eruv is a ceremonial demarcation of an area, which has its roots in Jewish Law. According to one of Plaintiffs' experts:
the institution of the eruv has been practiced by the Jewish people for over 2,000 years. It is based on principles derived from the Bible which are developed in the Talmud and codified in the Codes of Jewish Law.... [T]here is an entire tractate of the Talmud which deals with the subject.
In the most rudimentary terms, Orthodox Jews believe that Jewish Law bars them from lifting, carrying, or pushing objects (i.e. pushing a wheelchair or carrying an infant) beyond the confines of their homes on the Sabbath. For those who acknowledge its legitimacy, the eruv creates a legal fiction, which converts the public domain to a private domain, solely for purposes of lifting, carrying, or pushing on the Sabbath. This allows those who acknowledge the legitimacy of the eruv to engage in activities on the Sabbath that are otherwise prohibited by Jewish Law.
The Court adopts the following uncontested definition of an eruv:
An eruv, under Jewish law, is an unbroken physical delineation of an area. In tangible terms, it is a defined area created from either natural barriers or artificial means, such as from wires strung across poles. The boundaries of the eruv must resemble a series of doorways. In this case the eruv consists of existing horizontal wires and vertical black rubber coated casings, known as "lechis," which serve as the sides of the symbolic "doorway."
The eruv permits those Orthodox Jews who acknowledge the legitimacy of the eruv under Jewish Law to carry or push objects from their residences, i.e. private property, onto other private or public property and vice versa on the Jewish Sabbath and Yom Kippur. These are activities that Orthodox Jews believe are prohibited by Jewish law on the Sabbath and Yom Kippur absent the legal fiction of a private domain. .)2
Defendants submit that the definition of an eruv is not complete without an additional paragraph:
In order to create an efficacious eruv under Jewish law, persons creating the eruv must rent the enclosed public and private property for valuable consideration from a government official authorized to control the enclosed area.
(Defs.' Proposed Findings of Fact at 7.) While Defendants contend the paragraph describes a "basic fact that is fundamental to the definition of an eruv," (Id.), Plaintiffs object on grounds that the paragraph does not define what an eruv is, and that it is misleading absent extensive additional language. (Shapiro Second Suppl. Cert. ¶ 10.)
Certainly a ceremonial governmental proclamation, conveying some sort of governmental recognition of the area encompassed by an eruv, is a factor in establishing an eruv. This conclusion is supported by Plaintiffs' efforts to obtain such a proclamation first from the Borough of Tenafly, and then from Bergen County. (See Opinion Section I(C)(3), infra.) Nevertheless, Defendants' definition is misleading to the extent it does not make plain the narrow, legally fictive nature of the rental proclamation.
Additional reconciliation of the competing definitions of an eruv is not critical to resolution of the issues pending before the Court. Because the ceremonial proclamation issued in this dispute by Bergen County Executive William P. Schuber on December 15, 1999 is referred to frequently by the parties and is demonstrative of the general nature of such proclamations, the Court reproduces it in its entirety:
The said eruv shall not be valid or binding for any other purpose and this proclamation creates no rights, duties or obligations enforceable in any court whether in law or in equity. This proclamation shall not diminish, increase or affect any other rights granted under New Jersey law, nor shall it be deemed to authorize any physical construction that would otherwise require permission from any local municipal, county or state boards.
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Tenafly Eruv Ass'n, Inc. v. Borough of Tenafly
...activities outside their homes on the Sabbath within an eruv, a ceremonial demarcation of an area. Tenafly Eruv Ass'n, Inc. v. Borough of Tenafly, 155 F.Supp.2d 142, 146 (D.N.J.2001). An eruv extends the space within which pushing and carrying is permitted on the Sabbath beyond the boundari......