309 F.3d 144 (3rd Cir. 2002), 01-3301, Tenafly Eruv Ass'n Inc. v. Borough of Tenafly

Docket Nº:01-3301.
Citation:309 F.3d 144
Party Name:TENAFLY ERUV ASSOCIATION, INC.; Chaim Book; Yosifa Book; Stephanie Dardick Gottlieb; Stephen Brenner, Appellants, v. THE BOROUGH OF TENAFLY; Ann Moscovitz, individually and in her official capacity as Mayor of the Borough of Tenafly; Charles Lipson; Martha B Kerge; Richard Wilson; Arthur Peck; John T. Sullivan, each individually and in their offici
Case Date:October 24, 2002
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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309 F.3d 144 (3rd Cir. 2002)

TENAFLY ERUV ASSOCIATION, INC.; Chaim Book; Yosifa Book; Stephanie Dardick Gottlieb; Stephen Brenner, Appellants,


THE BOROUGH OF TENAFLY; Ann Moscovitz, individually and in her official capacity as Mayor of the Borough of Tenafly; Charles Lipson; Martha B Kerge; Richard Wilson; Arthur Peck; John T. Sullivan, each individually and in their official capacities as Council Members of the Borough of Tenafly.

No. 01-3301.

United States Court of Appeals, Third Circuit

October 24, 2002

        Argued March 21, 2002.

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        Robert G. Sugarman (Argued), Harris J. Yale, Craig L. Lowenthal, Weil, Gotshal & Manges, New York, NY, Richard D. Shapiro, Hellring, Lindeman, Goldstein & Siegal, Newark, NJ, Nathan Lewin (Argued),

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Alyza D. Lewin, Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, Washington, DC, for Appellants.

        Bruce S. Rosen, McCusker, Anselmi, Rosen, Carvelli & Walsh, Chatham, NJ, Walter A. Lesnevich, Lesnevich & Marzano-Lesnevich, Tenafly, NJ, Noah R. Feldman (Argued), New York University Law School, New York, NY, for Appellees.

        Kevin J. Hasson, Anthony R. Picarello, Jr., Roman P. Storzer, Derek L. Gaubatz, The Becket Fund for Religious Liberty, Washington, DC, Nathan J. Diament, Union of Orthodox Jewish Congregations, Washington, DC, Abba Cohen, Agudath Israel of America, Washington, DC, David Zwiebel, Mordechai Biser, Agudath Israel of America, New York, NY, Ronald K. Chen, Rutgers Constitutional Litigation Clinic, Newark, NJ, Edward Barocas, J.C. Salyer, American Civil Liberties Union of New Jersey Foundation, Newark, NJ, for Amicus-Curiae.

        Before NYGAARD, ROTH and AMBRO, Circuit Judges.


        AMBRO, Circuit Judge.

        The primary issues presented in this appeal from the District Court's order denying preliminary injunctive relief are whether the Free Speech and Free Exercise Clauses of the First Amendment allow the Borough of Tenafly, New Jersey, which has permitted various secularly motivated violations of a facially neutral ordinance, to invoke that ordinance against comparable religiously motivated acts by Orthodox Jews. Because there is no evidence that the acts in question are expressive, we hold that the Free Speech Clause does not apply. We further hold, however, that the Borough's selective enforcement of its ordinance likely violated the Free Exercise Clause. Because the other requirements for injunctive relief are satisfied, we reverse and direct the District Court to issue a preliminary injunction.

        I. Background

        An ordinance in the Borough of Tenafly, which encompasses 4.4 square miles and has a population of 13,8061 provides in pertinent part: "No person shall place any sign or advertisement, or other matter upon any pole, tree, curbstone, sidewalk or elsewhere, in any public street or public place, excepting such as may be authorized by this or any other ordinance of the Borough." Tenafly, N.J., Ordinance 691 Article VIII(7) (1954).2 Although Ordinance 691 does not allow Borough officials to make exceptions on a case-by-case basis, in practice they have often done so. House number signs nailed to utility poles in plain view are frequently left in place. Local churches are tacitly allowed to post permanent directional signs bearing crosses on municipal property. Lost animal signs and other private postings often remain undisturbed by Borough officials. Orange ribbons were affixed to utility poles "for a lengthy period of time" by supporters of the local high school during a protracted controversy over school regionalization, but Borough officials made no effort to remove them. Every year, officials in the small community permit the local Chamber

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of Commerce to affix holiday displays to the Borough's utility poles for approximately six weeks during the Christmas holiday season. Red ribbons, wreaths, and seasonal holiday lights are attached to the Borough's utility poles as part of these displays.

        The plaintiffs in this case are Orthodox Jewish residents of Tenafly3 whose faith forbids them from pushing or carrying objects outside their homes on the Sabbath or Yom Kippur.4 In accordance with a religious convention practiced by Orthodox Jews for over two thousand years, however, the plaintiffs believe they may engage in such 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 boundaries of the home, thereby enabling, for example, the plaintiffs to push baby strollers and wheelchairs, and carry canes and walkers, when traveling between home and synagogue. Without an eruv Orthodox Jews who have small children or are disabled typically cannot attend synagogue on the Sabbath.

        Centuries ago, an eruv would be built using ropes and wooden poles. Today, Orthodox Jews can construct an eruv by attaching lechis—thin black strips made of the same hard plastic material as, and nearly identical to, the coverings on ordinary ground wires—vertically along utility poles. Along with preexisting horizontal overhead utility lines, the lechis designate an eruv's boundaries.5 Unless one knows which black plastic strips are lechis and which are utility wires, it is "absolutely impossible" to distinguish the two. Id. at 149. Throughout this litigation, the plaintiffs have maintained that an eruv (as well as each constituent lechi) is "not a religious symbol," but rather is an item with "religious significance." Id. at 148.

        On June 1, 1999, Erez Gotlieb and Gary Osen, two Orthodox Jews who are not parties to this case, met with Tenafly Mayor Ann Moscovitz to discuss creating an eruv in the Borough. Gotlieb and Osen met with Moscovitz because under Orthodox Jewish law an eruv is not valid unless a civil official with jurisdiction over the circumscribed area issues a ceremonial proclamation "renting" the area for a nominal fee (e.g., one dollar). The Mayor said she lacked authority to issue the requested proclamation, but agreed to bring the matter to the attention of the Borough Council, the Borough's legislative branch.6 She did not mention Ordinance 691 or suggest that affixing lechis to utility poles might violate any other ordinance.

        At the next Council meeting, on July 8, 1999, the Council and approximately thirty

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Tenafly residents debated whether the Borough should grant the proclamation. Many of those present expressed vehement objections prompted by their fear that an eruv would encourage Orthodox Jews to move to Tenafly. A Council member whom the District Court was unable to identify noted "a concern that the Orthodoxy would take over" Tenafly. Id. at 151-52. One Council member voiced his "serious concern" that "Ultra-Orthodox" Jews might "stone[ ] cars that drive down the streets on the Sabbath." Id. at 153-54. The Borough Attorney participated in the debate. Neither he nor anyone else mentioned Ordinance 691 or indicated that attaching lechis to utility poles might be unlawful.

        The Council decided to demand a formal, written proposal before voting on whether to issue the proclamation. Mayor Moscovitz advised Gotlieb and Osen, who did not attend the meeting, that the Council was unlikely to grant their request for a proclamation, but invited them to submit a formal application. Frustrated by the Borough's reticence, in August 1999 TEAI asked Bergen County Executive William P. Schuber, whose jurisdiction includes Tenafly, to issue the ceremonial proclamation necessary to validate the eruv. On December 15, 1999, he did so. The constitutionality of this action is not challenged in this case, and neither Schuber nor any other Bergen County official is a party.

        Verizon, the local telephone company, owns the utility poles in Tenafly, though the poles are located on the Borough's property.7 In April 2000, the plaintiffs asked Verizon for permission to attach lechis to its utility poles. The plaintiffs said in a sworn statement, which the District Court found "credible," that they did not believe any municipal ordinance prohibited them from doing so, and thus that they did not need the Council's permission. Id. at 155. After the plaintiffs informed Verizon about the proclamation, they say, the company's in-house counsel researched whether municipal approval was required and advised the plaintiffs that it was not.

        In June 2000 Cablevision, holder of the local cable television franchise, volunteered to help the plaintiffs affix lechis to Verizon's utility poles as a community service. With the help of Cablevision personnel and equipment, an eruv was completed in Tenafly sometime in September 2000.8 The plaintiffs represent, and the Borough does not disagree, that only private funds have supported the eruv and that no municipal assistance of any kind will be needed to maintain it.

        Borough officials apparently did not learn that an eruv was being erected in Tenafly until late August 2000. Mayor Moscovitz and Councilman Charles Lipson met with two local Jewish leaders on September 14, 2000, to discuss the matter. One of the Jewish leaders perceived some of the Mayor's remarks as derogatory toward Orthodox Jews, and the meeting was unproductive. Twelve days later, Borough Administrator Joseph DiGiacomo, acting at the Mayor's behest, asked Cablevision why it helped attach the lechis without the Borough's permission. According to DiGiacomo, the company told him that...

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