AMER. CIV. LIBERTIES UNION v. City of Long Branch

• Decision Date: 02 October 1987
• Docket Number: Civ. No. 87-1822 (AET).
• Citation: 670 F. Supp. 1293
• Parties: AMERICAN CIVIL LIBERTIES UNION OF NEW JERSEY, a New Jersey membership corporation, and Deborah D. Jacoby, Plaintiffs, v. CITY OF LONG BRANCH, et al., Defendants, Congregation Brothers of Israel, Inc., Rabbi Tobias Roth, et al., Defendants-Intervenors.
• Court: U.S. District Court — District of New Jersey

670 F. Supp. 1293

AMERICAN CIVIL LIBERTIES UNION OF NEW JERSEY, a New Jersey membership corporation, and Deborah D. Jacoby, Plaintiffs, v. CITY OF LONG BRANCH, et al., Defendants, Congregation Brothers of Israel, Inc., Rabbi Tobias Roth, et al., Defendants-Intervenors.

Civ. No. 87-1822 (AET).

United States District Court, D. New Jersey.

October 2, 1987.

Levy & Robertson by Lewis H. Robertson, Asbury Park, N.J., for plaintiffs.

Cerrato, O'Connor, Dawes, Collins, Saker & Brown, P.A., Freehold, N.J., for defendants Monmouth County, D'Amico, Vallapiano, Naorzanick, Powers and Larrison.

Gagliano, Tucci, Iadanza & Reisner, West Long Branch, N.J., for defendants City of Long Branch, Pallone, Cofer, Hayes, Palughi and Tobia.

Zager, Fuchs, Leckstein, Kauff and Needle, Red Bank, N.J., for proposed defendants-intervenors.

OPINION

ANNE E. THOMPSON, District Judge.

This matter comes before the court on a motion by plaintiffs ACLU and Deborah Jacoby ("ACLU") for a preliminary injunction to prevent any further steps toward the creation of an eruv within the City of Long Branch and on a motion to dismiss by defendant-intervenors Congregation Brothers of Israel ("Congregation"). Inasmuch as this court heard testimony on this matter on August 6, 1987 and affidavits and depositions have been submitted to the court, we will treat the motion to dismiss as a motion for summary judgment, F.R. C.P. Rule 12(b). On May 8, 1987 this court denied the ACLU's motion for a temporary restraining order. This lawsuit was originally filed by the ACLU solely against the City of Long Branch. On August 6, 1987 at oral argument the court granted the request of the Congregation Brothers of Israel to intervene as a defendant in this action.

Plaintiff ACLU alleges that the creation of an eruv with its boundary markers on public property violates the establishment clause of the First Amendment to the United States Constitution and Article 1, ¶¶ 3 and 4 of the New Jersey Constitution. An eruv, under Jewish law, is an unbroken delineation of an area. The demarcation of the eruv boundary is primarily created using existing telephone poles and fences with wires connecting them and with small half-rounds attached to the sides of the poles. The designation of an eruv allows observant Jews to carry or push objects from place to place within the area during the Sabbath. Within the eruv observant Jews may push baby carriages from their homes to the synagogue or to other homes, carry books to the synagogue, and carry food to one another's homes. Pushing and carrying are not permitted in the public domain on the Sabbath; however, the creation of an eruv district permits such actions by creating the legal fiction of a "private domain."

In order to delineate the eruv in Long Branch the Congregation is using existing utility poles, telephone poles and fences connected by wires. The Congregation has also been authorized by the city, at the Congregation's expense, to erect two additional poles, extend a fence, and raise the pole at the end of a fence. The city's resolution establishing the eruv and authorizing the Congregation to erect the poles and fence extension on public property is the focus of plaintiffs' challenge in this case.

On June 15, 1985 the Council of the City of Long Branch adopted a resolution authorizing the creation of an eruv within Long Branch. On July 11, 1985 the Board of Chosen Freeholders of Monmouth County adopted an identical resolution. After a number of revisions the final plan for the eruv calls for the use of existing telephone poles and for the installation of two additional poles, a fence extension and one fence pole at the Congregation's expense. The ACLU and Ms. Jacoby allege that the demarcation of the eruv using poles and fences erected on public property violates the "constitutional proscription against governmental action respecting an establishment of religion." (Complaint, ¶ 31). Plaintiffs maintain that the creation of an eruv constitutes the placement of "permanent symbols" of the Jewish religion on public property. (Complaint ¶ 43).

The defendants allege that plaintiffs do not have standing to raise these claims. The defendants argue that the plaintiffs ACLU and Ms. Jacoby cannot bring this lawsuit because they have not shown a particular injury that has been inflicted on them by the creation of the eruv. The court finds that Ms. Jacoby and the ACLU, on behalf of its members who reside in Long Branch, do allege personal injuries suffered as a consequence of the alleged constitutional violation sufficient to confer standing on them. Their allegations that their access to the park and/or to particular parts of the park has been impeded as well as their aesthetic objections to the poles and the fence are palpable injuries different from "the psychological consequence presumably produced by observation of conduct with which one disagrees." Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 485, 102 S.Ct. 752, 765, 70 L.Ed.2d 700 (1982). We find that the ACLU on behalf of its Long Branch members and Ms. Jacoby have alleged sufficient aesthetic and environmental injuries to have standing to sue. See Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972) and United States v. SCRAP, 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973).

Plaintiff ACLU argues that the authorization for the eruv and the erection of the poles and fence on public property violate the establishment clause of the First Amendment as applied to the states by the Fourteenth Amendment. As set forth in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), state action must meet a three-part test in order to avoid violating the establishment clause. The state action must (1) have a secular purpose; (2) have a principle effect which does not advance religion; and (3) not foster excessive entanglement with religion. Id. at 612-13, 91 S.Ct. at 2111-12. The court notes at the outset that the establishment clause does not forbid all interaction between religious organizations and the state. Certain accommodations by the state will always be necessary in order to insure that people of all religions are accorded the rights given them by the free exercise clause of the First Amendment. Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984).

In order to determine whether there is a secular purpose for actions taken by the City of Long Branch we must examine what the city did and what the effect of the actions has been. The city's actions appear to be limited to granting the Congregation the right to erect two additional utility poles, extend a fence and lengthen a fence pole in order to create an eruv in which observant Jews may engage in secular activities on the Sabbath, such as carrying a book or pushing a baby carriage to the park. As the City of Long Branch notes in its brief, the secular purpose of this resolution is that it allows a large group of citizens access to public properties. Within the eruv district they may go to the park, push a baby carriage on public streets, and visit friends. The eruv which the city has allowed the Congregation to create is not a religious symbol. Neither the boundary markers of the eruv nor the eruv itself have any religious significance. They are not objects of worship nor do they play any theological role in the observance of the Sabbath. Under Jewish law the eruv does not alter the religious observance of the Sabbath, it merely allows observant Jews to engage in secular activities on the Sabbath. The court finds that the City of Long Branch has established a secular purpose for its authorization permitting the delineation of an eruv in Long Branch.

By permitting the synagogue to use its own funds to create an almost invisible boundary in which its members may engage in secular activities on the Sabbath, the City of Long Branch is not putting its imprimatur on any public manifestation of religion, such as moments of prayer in public schools or the posting of the ten commandments on classroom walls. Wallace v. Jafree, 472 U.S. 38, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985); Stone v. Graham, 449 U.S. 39, 101 S.Ct. 192, 66 L.Ed.2d 199 (1980). Providing equal access to public facilities to people of all religions and enabling individuals to get to and from their chosen places of worship safely are permissible accommodations by the government. The government is permitted to fix sidewalks outside churches, provide police protection and basic utilities for mass outdoor religious gatherings, provide police to direct traffic into synagogue parking lots and authorize a house of worship to install additional street lights on public property to facilitate access to evening services. See O'Hair v. Andrus, 613 F.2d 931 (D.C. Cir.1979), and L. Tribe, American Constitutional Law 839-840 (1978).

The city allowed the eruv to be created to enable observant Jews to engage in secular activities on the Sabbath. This action does not impose any religion on the other residents of Long Branch. Residents are not confronted with any visible religious symbolism in their community, in fact the only visible alterations are two additional utility poles, an additional piece of fence, and some half-rounds on the sides of existing poles. None of these objects have any religious significance. Residents are not subjected to religious words coming from those employed by the government, such as teachers in public schools, nor has any religious group been given any authority to mandate behavior in the community. The eruv does not alter the observance of the Sabbath by observant Jews, these congregants will continue to observe the Sabbath as they have all their lives and as they would without an eruv. The eruv merely...