Another eruv fight

The struggle to build an eruv on Long Island’s east end continues to wend its way through the courts, and the man leading the charge on behalf of the East End Eruv Association is Robert Sugarman, a retired partner in the New York law firm Weil, Gotshal & Manges, who is no stranger to such battles.

In 2000, Sugarman fought for the Tenafly eruv association after the borough ruled against the creation of the symbolic enclosure, which allows observant Jews to perform certain tasks on Shabbat – such as carrying keys and tallitot or pushing a stroller or wheelchair – that otherwise would be prohibited. The association won the war in court in 2005, and gained the right to an eruv in Tenafly.

On Long Island, three municipalities – Westhampton Beach, Quogue, and Southampton – have gone to court to prevent local Jews from erecting an eruv.

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Sugarman talked about the implications of Tenafly’s win for the struggle in the Hamptons.

When the Tenafly case first headed toward litigation, a member of the township’s eruv committee, who was a lawyer at Weil Gotshal, asked the firm to handle it pro bono. Sugarman took it on, because of his family’s own modern Orthodox background, his legal expertise in First Amendment law, and his longtime involvement with the ADL, which combats all kinds of discrimination.

“This was an interesting and important First Amendment case, and I was intrigued and challenged by litigating it in federal court,” he said. “This was a civil rights issue – and it is in a way a discrimination issue – because part of what was going on in Tenafly was an effort to discriminate against Orthodox Jews by keeping them out.”

The First Amendment is best known for its guarantee of the free exercise of religion. But it also includes the establishment clause, which protects against government selectively endorsing one religion over another. In Tenafly, opponents of the eruv argued that its creation would violate the establishment clause by favoring the religious practice of Orthodox Jews.

Some eruv opponents in Westhampton Beach also have argued that an eruv would similarly violate the establishment clause by allowing the placements of lechis – the PVC strips used to mark the boundaries of an eruv – on utility poles in the town. They maintain that lechis and an eruv would be a religious imposition on the beliefs of Conservative and Reform Jews, whose traditions do not include the use of an eruv, as well as on those of gentiles. To counter that claim, a letter from the Suffolk County Board of Rabbis, dated April 20, in support of the eruv was signed by 13 of the county’s rabbis, representing all Jewish streams.

But Sugarman said that the fact that some segments of the Jewish community do not hold by an eruv, for whatever reason, is irrelevant. In 1990, he pointed out, the Supreme Court ruled that the federal courts cannot become involved in issues of religious beliefs, which prevents them from validating or discrediting one streams’ religious practices over another’s.

Consistent with earlier decisions on the matter in Long Branch and in Queens, the courts in Tenafly ruled that an eruv does not constitute such a violation, but rather is an accommodation to a religious group, which is legal.

In Tenafly, the borough tried to deny the eruv committee’s request to post lechis on utility poles on the basis of a local ordinance that prohibits affixing signs to telephone poles. That argument failed, according to Sugarman, because the ordinance never had been enforced uniformly. Evidence for that was clear – there were many signs and ribbons on the poles, and none of them had ever triggered any opposition from Tenafly officials or residents.

“The argument we made was that suddenly enforcing this ordinance to prohibit the placement of lechis is a violation of the religious freedom clause of the First Amendment,” he said. The Court of Appeals for the Third Circuit agreed. The eruv supporters won.

Southampton has a similar sign law prohibiting posting on local utility poles, Sugarman said. The question there is whether the lechis constitute signs. The EEEA wants to put up about 60 lechis around the three municipalities; the overhead utility wires would complete the boundaries.

The Tenafly sign ordinance actually is tougher than those in Quogue and Southampton, which do not prohibit all signage, Sugarman said. But the Quogue Village Council and the Southampton building inspector have ruled that the lechis are signs, which are subject to the ban. Sugarman intends to argue against the validity of that determination.

“We certainly will go to [Southampton’s] zoning board of appeals to contest the building inspector’s decision,” Sugarman said. “If the zoning board issues an unfavorable opinion, the EEEA will go back to the judge to ask that he enjoin the municipalities from further obstruction of the eruv.”

Sugarman expects to be back in court by the end of the summer, with an application to allow the eruv in Quogue and Westhampton Beach, while following up with the application to Southampton’s building department. As the process plays itself out, he foresees three possible resolutions of the eruv dispute: approval of what the EEEA originally sought, an eruv that would encompass Westhampton Beach and part of Quogue and Southampton; if the Southampton sign ruling is upheld, an eruv that incorporates Westhampton Beach and parts of Quogue; or – the result Sugarman considers least likely – an eruv that would cover only Westhampton Beach.

The Hamptons case is only the fourth such argument against an eruv to reach the court system nationwide. Sugarman said that it is unlikely to reach the Supreme Court, which had rejected a petition from Tenafly to hear the case, but could rise as high as the Court of Appeals for the Second Circuit. He added that there is a chance that the case could reach the Supreme Court, though. That would happen if the Second Circuit rules differently than the Third Circuit had. No matter who wins the current legal round, Sugarman predicted, it is likely that there will be an appeal to a higher court.

Despite Sugarman’s prominent position in the ADL the organization has remained on the sidelines in the eruv dispute so far. Its policy is not to get involved in litigation unless it reaches the appellate court level. Sugarman would not speculate about whether the ADL would get involved if the case does reach the Federal Court of Appeals.

As was the case in Tenafly, opposition to the eruv in the Hamptons is based at least in part on some residents’ fear that its presence would lead to an influx of Orthodox Jews. Such an influx, several members of the Jewish People for the Betterment of Westhampton said, ultimately would change Westhampton Beach from a resort to a religious town.

During the Tenafly litigation, Sugarman offered as evidence a newspaper article that quoted the mayor of West Orange as saying that its eruv, operational since 1983, had not altered the town’s demographics. According to Sugarman, the fact that there has been no significant rise in the Orthodox population of Tenafly since its eruv’s creation suggests that such fears may be unwarranted.

In any event, Sugarman said, the argument that an eruv should not be allowed because it might result in more Orthodox Jews settling in a town or neighborhood is inherently discriminatory. “The time has long passed in this country where it is permissible to discriminate against people because they are Orthodox Jews or African Americans or Muslims or … you name it,” he said.

From the Long Island Jewish World. Published with permission