Op/Ed: Government-Approved Eruv Would Be Unconstitutional

Editor's Note: Mark Williams, head of the First Amedment Alliance, submitted the following statement  to the Westhampton Village Board on .

My name is and I am a resident of Westhampton Beach (“WHB”).  I represent the First Amendment Alliance, formerly known as the “Alliance for Separation of Church and State for the Greater Westhampton Area.”  The Alliance is a not-for-profit corporation registered in New York State that was founded in 2008.  Our Mission is to advocate adherence to First Amendment principles governing separation of government and religion.

Leaders and supporters of the Alliance are residents of the communities that would be affected by creation of the eruv being sought by the East End Eruv Association (the “Eruv Association”).   The eruv would surround all of Westhampton Beach and Quiogue, and parts of Westhampton and Quogue.

I am here tonight because the Alliance has serious concerns about certain aspects of the litigation brought by the Eruv Association and five local residents (the “Plaintiffs”) against Westhampton Beach, Quogue and the Town of Southampton (“the Municipalities”).  Plaintiffs are asking a federal court in Islip to order the Municipalities to discontinue their opposition to the Eruv Association's efforts to create an eruv by installing lechis (wooden or plastic staves) on utility poles pursuant to agreements with Verizon and LIPA.  They claim that no approval from the Municipalities is required and that, as a result, creation of the eruv raises no constitutional issues.  The wording of Plaintiffs’ request to the court would lead the reader to conclude that installation of the lechis, in and of itself, would create a valid eruv.

1. The Requirement for an Eruv Proclamation           

In order to understand the Alliance's concerns, it is necessary to review a bit of the history of efforts to establish an eruv in and around Westhampton Beach.           

In March 2008, The Hampton Synagogue submitted a petition to the WHB Board of Trustees requesting approval of an eruv that would surround a portion of WHB.  If the Trustees approved the petition, they would issue an “Eruv Proclamation”, an official document that delineates the boundary of the eruv to be constructed and symbolically “rents” the area within the eruv from a government official with jurisdiction over that area.  Representatives of the Synagogue made clear at the time that religious law required issuance of an Eruv Proclamation by local authorities before an eruv could be constructed.  In May 2008, the Synagogue “suspended” its petition, but indicated its intention to resubmit it, though it never did so.  Instead, without any notice to Village authorities, the Synagogue approached the Suffolk County Executive, Steve Levy, in an effort to persuade him to issue the required Eruv Proclamation.  Mr. Levy refused, stating: “As County Executive, this matter is outside the purview of my office. The creation of an eruv is an issue between the local municipality and the synagogue in question.  Suffolk County plays no part in this matter.”

In late summer 2008, the Alliance requested and received permission from the Mayor and Village Trustees for the Alliance and the Synagogue to submit legal memoranda setting forth their positions on the constitutional issues raised by the Synagogue's request for governmental approval of the eruv.  Both sides submitted their memoranda in October and early November 2008.  The Synagogue's memorandum, dated October 19, 2008, was prepared by Robert G. Sugarman, Esq., the same attorney who is representing the Eruv Association in the current litigation. 

It states: “There are two requirements under Jewish law in order for an eruv to be valid. First, there must be a proclamation delineating and 'renting' the area for use as an eruv from a public official whose jurisdiction includes the area in which the eruv is to be constructed.  The public official could be, among others, the mayor of the municipality in which the eruv is to be located, the county executive of the county in which the municipality is located, or the governor of the state.  Second, the physical construction of the eruv must comply with the requirements of Jewish law.  If either of these requirements is not met, the eruv is not valid. (emphasis added) 

If Mr. Sugarman's recitation of applicable Jewish law is correct (and we believe it is), it leads to certain inescapable conclusions: (a) Religious law requires issuance of an Eruv Proclamation by an appropriate government official in order for an eruv to be valid. (b) Mere attachment of lechis to utility poles, without governmental issuance of an Eruv Proclamation, does not create a valid eruv.          

(2)  Eruv Association Efforts to Obtain an EruvProclamation      

Based on past experience it is likely, if not virtually certain, that, if it receives permission to attach lechis to utility poles, the Eruv Association will bypass theMunicipalities and will seek an Eruv Proclamation from a public official other than local officials.   This is what was done in Tenafly, NJ (where Mr. Sugarman was also counsel for an eruv association).  And it was attempted (albeit unsuccessfully) by The Hampton Synagogue in 2008.  Indeed, Mr. Sugarman states in his most recent court filing that Plaintiffs “will not seek a proclamation or ‘rental agreement’ from the Villages.”  The logical conclusion from that statement is that Plaintiffs will seek an Eruv Proclamation from a public official other than an official of the Municipalities (possibilities include the Suffolk County Executive, the state Attorney General, or even the Governor). 

We believe that as a matter of fairness and respect for the Municipalities and their residents, the Eruv association should disclose to the Municipalities any efforts it has made, or is planning to make, to obtain an Eruv Proclamation.

3. Effects of the Eruv Proclamation Requirement on Plaintiffs’ Allegations    The federal court must be informed that even if it grants Plaintiffs the injunctive relief they seek, the result will not be a valid eruv, since there will be no validating Eruv Proclamation, issued by an appropriate public official.  

The Eruv Proclamation requirement has a significant effect on key allegations made by the Eruv Association in the litigation.

(a) Irreparable Injury   In order to justify the injunctive relief they seek, Plaintiffs have had to allege (and must prove) that they will suffer "irreparable injury” if the court does not allow them to “create the eruv” by attaching lechis to utility poles.  As shown above, however, merely attaching lechis will do nothing for them without an Eruv Proclamation, and there is nothing in Plaintiffs’ court filings to indicate they have either requested or procured one from any public official.  Indeed, as noted above, their only reference to this issue is the statement that they will not seek one from the “Villages.”  Thus, there will be no irreparable injury if the court denies their motion for injunctive relief. The court must be made aware of this.

(b) Redress of Injury  In order to have “standing” to seek judicial relief under, plaintiffs have had to allege (and must prove) that the court can completely redress their  “injury” by granting the injunction they seek.  Once again, however, the absence of a validating Eruv Proclamation makes it impossible for the court to redress plaintiffs’ "injury" simply by permitting the attachment of lechis.  The court must be made aware of this.

(c) Substantial Burden.  Plaintiffs allege that the Defendants’ actions in opposing the lechis attachments have imposed a substantial burden on the practice of their religion. This allegation is baseless.  First, Jews, no matter what branch of the their religion, have been able to fully and freely practice it unimpeded in the Hamptons, and throughout the United States, for  generations.  Second, the Municipalities have taken no actions that, if discontinued, would permit plaintiffs to push and carry on the Sabbath, since there would still have been no validating Eruv Proclamation. The court must be made aware of this.        

4.  The Constitutional Arguments Plaintiffs are trying to avoid First Amendment arguments by the Municipalities by claiming that no “government action” (i.e., formal approval) is required to create an eruv.  As shown above, that is not true: government action (issuance of an Eruv Proclamation) is required.  I will briefly summarize the First Amendment issues that arise from that requirement.

(a)   Establishment Clause (“Congress shall make no law respecting an establishment of religion.") The "establishment clause" requires government to be even-handed and neutral toward religion.  It prohibits government from taking any action that advances the interests and goals of any religion, or demonstrates a preference for any religion, or amounts to an endorsement of any religion.  Government approval of an eruv would violate all of these requirements.

The eruv has become a primary tool for establishing new, geographically defined Orthodox Jewish communities, and for facilitating the growth and consolidation of existing communities.  In other words, an eruv attracts Orthodox Jewish families to settle within a specifically delineated area, where they live in close religious community with other Orthodox families that share their religious beliefs, practices, customs and lifestyles.  Over time, as more Orthodox families move into the eruv, a “community within a community” is formed.

There is no constitutional barrier to Orthodox Jewish groups working privately to make their communities more inviting to fellow believers; in fact, our Constitution protects those actions.  However, while religious groups may take steps to advance themselves, government is specifically prohibited from supporting or endorsing such steps.

I want to make something absolutely clear: The Alliance has no constitutional or other objection to an eruv or to an Orthodox religious community.  We respect the right of every religion to expand, advance and strengthen itself, and we support the right of all persons, whatever their beliefs, to live wherever they choose. However, the establishment clause prohibits government from favoring or showing a preference for any religion and government may not endorse - or be seen to endorse-the goals and advancement strategies of any religion or religious group.  That is exactly what would happen were a public official to issue an Eruv Proclamation approving the eruv.           

(b) Free Exercise Clause (“Congress shall make no law . . . prohibiting the free exercise” of religion).   The “free exercise” clause prohibits government from placing a “substantial burden” on religious practices.  In certain circumstances,  it may require that government remove a burden on religious practice that it has created through secular law or policy. However, the burden on religious exercise faced by Orthodox Jews is not the result of any civil law or government policy.  Rather, it results from the prohibitions on pushing and carrying imposed by their own religious law.  In other words, whatever burden Orthodox Jews face in the absence of an eruv is self-imposed, a direct result of the religious law they have chosen to observe.  In no way is that “burden” attributable to government.  There is no precedent under the First Amendment for requiring government to remove a burden on religious practice that it did not create, impose or sanction.

The Eruv Association also argues that government approval of the eruv would be nothing more than a simple “accommodation” of religion, required under the free exercise clause.  But in fact, government approval of an eruv would be far more than an accommodation.  As shown above, it would violate the establishment clause.  Moreover, an eruv is a religious device, created by religious law, to enable observant Orthodox Jews to circumvent prohibitions imposed by their own religious law, or to make their actions acceptable within religious law, however one may interpret it.  In any case, an eruv is regulated entirely by religious law, and serves no secular purpose.  And it is religious law - not secular law - that requires an eruv to be approved by government through issuance of an Eruv Proclamation.  Court-ordered government approval of an eruv would far exceed the permissible limits of religious accommodation.

Let us again be clear:  We recognize that government must accommodate religious practices in appropriate circumstances, and we support the right of all persons, whatever their beliefs, to practice their religions freely. However, there are constitutional limits to religious accommodation and, without question, they would be exceeded were a public official to approve the eruv and issue the requisite Eruv Proclamation.  Such approval would be an endorsement of the purpose of the eruv. It would make secular authority an instrument of religion, validating and implementing religious law, over which it has no authority, in order to free Orthodox Jews from restrictions imposed by their own religious law.

If the constitutional separation of government and religion means anything, it means that neither government nor religion may become an instrument of the other.

Conclusion

The Alliance makes certain requests of you tonight that we believe are appropriate in light of the pending litigation against the Village and its Board members.  We will be making the same requests to the Mayor and Trustees of Quogue, and to the Supervisor and Trustees of the Town of Southampton.

1. Please instruct litigation counsel for the Village to inform the federal district court in Islip of the issues raised by the requirement for an Eruv Proclamation and the effect of that requirement on Plaintiffs’ request for a preliminary injunction.

2. Please request the Eruv Association and its counsel to notify you whether they plan to seek an Eruv Proclamation from any public official, and if so, disclose the identity of that official.

3. Please contact the Suffolk County Executive, the state Attorney General and the Governor, and request that they notify you if they receive any request from the Plaintiffs, their counsel, or anyone acting on their behalf, for issuance of an Eruv Proclamation.