Legal Decisions Related to Eruvs
Both Federal and State courts considering the legality of eruvs have been consistently supportive of them. As discussed below, courts have rejected arguments that eruvs violate the Establishment Clause of the First Amendment. Conversely, courts have held that refusal to allow eruvs violates the Free Exercise Clause of the First Amendment. Courts also have rejected attempts to regulate eruvs under municipal sign ordinances.
Approval of an Eruv Does Not Violate the Establishment Clause.
The Establishment Clause of the First Amendment of the Constitution to the United States is made applicable to the States by the Due Process Clause of the Fourteenth Amendment. The religion clauses of the First Amendment to the United States Constitution provide that: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof". The first clause is referred to as the "Establishment Clause", the second as the "Free Exercise Clause."
Jewish People for the Betterment of Westhampton Beach v. The Village of Westhampton Beach
In the case of Jewish People for the Betterment of Westhampton Beach v. The Village of Westhampton Beach, 778 F.3d 390, 2015, the United States Court of Appeals for the Second Circuit concluded that the construction of an eruv does not violate the Establishment Clause. In this case, defendants, at their own expense, had constructed an eruv on LIPA and Verizon utility poles in Westhampton Beach, New York. Plaintiffs asserted that "[t]he eruv…will not go unnoticed" but, rather, "will be a constant and ever-present symbol, message and reminder to the community at large, that the secular public spaces of the Village have been transformed for religious use and identity." Plaintiffs further alleged that they "will be confronted with the EEEA's religious display on a daily basis."
The Second Circuit rejected these arguments. The Court ruled that plaintiffs had not stated a valid claim for a violation of the Establishment Clause against Verizon because Verizon is not a governmental entity. In contrast, because LIPA is a political subdivision of New York State, the Second Circuit did consider and reject the merits of plaintiffs’ Establishment Clause claims as they apply to LIPA. According to the Second Circuit, no reasonable observer who notices the strips (i.e., lechis) on LIPA utility poles would draw the conclusion that a state actor is thereby endorsing religion, even assuming that a reasonable observer is aware that a state actor (i.e., LIPA) was the entity that contracted with a private party to lease the space. The Court also noted that because the eruv was financed, installed and maintained by private parties, there is no risk of excessive government entanglement with religion.
American Civil Liberties Union v. City of Long Branch
The Second Circuit also noted that every court to have considered whether similar government actions violate the Establishment Clause has concluded that they do not. For example, in the case of American Civil Liberties Union v. City of Long Branch, 670 F. Supp. 1293 (D.N.J. 1987), the American Civil Liberties Union argued that the City of Long Branch’s authorization of an eruv violated the Establishment Clause of the First Amendment. The United States District Court of New Jersey did not find the ACLU’s arguments convincing. The Court concluded that the City’s authorization of an eruv does not advance any particular religion. The existence of an eruv does not impose the Jewish religion on other residents of Long Beach. The existence of an eruv does not provide improper benefit to a religious institution. Rather, it merely accommodates the religious practices of those residents who are observant Jews. Further, the Court found that the aid provided by the government in this instance is de minimus.
Smith v. Community Bd.
In the case of Smith v. Community Bd. No. 14, 491 N.Y.S.2d 584, 586 (N.Y.Sup.Ct.1985), plaintiffs who opposed the construction of an eruv contended that "the enclosing of the aforedescribed area by this religious device will create a religious aura in and have a metaphysical impact on the area which will force myself and other residents to assume special burdens to avoid. The only way to avoid this unwelcomed and unwanted religious device and the resultant religious aura and metaphysical impact in the area would be to move-away from the area and find residence elsewhere, in a neighborhood free from religious aura and/or designation." The Supreme Court, Queens County, did not agree with the plaintiffs. Allowing private parties to construct an eruv on public property at their own expense, did not establish religion, but rather was a valid accommodation of religious practice. Allowing the construction of an eruv did not result in excessive government entanglement with religion.
Verizon v. The Village of Westhampton Beach
In another case involving the Village of Westhampton Beach (Verizon v. The Village of Westhampton Beach et al., No. 11 Civ. 252), on June 16, 2014, Magistrate Judge Kathleen Tomlinson ruled that an eruv could be established in Westhampton Beach. In reaching this conclusion, the Court considered the Towns' argument that Verizon lacked authority to license use of its poles for other than utility purposes. The Court rejected this argument in light of the fact that Verizon had previously allowed the temporary mounting of posters and banners announcing local events, such as the Westhampton Beach St. Patrick’s Day Parade. The Court construed Verizon’s franchise agreements with the Towns’ and found they contained no prohibition on the utility's licensing use of its poles for non-utility purposes. The Court also found that the Transportation Corporations Act did not bar Verizon from entering into such license agreements.
The Court also considered the question of whether the Towns' police powers permit them to prevent Verizon from licensing the use of their poles for placement of lechis. The Court held that although the municipalities could regulate the mounting of lechis under their police powers, Westhampton Beach had no ordinance doing so, and as a result there was no municipal regulatory bar to the utilities permitting placement of lechis on their poles.
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