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Aug 18, 2008 1:50 PMPublication: The Southampton Press

Tenafly eruv battle resonates in Westhampton Beach

Aug 18, 2008 1:50 PM

Rabbi Schneier also caused widespread speculation that he would bypass the Village Board altogether—similar to the way the Tenafly Eruv Association skipped over borough officials—when, earlier this month, he invited New York Governor David Paterson to speak following the end of Shabbat services at the Westhampton Beach synagogue on August 2. Any entity that has the authority to close roads can approve the creation of a eruv, according to Rabbi Schneier.

Bruce Rosen, an attorney with the Florham Park, New Jersey-based law firm McCusker, Anselmi, Rosen and Carvelli, represented the Borough of Tenafly in its court battle against the New Jersey synagogue. He explained that the 3rd Circuit decision on the Tenafly case states that if the borough allows utility poles to be used by individuals for secular purposes, it cannot forbid a religious organization, such as the Tenafly Eruv Association, to also utilize the poles for the lechis for an eruv.

Mr. Rosen added that while the Tenafly case did permit the established eruv to remain in place, it in no way ruled that Orthodox Jews “have a right to the eruv.”

“It doesn’t say anywhere that a municipality has to provide a religious accommodation in the form of an eruv,” Mr. Rosen said. “If they’re allowing their poles to be used by other organizations, [borough officials] can’t deprive the synagogue of doing it.”

Mr. Rosen also stressed that permission to create an eruv is not a “civil right”—a term used by Rabbi Schneier to describe his synagogue’s desire to have a 1-square-mile religious boundary, which would be demarcated with between 30 and 40 black plastic pipes affixed to utility poles, in Westhampton Beach.

Morris Tuchman, a member of the eruv association at the Hampton Synagogue in Westhampton Beach, countered that the Tenafly case is a civil rights case because it applied “strict scrutiny” to the issue. Strict scrutiny is code for a civil rights case, Mr. Tuchman explained.

However, Mr. Rosen said that “there is nothing mandating that the town must allow [the eruv],” the eruv. He explained that the proposed creation of an eruv is “not an unconstitutional entanglement of church and state”—although this argument has been made by eruv opponents in Westhampton Beach.

Mr. Tuchman agreed that there is nothing mandating that Westhampton Beach must approve an eruv, but added that the village still needs a “compelling state interest” in order to deny the proclamation. This, Mr. Tuchman contends, will be difficult to find.

Mark Williams, a retired lawyer and one of the leaders against the eruv in Westhampton Beach, agreed with Mr. Rosen’s opinion, noting that the village needs to come up with a legitimate excuse to deny such an application. Mr. Williams is involved with the Alliance for the Separation of Church and State in the Greater Westhampton Beach Area, a group that opposes the eruv.

Mr. Williams said he agrees with the decision of the Tenafly case—that a municipality cannot selectively enforce an ordinance. But, he explained, if an ordinance regarding signs on utility poles is enforced impartially, then it could be used to prohibit the establishment of an eruv.

“All the Constitution requires is that the government be neutral to religion,” Mr. Williams said. “It can’t favor it—it can’t discriminate.”

Mr. Williams declined to go into greater detail at this time, explaining that he has been asked by the Westhampton Beach to provide a legal opinion on the eruv on behalf of the alliance.

Defining a Sign

Paul Houlihan, the village’s building inspector, said Westhampton Beach currently lacks a sign ordinance that specifically relates to utility poles—only one that addresses the “public right-of-way” in the village.

“There is no sign ordinance special to the telephone poles, but if a sign is placed in the public right-of-way, the building inspector can remove it,” Mr. Houlihan said.

He also added that, in his opinion, the lechis would not qualify as signs. Quoting the village code, Mr. Houlihan said that a sign is defined as a “material structure or device or part thereof which shall display or include any letter, word, model, banner, pennant, insignia, device, flag, string of lights, artificial lighting or graphic representation.”

“A sign is all about advertising or announcing a business or product or event,” Mr. Houlihan said. “Nothing I’ve heard so far with these pieces of pipes sound like a sign to me. I’m hard-pressed to find a difference between that and other plastic pipes on poles now.”

An Eruv’s Impact

Regardless of what happens in Westhampton Beach, since 2001 Orthodox Jews in Tenafly, New Jersey, have been permitted to push and carry objects on the Sabbath, the Jewish holy day. On Saturday mornings in the borough, which has a year-round population of about 14,000, Orthodox Jewish mothers push strollers while walking next to their husbands. At least 30 strollers were parked outside of Kesher: The Community Synagogue for Tenafly and Englewood during a recent visit.

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I just wanted to point out that the "Smith v Community Board" case, is binding authority for Suffolk County.(Tenafly is certainly pursuasive, but Smith is binding)
In that case, the City's leasing ITS light poles, and permitting stringing lines on those City owned poles (amongst other things), did not improperly entangle government in religion under both the federal and state constituitions.
By Morris Tuchman (5), Westhampton Beach on Aug 29, 08 10:27 AM
ok there is one significant difference here 1. there has been no eruv erected 2. the eruv is proposed to be erected on utility poles 3 town guidelines prohibit ANY placement of any material by any party on these poles except by verizon or lipa TATS THE DIFFERENCE HERE we dont want the community to be divided or have a feel of division but regardless of any feeling it illegal to erect anything on these poles PERIOD Bring it to resident voter Vote and it will decide for all whats what ...more
By pgg6259 (5), westhampton bch on Oct 13, 08 10:05 AM