MAY 7, 2003

GOVERNMENT
Jewish Sabbath, public spaces, legal disputes

To most Americans, they are invisible. To Orthodox Jews, they are an important aid for observing strict Sabbath rules. But in communities across the nation, eruvin - unbroken boundaries created by attaching strips of plastic or cloth to public utility poles - are inspiring curiosity and sometimes controversy as residents weigh needs and rights against restrictions on endorsing religion in public spaces.

The highest-profile and longest-running court case is in Tenafly, N.J., where the Borough Council recently asked the U.S. Supreme Court to rule on the fate of its eruv. Eruvin allow observant Orthodox Jews to carry a few indispensable things between public and private property on the Sabbath, from sundown Friday to sundown Saturday - something Jewish law otherwise forbids. The lechis - strips of plastic or cloth that define eruv boundaries - are nearly invisible, but in some communities, efforts to construct or retain an eruv have sparked community division and charges of anti-Semitism.

Such organizations as the American Civil Liberties Union and Americans United for Separation of Church and State have weighed in on behalf of eruv opponents, saying all groups should receive the same freedoms and protections and that courts should refrain from allowing government sponsorship of religion. On the other side, national organizations like the Becket Fund for Religious Liberty and the Orthodox Union support eruvin.

There are perhaps hundreds of eruvin across the country. Is there one in your area or plans to construct one? (In Your Region resources will help you find out.) Talk to Orthodox Jewish residents about why one is needed or how an existing eruv improves their lives. Is there opposition to an eruv? On what grounds? How do debates and misunderstandings about eruvin compare to other disputes involving religion on public property?

Why it matters
Eruvin are a complex and obscure intersection of religious and public life, since they call into question the legality of allowing a religious use of public property. The Tenafly, N.J., case comes at a time when eruvin - the plural of the Aramaic word for boundary - have sprung up in cities and towns with a sizeable population of Orthodox Jewish residents. The number of Orthodox Jews and their proportion among American Jewry appears to be increasing slightly, and as their communities grow, so does the potential for municipal disputes over eruvin.

Jump to court cases and other background

Click the map for interview sources in your state and region

National sources
• Rabbi Barry Freundel of Kesher Israel Congregation in Washington, D.C., is an expert on eruvin. There is no definitive count, but Fruendel guesses that there are hundreds of eruvin in the United States. Almost all Orthodox communities have them, and if a community doesn't, residents will move to a community that does because they add so much convenience to life, he says. Contact 202-333-2337, dialectic@aol.com.
• Arnold Eisen, religious studies professor at Stanford University is author of Eruv: Jews, Judaism and the Dilemmas of Multicultural Citizenship (University of Chicago Press, 1999). Contact 650-723-0467.
• Rabbi Shimon Eider of Lakewood, N.J., is a consultant to communities around the country that are building or considering eruvin. Contact 732-363-3980.
• The Rabbinical Council of America speaks for the Orthodox rabbinate. Contact 212-807-7888, rabbis@rabbis.org, or Rabbi Hershel Billet, president, at Young Israel of Woodmere, 516-374-7568, president@rabbis.org.
• Contact Nathan J. Diament, director for public affairs at the Union of Orthodox Jewish Congregations of America Institute for Public Affairs, 202-513-6484.
• Rabbi David Saperstein is director and counsel of the Religious Action Center of Reform Judaism. The Union of American Hebrew Congregations, Commission on Social Action of Reform Judaism filed an amicus brief supporting the Tenafly eruv. Rabbi Saperstein, an attorney, teaches seminars at Georgetown University Law School on First Amendment church-state law and on Jewish law. Saperstein says that although Reform Jews don't use eruvin, they see the issue as one of the right of religious people to live their lives fully. Reach Saperstein through aide Alexis Rice, 202-387-2800, arice@rac.org.
• Read a discussion of the religious intricacies of eruv law by attorney and Jewish scholar Raphael Grunfeld of New York City. Contact Grunfeld at 212-238-8653, RafeGrun@aol.com.

Background
Court cases
The legal issues, to proponents, revolve around whether a municipality's denial of permission to erect an eruv on public property improperly restricts the constitutional right to the free exercise of religion. Opponents say that allowing a religious use of city property, however discreet, amounts to the unconstitutional establishment of religion. In addition, some authorities say that Jewish law requires a proclamation from the local authority to accompany a functioning eruv. Critics of eruvin say that, in making such a declaration, a local government is conducting a religious act. Proponents argue that it is a secular act that enables a religious purpose, something quite different.

TENAFLY, N.J.
• This is the longest-running eruv case in the country. In April 2003, the Tenafly Borough Council asked the U.S. Supreme Court to review whether the eruv should remain in place while its legality is adjudicated. There has not yet been litigation on the merits of the case, according to Borough Attorney William McClure.
• The Tenafly eruv encloses about a third of the borough of 13,000 and joins an eruv in Englewood, N.J. According to a Feb. 6, 2003, Associated Press story at SanLuisObispo.com, the Tenafly eruv was created in 2000 when Orthodox Jews installed lechis without the town council's knowledge but with permission from two commercial utilities that maintain the city's telephone poles. Borough officials ordered the eruv removed, pointing to an ordinance prohibiting posting items on town property. The borough argues that allowing the eruv to stand constitutes an improper government endorsement of religion. Eruv supporters say the town let other users place items - from yard sale fliers to Christmas wreaths - on the poles and thus they, too, are entitled under the Free Exercise Clause in the Constitution's First Amendment to an exemption from the ordinance.
• On Oct. 24, 2002, the U.S. Court of Appeals for the Third Circuit ruled in favor of the Tenafly eruv. Read a history of the case at the Becket Fund for Religious Liberty site. Read an article on the site of the Anti-Defamation League describing the ruling. The court concluded that "unless one knows which black plastic strips are lechis and which are utility wires, it is 'absolutely impossible' to distinguish the two," the article says. Earlier this year, the 3rd U.S. Circuit Court of Appeals declined to rehear the case. Read a Feb. 7, 2003, story in The Jewish Week.
• Contact Tenafly's special counsel for the case, Bruce Rosen, 973-635-6300.
• The Becket Fund for Religious Liberty filed an amicus brief supporting the Tenafly eruv. Contact general counsel Anthony Picarello, 202-955-0095.
• Read an amicus brief on the Becket Fund site by the Orthodox organization Agudath Israel.
• Americans United for Separation of Church and State filed an amicus brief in the case because of its concern that, in hearing the case, the appeals court "made a series of sweeping statements narrowing the reach of the Establishment Clause and expanding the reach of the Free Exercise Clause in ways that could prove troublesome in other cases." Contact executive director Barry W. Lynn, 202-466-3234.
• Hadassah, the women's Zionist organization of America, filed an amicus brief in support of the Tenafly eruv. Contact Roberta Elliott, director, at the National Public Affairs Department, 212-303-8153, relliott@HADASSAH.org.
• The New York-based American Jewish Committee works to advance religious, ethnic and racial understanding worldwide. It filed an amicus brief supporting the Tenafly eruv. Contact 212-751-4000.

OTHER CASES
• A synopsis of laws and legal arguments governing the public display of religious symbols is offered on a personal web page on the University of Rhode Island's site.
• Deborah Jacobs of the ACLU of New Jersey points to two previous eruv cases in that state, cited at jlaw.com. They are ACLU of New Jersey vs. City of Long Branch and Smith vs. Community Bd. No. 14.

Other background
• Though most people don't know it, eruvin exist in most communities where there is a significant Orthodox Jewish population. For example, the U.S. Supreme Court, the White House and the U.S. Congress all are in an eruv. See a map from the George Washington University Hillel. See a map from the George Washington University Hillel.
• Very specific tenets of Jewish law dictate the terrain and circumstances in which an eruv may be established. They are created by installing strips of hard plastic (lechis), like the plastic covering ordinary ground wires, on existing utility poles. The strips, together with existing utility lines, create the eruv boundary. The boundary must be unbroken, requiring weekly examinations before each Sabbath and announcements on the status of the eruv at synagogue or through other community means.
• According to Orthodox Jewish law, there are 39 so-called "creative labors" that must be avoided on the Sabbath, including cooking, building and kindling a fire. Adapted to 20th-century life, this last provision precludes driving a car or switching on or off any electrical item. "Carrying" certain things from a private space to a public space is prohibited, including toting bags or infants or pushing a stroller or wheelchair. That's why eruvin are prized among young, observant families and those with elderly or disabled members. Without eruvin, Shabbat-observant families are homebound. The practicalities of eruv law are explained in the Los Angeles Eruv Guide. Do's and don'ts of eruvs are outlined (for example, baby carriages, strollers, canes, walkers and wheelchairs are OK, as are carrying food, handkerchiefs, gloves, rain hats, house keys, prayer books and medicines. However, using an umbrella, bicycle, scooter or roller skates is forbidden.)
• Daniela Grunfeld, a New Yorker and Orthodox Jew, explains that the Sabbath is reflection of the world to come. The prohibition against carrying certain things on that day is a reminder that God is the creator - not humans, despite their pride in their creative genius during the week. The goal on Shabbat, she says, is to be, not to have; it is practice for the day when each person must leave the world empty-handed.
• The Valley Eruv Society in Southern California's Eastern San Fernando Valley maintains that an eruv there has made the area so attractive to Orthodox families that "real estate salespeople use the phrase 'within the eruv' as a standard description for listings of homes."
• Read an article posted on New York City Atheists explaining eruvin as an unbroken religious enclosure marked by attaching cords or plastic strips, often to utility poles, to extend the Talmudic definition of a Jewish "private domain" in which observant Jews may carry items on the Sabbath and other holidays.
• Read a Torah essay, "Eruvin in Modern Metropolitan Areas," by Yosef Gavriel Bechhofer (published by The Hebrew Theological College Press, 7135 N. Carpenter Rd., Skokie, IL 60077, 847-982-2500).
• Read a 2001 article in The (Jewish) Forward that says liberal Jews cross religious lines to support Orthodox on the eruv issue.