IN THE
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

_____________

No. 01-3301
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TENAFLY ERUV ASSOCIATION, INC., CHAIM BOOK, YOSIFA BOOK, STEPHANIE DARDUCK GOTLIEB and STEPHEN BRENNER,
Plaintiffs - Appellants

v.

BOROUGH OF TENAFLY, ANN MOSCOVITZ, individually and in her official capacity as Mayor of the Borough of Tenafly, CHARLES LIPSON, MARTHA B. KERGE, RICHARD WILSON, ARTHUR PECK, JOHN T. SULLIVAN, each individually and in their official capacities as Council Members of the Borough of Tenafly,
Defendants - Appellees.
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BRIEF OF AMICI CURIAE UNION of ORTHODOX JEWISH CONGREGATIONS of AMERICA, AMERICAN JEWISH COMMITTEE, HADASSAH, RABBINICAL COUNCIL of AMERICA, ANTI-DEFAMATION LEAGUE, and COMMISSION on SOCIAL ACTION of REFORM JUDAISM IN SUPPORT OF APPELLANTS
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TABLE OF CONTENTS

INTEREST OF THE AMICI...................................................................... 1

PRELIMINARY STATEMENT................................................................. 4

ARGUMENT............................................................................................. 5

I.          BOROUGH OF TENAFLY’S DENIAL OF PERMISSION TO UTILIZE ITS RIGHT-OF-WAY FOR THE ERECTION OF AN ERUV  CONSTITUTES A DENIAL OF APPELLANTS’ FREE EXERCISE OF RELIGION BY THE FIRST AMENDMENT
AND SHOULD BE SUBJECTED TO STRICT SCRUTINY

A. An eruv is a core element of the constitutionally Guaranteed right of the Free Exercise of Religion For Sabbath observant Orthodox Jews in the United States........................................... 5

B. Tenafly’s denial of permission to affix plastic strips to utility poles for the purpose of an eruv while permitting such strips, and other items, to be placed upon utility poles for other purposes fails to withstand a review under a strict scrutiny standard ..................8

II.         GOVERNMENTAL ACCOMMODATION OF RELIGIOUS
OBSERVANCE IS NOT BARRED BY THE ESTABLISHMENT CLAUSE...............................................................................10

CONCLUSION............................................................................... 15

STATEMENT OF CONSENT

Amicus Union of Orthodox Jewish Congregations has obtained the consent of counsel for Appellants and Appellees to file this brief in support of Appellants. Copies of the letters of consent are appended to this brief.

The Union of Orthodox Jewish Congregations of America ("UOJCA") is the largest Orthodox Jewish umbrella organization in the United States. The UOJCA represents nearly 1,000 synagogues throughout the United States, which collectively represent hundreds of thousands of individual Jews. Among its activities, the UOJCA participates in various federal and state litigations, largely through the submission of amicus briefs that relate to matters of concern to the Orthodox Jewish community. 

The UOJCA has a significant interest in the questions presented in this case because this court's ruling will have without question a profound impact upon the ability of the Orthodox Jewish community to grow, flourish and enjoy the full benefits and freedoms afforded by the United States to its citizens - particularly the freedom to practice the religion of one's choosing in any part of this country. A majority of our constituent synagogues and their members live in communities where an eruv -- a key instrument facilitating the ability of Orthodox Jews to gather in synagogues for Sabbath worship -- has been constructed. Therefore, the UOJCA submits this brief to offer its views and the support of other American communities of faith in this case. 
The American Jewish Committee ("AJC"), a national organization of over 100,000 members and supporters, was founded in 1906 to protect the civil and religious rights of Jews. AJC believes that the erection of an eruv, which critically affects the ability of Orthodox Jews to live in a particular community, does not violate the First Amendment's Establishment Clause. Furthermore, AJC is concerned that opposition to an eruv may be motivated by prejudices against Orthodox Jews that would be unacceptable against other minorities.

The Anti-Defamation ("ADL") was organized in 1913 to advance good will and mutual understanding among Americans of all creeds and races, and to combat racial and religious prejudice in the United States. ADL has always adhered to the principles that the above goals and the general stability of democracy are best served through the separation of church and state and the protection of the rights to free exercise of religion. ADL is able to bring to the issues raised in this case the perspective of a national organization dedicated to safeguarding all persons' religious freedoms.

The Commission on Social action of Reform Judaism ("CSA") is a joint instrumentality of the Union of American Hebrew Congregations ("UAHC") and the Central Conference of American Rabbis ("CCAR"). The 906 congregations of the UAHC encompass 1.5 million Reform Jews, and the membership of the CCAR includes 1,700 Reform rabbis. The CSA establishes policy for the Religious Action Center of Reform Judaism, an office in Washington, D.C. established to advocate for social and political policy in keeping with Jewish law and theology as understood by Reform Judaism. As Jews, we have long shared in America's unparalleled tradition of religious freedom. After centuries of harassment and persecution in every corner of the globe, we understand and appreciate the tremendous gift that America's tradition of religious freedom has been to people of faith for more than two centuries. Jewish ethics support the struggle to safeguard civil and religious liberties and to speak out with courage for their preservation for all religions, whether the majority or minority. The UAHC, the CCAR and the CSA have long urged Congress, the Courts and local officials to protect the fundamental religious freedoms of all Americans and will continue to do so.

Hadassah, the Women's Zionist Organization of America Inc., is the largest women's organization and the largest Jewish membership organization in the United States, with over 300,000 members nationwide. Founded in 1912, Hadassah is traditionally known for funding and maintaining health care institutions in Israel. However, Hadassah also has a proud history of protecting the rights of the Jewish community in the United States. Hadassah has long been committed to defending the constitutional guarantee of free exercise of religion. Hadassah's members come from all streams of Judaism, and Hadassah supports accommodations that will allow them to freely practice their religion.

The Rabbinical Council of America is the largest rabbinical organization in the world with a membership in excess of 1,000 rabbis serving in synagogues, educational institutions, hospitals and other institutions. Many of the Council's members live and work in communities where an eruv has been erected and would be directly affected by a ruling in this case.

PRELIMINARY STATEMENT

ARGUMENT

I. BOROUGH OF TENAFLY'S DENIAL OF PERMISSION TO UTILIZE ITS RIGHT OF WAY FOR THE ERECTION OF AN ERUV CONSTITUTES A DENIAL OF APPELLANTS' FREE EXERCISE OF RELIGION GUARANTEED BY THE FIRST AMENDMENT AND SHOULD BE SUBJECTED TO STRICT SCRUTINY.

A. An Eruv is a core element of the constitutionally guaranteed right of the Free Exercise of Religion for Sabbath observant Orthodox Jews in the United States.

As is well known to this court and indicated by many of the precedential cases that will be discussed in this case, the legal protection afforded by federal courts to the free exercise of religion has been undergoing an intensive period of adjustment and readjustment over the past decade. This activity surrounding what has often been called America's "first freedom" was set in motion by the U.S. Supreme Court's startling decision in the 1990 case of Employment Division v. Smith, 494 U.S. 872 (1990). There, the Court jettisoned the widely understood position that religious liberty, like other fundamental liberties, would enjoy the highest standard of constitutional protection in the face of government infringement. For the first time, the Court ruled that a law or regulation that infringed upon religious exercise need not serve a compelling state interest by the means least restrictive to religious liberty, but only required a rational basis and an absence of anti-religious intent. 

Amici, and a host of other supporters of religious liberty in the United States reacted to the Supreme Court's retrenchment of this fundamental freedom by working with the United States Congress to pass the Religious Freedom Restoration Act, 42 U.S.C. §2000bb, a measure designed to reinstate the pre-Smith standard of protection for religious exercise. That measure too was reviewed by the Court, and was struck down in City of Boerne v. Flores, 521U.S.507 (1997), principally on the grounds that congress lacked sufficient constitutional power to enact the statute, at least with regard to the states. We again worked with the Congress to reinstate protections of religious liberty. As a result, the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc, was enacted last year. "RLUIPA" reinstates the strict scrutiny standard insofar as land use and zoning ordinances are utilized in a manner that restricts religious exercise. 

In the United States Senate's consideration of the legislation, the measure's sponsors - Senators Orrin Hatch and Edward Kennedy - articulated a critical insight that is fundamental to this court's examination of the instant case; specifically that "[t]he right to assemble for worship is at the very core of the free exercise of religion." 146 Cong. Rec. S.7774-01. Even in its rejection of the previously prevailing standard of deference to religious exercise, the majority in Smith recognized that the exercise of religion "often involves not only belief and profession, but the performance of… physical acts, [including] assembling with others for a worship service." 494 U.S. at 877. This is especially true with regard to Sabbath worship in the Orthodox Jewish tradition and why an eruv is integral to the free exercise of this faith tradition.

Orthodox Jewish observance requires Jews to gather as a group for prayer. Without a quorum of ten males above the age of thirteen, Orthodox Jewish law will not permit the recital of certain prayers nor the public reading of the Torah (Bible) scroll. This last point is particularly relevant to the instant case and the need for an eruv. In the Orthodox tradition, the entire Torah is divided into weekly portions which are read publicly from a handwritten scroll, in the synagogue, each Sabbath as part of the prayer services. One who is unable to attend synagogue on a particular Sabbath will not only be unable to recite the prayers which require a quorum, but fail to participate in the communal reading of that week's Torah portion for that year's cycle.

As important as communal prayer and Torah readings are in Orthodox Jewish law, they do not allow for the violation of the Sabbath. Thus, for example, an Orthodox Jew may not drive a car to the synagogue for the sake of these rituals. Another provision of Orthodox Jewish law prohibits carrying or pushing objects from private property to public property, and vice versa, unless it is done so within a geographic domain defined by an eruv. Thus, the inability to construct an eruv restricts the ability of families with small children (who would use baby-strollers) or the physically disabled (who would use wheelchairs) from being able to attend synagogues and fulfill their ritual obligations of Sabbath study and prayer. See Affirmation of Rabbi Hershel Schachter, Joint App. A168-169. 

In the context of this case, therefore, it is clear that without becoming entangled in the details of the laws and rituals of Orthodox Jewish prayer and Sabbath observance, one can readily come to a few simple conclusions: First, that congregational worship is a core element of the constitutionally guaranteed free exercise of religion; second, that religious exercise in the Orthodox Jewish tradition necessitates congregational worship for its fullest expression; third, that in order for all members of an Orthodox Jewish community to be able to engage in such worship on their Sabbath in a manner consistent with their laws, an eruv is a religious necessity. Thus, by refusing permission to construct an eruv, the Borough of Tenafly is infringing upon the Free Exercise rights of the Orthodox Jews of Tenafly - something the Borough may not do absent a legal requirement to the contrary.

B. Tenafly's denial of permission to affix plastic strips to utility poles for the purpose of the eruv while permitting such strips, and other items, to be placed upon utility poles for other purposes fails to withstand a review under a strict scrutiny standard.

The Free Exercise Clause of the First Amendment, which has been made applicable to the states by the Fourteenth Amendment, Cantwell v. Connecticut, 310 U.S. 296, 303 (1940), provides that "Congress shall make no law…prohibiting the free exercise" of religion. U.S. Const. Amend. I. As this Circuit has previously noted: 

For many years, the Supreme Court…interpret[ed] the free exercise clause as requiring the government to make religious exemptions from neutral, generally applicable laws that have the incidental effect of substantially burdening religious conduct…. In these cases, the Court required the government to meet "strict scrutiny" when application of a given law or regulation served to impose a substantial burden on religious activity."

In 1990, however, the legal landscape changed dramatically when the Supreme Court handed down its decision in Employment Div. v. Smith, 494 U.S. 872 (1990)…. [T]he Court concluded that "the right of free exercise of religion does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes)."

Fraternal Order of Police v. Newark, 170 F.3d 359, 362 (3rd Cir., 1999)(citations omitted). Were Appellants seeking an exemption from a general, religion-neutral rule prohibiting a particular activity on the grounds that it infringed upon their religious exercise, they would be hard-pressed to obtain a favorable ruling even under the Smith standard. 

However, as this court has also previously recognized, a government refusal to make a religious exemption from an otherwise neutral policy when it makes secular exemptions to that policy must still withstand judicial review under a strict scrutiny standard. "The [Supreme] Court [maintained] this understanding of its religious exemption jurisprudence, and applied it… in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 537-38 (1993)." F.O.P. v. Newark, at 364. 

There are a sufficient number of examples in the record below of cases where other "secular items" have been affixed to utility poles in Tenafly's right-of-way so as to bring its denial of permission to the eruv's materials within the ambit of strict scrutiny. The court below noted, but dismissed, instances where the Chamber of Commerce had placed December holiday decorations on the utility poles, citizens tied ribbons upon the poles to protest school regionalization, homeowners had posted their address numbers and two churches had placed directional signs on the poles. 155 F.Supp.2d 1t 176-178. All these examples, and the fact that the plastic strips which the eruv would utilize are identical to those used by the utility companies themselves for their needs, require that Tenafly's denial of permission to Appellants being subjected to strict scrutiny review. And just as the Court in Lukumi rejected the assertion that the city could permit the slaughter of animals for secular purposes while banning their slaughter for religious purposes, Tenafly may not permit certain objects to be placed in its right-of-way for secular purposes and deny the placement of those same kinds of items solely because they will be serving a religious purpose.

II. GOVERNMENTAL ACCOMMODATION OF RELIGIOUS OBSERVANCE IS NOT BARRED BY THE ESTABLISHMENT CLAUSE.

In its ruling in this case, the District Court declined the invitation of one amicus, ACLU of New Jersey, to determine whether the U.S. Constitution's Establishment Clause barred Tenafly from granting permission to erect the eruv and stated that it need not reach this question. 155 F.Supp2d at 185, footnote 28. Because Tenafly officials claimed that the perception of government endorsement of religion was a motive for denying permission to Appellants, see, 155 F.Supp2d at 184 (quoting Affidavit of Councilman Sullivan), and that Establishment Clause concerns lurk in the background of any legal consideration of transactions between public and religious entities, amici feel compelled to state our position on this question.

The Supreme Court has clearly stated "Our cases leave no doubt that in commanding neutrality the Religion Clauses do not require the government to be oblivious to impositions that legitimate exercise of state power may place upon religious…practice." Bd. of Educ. of Kiryas Joel v. Grumet, 512 U.S. 687, 705 (1994) and that "government may (and sometimes must) accommodate religious practices and…may do so without violating the Establishment Clause." Hobbie v. Unemployment App. Comm'n, 480 U.S. 136, 144-145 (1987). See also, Corp. of Presiding Bishop v. Amos, 483 U.S. 327, 334 (1987); Walz v. Tax Comm'n, 397 U.S. 664 (1970); McConnell, Accommodation of Religion 1985 S.Ct. Rev. 1, 3-4 (defining accommodation as government action "specifically for the purpose of facilitating the free exercise of religion.") 

Governmental accommodation of religion may take one of two forms: the exemption of a religious entity or individual from an otherwise neutral regulation that interferes with religious practice (what might be called "passive accommodation"), or the government affirmatively acting, albeit in a religion-neutral fashion, to avoid the burdening of religious practice ("active accommodation"). One may find instances in which courts have upheld both of these forms of accommodation and rejected claims that they constitute violations of the Establishment Clause.

In the more common realm of passive accommodation, one finds Supreme Court precedents such as Corp. of Presiding Bishop v. Amos, 483 U.S. 327 (1987)(Upholding religious institution exemption to Civil Rights Act prohibition against hiring discrimination based upon religion.), Hobbie v. Unemployment Appeals Comm'n of Florida, 480 U.S. 136 (1987)(Reversing denial of religious exemption for unemployment compensation criteria), and Walz v. Tax Comm'n, 397 U.S. 664 (1970)(Upholding property tax exemption for religiously owned land). 

More recently, this Circuit recognized how the Free Exercise Clause might compel government's passive accommodation of religious practice by upholding the right of Muslim policemen in Newark, New Jersey to maintain their beards despite a police department "no-beard policy" and stated no concern whatsoever for the Establishment Clause's demands. F.O.P. Newark v. City of Newark, 170 F.3d 359 (3rd Cir., 1999). 

Active accommodation by government of religious practice has found approval in our federal courts as well. In actively providing an accommodation for religious observance the government entity must do so in a manner that simultaneously serves a broader secular purpose so as not to run afoul of the Supreme Court's current Establishment Clause jurisprudence. But it must be recognized that public accommodation of religion is itself a legitimate "secular purpose" for government to undertake, so long as it does so in a fashion that does not constitute the endorsement of religion. 

In the case most directly on point in this controversy, ACLU v. City of Long Branch, 670 F.Supp. 1293 (D.NJ., 1987), the City of Long Branch's grant of permission for the construction of an eruv within its jurisdiction was challenged as an Establishment Clause violation. In rejecting this challenge, the court stated: 

Providing equal access to public facilities to people of all religions and enabling individuals to get to and from their chosen places of worship safely are permissible accommodations by government. 

670 F.Supp. at 1295. The court below avoided the question of an Establishment Clause here, 155 F.Supp.2d at 186, fn. 28, and we urge this court, should it take up this question, to affirm the holding of the Long Branch court and rule that the Establishment Clause does not bar this important accommodation of religious observance. 

Another prime example of legitimate, active accommodation are the instances where government entities establish public holidays and close public offices or schools on days observed by some as religious holy days. At least four federal appellate circuits have addressed this question with regard to public holidays established in the spring to coincide with the Christian observance of Good Friday. Koenick v. Felton, 190 F.3d 259 (4th Cir., 1999); Bridenbaugh v. O'Bannon, 185 F.3d 796 (7th Cir., 1999); Granzeier v. Middleton, 173 F.3d 568 (6th Cir., 1999); Cammack v. Waihee, 932 F.2d 765 (9th Cir., 1991). In each of these cases, the appellate courts rejected Establishment Clause challenges to the scheduled holidays for two primary reasons; the closing of public offices on these days had secular purposes (ie: a high rate of absenteeism on these days by those observing the holy day) and it did not have the primary purpose of advancing or endorsing religion. At the same time it must be recognized that the scheduling of these days off in a particular week of April derives from and necessarily accommodates the religious exercise of public employees. 

Yet another instance where accommodation of religious practice was actively undertaken by the government was in congressional reaction to the Supreme Court's ruling in Goldman v. Weinberger, 475 U.S. 503 (1986). There, the Court rejected an Orthodox Jewish Air Force officer's desire to wear, in conformity with religious obligation, a yarlmuke to cover his head in favor of the military's claim that this apparel would be inconsistent with its need for uniform dress and discipline. In response, Congress passed legislation mandating that the military permit soldiers to wear religious apparel so long as it was neat and did not interfere with the soldiers duties. 10 U.S.C. §774. This active accommodation by the U.S. government of soldiers' religious needs has never been challenged as an Establishment Clause violation, nor was that possible concern raised in the debate prior to its passage. See, 133 Cong.Rec. S12780-01. 

Finally, and ironically, the expectation and allowance for active governmental accommodation of religion was built in to the majority's opinion in Employment Div. v. Smith. After rejecting the sought after exemption from Oregon's ban on the use of peyote, irrespective of whether such use is religious or not, the majority directed those seeking religious accommodations to resort to the political process. 494 U.S. at 890. Still, the Smith majority foreshadowed the unfortunate events that are before this court when it went on to state:
It may be fairly said that leaving accommodation to the political process will place at a relative disadvantage those religious practices that are not widely engaged in…

Id. The nascent Orthodox Jewish community of the Borough of Tenafly is suffering from its political disadvantage and is being denied the ability to grow and flourish under the guise of keeping the right-of-way clear of clutter. Thus, they turn to the judiciary where the vagaries and vulgarities of the political process must often be rectified.

CONCLUSION

For the foregoing reasons, amici curiae urge this court to rule in favor of Appellants and reverse the District Court.

Respectfully submitted,


______________________________
Nathan J. Diament
Union of Orthodox
Jewish Congregations of America
1640 Rhode Island Avenue, NW
Washington, DC 20036
202-857-2770

Attorney for Amici

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