‘Death Knell’ To Anti-Eruv Church-State Argument?
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‘Death Knell’ To Anti-Eruv Church-State Argument?

2nd Circuit's ruling on Westhampton Beach ritual boundary likely to have wide-ranging effects.

Amy Sara Clark writes about politics and education. A Columbia Journalism School graduate, she's worked at CBS News, The Journal News, The Jersey Journal, Mom365, JTA and Prospect Heights Patch. She comes to journalism from academia where she earned a master's degree in European History with a focus on Vichy France.

After six years, the legal battle over an eruv in the Hamptons may finally be coming to a close — and the effects of the federal appeals court decision are far reaching.

On Tuesday, a federal appeals court affirmed a lower court’s decision that the ritual boundary created by attaching plastic strips, called lechies, to utility poles in Westhampton Beach, L.I., does not violate the First Amendment.

“The appeals court is saying that there’s not a problem of church and state separation — it’s a death knell to that argument,” said Moish Tuchman, president of Hampton Synagogue and a member of the East End Eruv Association.

A map of Westhampton Beach's eruv. Courtesy of The Hampton SynagogueThe Jan. 6 decision by the U.S. Court of Appeals for the 2nd Circuit goes well beyond the battle in Westhampton, said Yehudah Buchweitz, an attorney at of Weil, Gotshal and Manges, which is representing the East End Eruv Association on a pro bono basis.

“The assertion that attaching lechies to poles to help make an eruv is a violation of the First Amendment is one of the main defenses that municipalities have against them, and I think this decision effectively eliminates those defenses,” he said. Buchweitz noted that the ruling follows a similar decision by the Third Circuit Court of Appeals in 2002 upholding an eruv in Tenafly, N.J.

Together these two federal appeals courts cover six states — New York, Connecticut, Vermont, New Jersey, Pennsylvania and Delaware — plus the Virgin Islands. But the effects of the decision are even more far reaching, Buchweitz suggested.

“I think if, at this point, you have the 3rd Circuit and the 2nd Circuit having come to the same conclusion — and they’re right — it would be hard for any other court to come to a different conclusion,” he said.

The Second Circuit Court’s decision affirmed the decision of a lower court — the U.S. District Court for the Eastern District of New York — to reject a case brought by the group Jewish People for the Betterment of Westhampton Beach. While the lower court did not explain its reasons for rejecting the case, the Second Circuit Court did, giving as one of its reasons that the lechies are “nearly invisible.”

“No reasonable observer who notices the strips on LIPA utility poles would draw the conclusion that a state actor is thereby endorsing religion,” the three judges wrote in their ruling.

Part of an eruv strung across a traffic light pole on the Upper West Side. YU Museum Show via Tumblr

“Every court to have considered whether similar government actions violate the Establishment Clause has agreed that they do not,” they added.

Attorneys for the Jewish People For The Betterment Of Westhampton Beach did not respond to a request for comment and efforts to reach members of the group have so far been unsuccessful.

Other cases connected to the Westhampton Beach eruv are still pending, but they are unlikely to succeed, said, Buchweitz.

“We think there’s no merit to them, but we haven’t won them yet. There are a few steps to go.”

How has Westhampton Beach’s Orthodox community reacted to the decision?

“They’re really ecstatic,” said Tuchman. “It’s really a huge, huge, huge victory.”’

amyclark@jewishweek.org

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