The next stop for a New Jersey town’s legal battle against an eruv erected by a group of Orthodox residents may be the U.S. Supreme Court.
The Tenafly Borough Council voted 5-1 last week to petition the high court to hear its case against the Tenafly Eruv Association, two months after the 3rd U.S. Circuit Court of Appeals declined to rehear the case.
Tenafly will probably file an extension to submit the petition after the Feb. 20 deadline, a borough attorney said, but the Supreme Court agrees to consider only a small percentage of the cases submitted for review each year.
The council’s vote followed unsuccessful negotiations with the eruv association over the future of the black plastic strips affixed to a few hundred utility poles in the municipality. The wires between the poles create a boundary inside of which observant Jews can carry objects or push a baby carriage on Shabbat.
The issue, according to The Record of Hackensack, N.J., has brought "anti-Semitic and anti-Orthodox tones" during public hearings held over the last two years.
"An anti-Semitic comment was made by someone in the audience" at last week’s council meeting, said Councilman Paul Bernstein, who cast the lone dissenting vote. "Stupid language. And foolish."
Another person at the meeting rose "and said that what that person said was anti-Semitic," said Bernstein, who is Jewish.
While the eruv has vocal supporters and opponents among Tenafly residents, the issue has not made scapegoats of Jews in general or Orthodox Jews in particular, he said.
"I don’t think this brings to the fore latent anti-Semitism," he said.
A lot of the tension in Tenafly, he said, "is between Jews themselves": mostly Orthodox Jews in favor of the eruv and non-Orthodox who are against it.
A Supreme Court decision in the eruv case would clarify the Circuit Court’s vague ruling, said Borough Attorney Bruce Rosen. The ruling involves constitutional provisions against a government’s favoring of a particular religion.
The eruv association’s lawyer, Robert Sugarman, said the council vote would uphold, to the detriment of Orthodox Jews, selective enforcement of a borough ordinance enacted in 1954.
Negotiations between the borough and eruv association over an agreement that would have allowed the eruv to remain and possibly expand while waiving the association’s request for six-figure legal fees have broken off.
"There isn’t a lot of trust" between Tenafly and the eruv association, said Rosen, adding later that "both sides are losing patience."
Rosen blames the eruv association for ending the negotiations. Sugarman disputes that charge, saying his association "went to great lengths to try to settle this case."
Rosen said the Circuit Court’s ruling leaves many questions unanswered about the power the town has over the poles.
"What if someone else wants to put something else up on the poles?" he asked.
The utility poles, on Tenafly property, are owned by Verizon and Cablevision. The eruv association put up the plastic strips, or lechis, two years ago without permission from the borough. Such items as house numbers, church signs and orange ribbons for student protests have been posted on the poles.
The circuit decision could make the 1954 ordinance that prohibits placing signs or advertisements in the public right of way without permission "subservient to the eruv," Rosen said. "You can’t have Jewish law governing secular law."
"A phony issue," said Sugarman. The eruv association had agreed to "acknowledge the borough’s authority over the poles," he said.
The Supreme Court will likely announce later this year if it will review the eruv case; the case would not be heard until sometime in 2004. Meanwhile, the eruv remains in place in Tenafly.