will continue to observe the Sabbath as they have all their lives and as they would without an eruv. The eruv merely permits them to participate in such secular activities as pushing a stroller or carrying a book while observing the Sabbath.
Under the Lemon test the defendants must also show that the city's resolution does not advance any particular religion. As noted above the existence of the eruv does not impose the Jewish religion on other residents of Long Branch, it merely accommodates the religious practices of those residents who are observant Jews. Since it is permissible to construct houses of worship on public land at an airport to enable travelers and airport employees to practice their religions, it is certainly permissible to unobstrusively demarcate an area as an eruv to permit observant Jews to engage in secular activities while they practice their religion. See Brashich v. Port Authority of New York and New Jersey, 484 F. Supp. 697 (1979), aff'd. 791 F.2d 224 (2d Cir. 1980); see also O'Hair v. Andrus, 198 U.S. App. D.C. 198, 613 F.2d 931 (D.C. Cir. 1979) (Permissible to allow Pope to hold service on public property and for city to provide police, fences, barriers and utilities). While governments may provide some services and access to public property to enable individuals to enjoy the free exercise of religion, governments cannot construct religious symbols. The City of Long Branch may allow the Congregation to delineate an eruv; however, the City of Philadelphia cannot pay for the construction of a platform and a 36 foot-high cross for the Pope to conduct mass. Gilfillan v. City of Philadelphia, 637 F.2d 924 (3d Cir. 1981), cert. denied, 451 U.S. 987, 68 L. Ed. 2d 845, 101 S. Ct. 2322. In Gilfillan the objects were constructed at the city's expense and were not only actual religious objects but were also used in the religious ceremony which took place.
In the case now before this court no religious symbol has been erected. As Rabbi Roth, of the Congregation Brothers of Israel, testified before this court the eruv itself has no religious significance or symbolism and is not part of any religious ritual. The eruv is basically invisible to Long Branch residents as it utilizes existing poles and wires with the addition of wooden half-rounds attached to the sides of the poles. The two additional poles and the fence extension will not significantly alter the existing environment. Having examined pictures of the eruv boundaries, the court finds that the boundaries are invisible in that they look just as they looked prior to being designated as the eruv's boundaries. The eruv sends no religious message to the rest of the community. Its existence could not be discerned by anyone who has not been shown the boundaries. An eruv does not in any way force other residents to confront daily images and symbols of another religion. As the court noted in Smith v. Community Board No. 14, 128 Misc. 2d 944, 491 N.Y.S. 2d 584, 587 (Sup. 1985), aff'd. 133 A.D. 2d 79, 518 N.Y.S. 2d 356 (1987), accommodating the religious customs of one group by permitting the creation of an eruv does not necessarily advance any one religion as proscribed by the Lemon test. As long as there is no evidence that Long Branch has refused to accommodate other religious groups and since the city will spend no money on the eruv, permitting the eruv is an acceptable accommodation and does not improperly advance religion.
Finally, the court must ask whether the actions by the City of Long Branch permitting the demarcation of the eruv constitute an excessive entanglement with religion. In order to make this determination we must review "the character and purpose of the institutions that are benefited, the nature of the aid that the state provides, and the resulting relationship between the government and the religious authority." Lemon v. Kurtzman, 403 U.S. at 615. Permitting the demarcation of the eruv enables observant Jews who reside in the area to engage in some secular activities on the Sabbath. The existence of the eruv does not provide improper benefit to a religious institution. The aid provided by the government in this instance is de minimus. The city permitted the Congregation to erect two utility poles, lengthen a fence pole and extend a fence. All the work will be done at the Congregation's expense. The city is expending no funds on the project. It has provided no aid other than the passage of the resolution permitting the boundary of the eruv to be delineated. The ACLU had not shown that the resulting relationship between the government and the religious group violates the First Amendment. The synagogue is not being given any power by the city. It has been given permission to construct two poles, lengthen a pole and extend a fence. It has no authority to do anything other than this small bit of construction. The Congregation has no power to make decisions on matters that are within the governmental domain. Unlike in Larkin v. Grendel's Den, Inc., 459 U.S. 116, 74 L. Ed. 2d 297, 103 S. Ct. 505 (1982), in the instant case there is no indication that an improper assignment of governmental authority to a religious group has been made.
Furthermore, the Congregation is responsible for maintaining and insuring the objects it erects. The fact that the city may find it necessary to ascertain that the items are being maintained correctly does not constitute improper aid or entanglement, rather it is similar to the state's burden of ascertaining whether tax-exempt property is being used for religious purposes. Lemon, at 614. There is no reason why "detailed monitoring" and "close administrative contact" will be necessary. See Aguilar v. Felton, 473 U.S. 402, 414, 87 L. Ed. 2d 290, 105 S. Ct. 3232 (1985). The existence of the eruv will not cause "a kind of continuing day-to-day relationship which the policy of neutrality seeks to minimize." Aguilar, 473 U.S. at 414 (quoting Walz v. Tax Commission, 397 U.S. 664, 674, 25 L. Ed. 2d 697, 90 S. Ct. 1409 (1978)). Although the initial proposal for the eruv raised some problems that necessitated a number of meetings between city officials and representatives of the Congregation, now that a very simple final plan has been developed there is no reason why that type of interaction should continue. In fact, in the future it would appear that contact between the Congregation and the city regarding the eruv would be minimal.
Although the synagogue's initial proposal which involved erecting some fifty or sixty additional poles engendered some disputes within the community, the court sees no indication that the existence of the eruv under the current plan will cause the kind of continuing political divisiveness within the community anticipated by the Supreme Court in Lemon. 403 U.S. at 622. In all probability residents other than those who actively participated in the initial debate and those observant Jews who are provided with a map of the eruv's boundaries will never see the eruv nor will they be able to discern its boundaries. Their own freedom to practice their religion or not to practice any religion will not be interfered with at all. The court finds that no violation of the First Amendment to the Constitution has been stated.
Plaintiffs also argue that the actions of the City of Long Branch are in violation of Article 1, paras. 3 and 4 of the New Jersey Constitution. Both of these provisions prohibit the establishment of religion and protect the individual's right to freedom of religion. In cases concerning whether a governmental action violates the state constitution's prohibition on the establishment of religion, the New Jersey Supreme Court has held that it will apply the federal standard as enunciated by the United States Supreme Court. Right to Choose v. Byrne, 91 N.J. 287, 313-14, 450 A.2d 925 (1982). As this court has already applied the Lemon test as set forth by the United States Supreme Court and concluded that the permission to create an eruv does not violate the establishment clause of the First Amendment to the United States Constitution, we now conclude that the City of Long Branch's actions do not violate the establishment prohibitions found in Article 1, paras. 3 and 4 of the New Jersey Constitution.
As no violation of the First Amendment to the United States Constitution has been stated and no violation of Article 1, paras. 3 and 4 of the New Jersey Constitution has been shown, the court will grant the defendants' motion for summary judgment. The court will deny plaintiffs' motion for a preliminary injunction. The court will enter its own order.
This matter having been brought before the court on plaintiffs' motion for a preliminary injunction and defendants' motion for summary judgment, the court having considered the submissions of the parties and having heard the arguments of counsel and for good cause shown:
It is on this 22nd day of September 1987,
ORDERED that plaintiffs' motion for a preliminary injunction be and hereby is denied; and
ORDERED that defendants' motion for summary judgment be and hereby is granted.
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