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August 10, 2001


The opinion of the court was delivered by: Bassler, United States District Court Judge.


The individual Plaintiffs and the Tenafly Eruv Association, Inc., wish to maintain a ceremonial religious demarcation, known as an eruv, in the Borough of Tenafly's municipal right-of-way. Specifically, Plaintiffs seek permission to maintain plastic strips, known as lechis, on utility poles in the right-of-way. The Borough of Tenafly, by vote of its Borough Council, denied Plaintiffs' request and ordered that the lechis, which had already been attached to the poles without Borough permission, be removed.

Plaintiffs contend that this denial violated their rights to Free Exercise of Religion and to Free Expression under the First Amendment to the Constitution, and their civil rights as protected by 42 U.S.C. § 1983 and 1985. Plaintiffs do not raise a claim under the Equal Protection Clause of the Fourteenth Amendment. Plaintiffs do claim that the Borough Council violated their rights under the Fair Housing Act, 42 U.S.C. § 3604(a). Plaintiffs now seek to enjoin Defendants from removing the lechis.


A. Procedural History

On December 15, 2000 Plaintiffs Tenafly Eruv Association, Inc., Chaim Book, Yosifa Book, Stefanie Dardick Gotlieb, and Stephen Brenner (collectively "TEAI" or "Plaintiffs"), filed a complaint with the Court, alleging violations of the First and Fourteenth Amendments to the United States Constitution, 42 U.S.C. § 1983 and 1985, and the Federal Fair Housing Act ("FHA") 42 U.S.C. § 3604.

In addition to damages, Plaintiffs sought entry of an Order to Show Cause why a preliminary injunction should not be issued, and for the imposition of temporary restraints. Plaintiffs sought to preliminarily enjoin Tenafly or anyone acting in concert with the town from removing or otherwise disturbing the lechis that delineate the boundary of the eruv.

By consent of the parties, temporary restraints were continued and the preliminary injunction hearing postponed to allow time for limited discovery. Once the parties had completed limited discovery, the Court held an evidentiary hearing, which took place on four separate days during April and May of 2001. After a period for the submission of additional briefing and factual affidavits, the Court heard oral argument on July 19, 2001.

This Opinion is based on evidence developed at the evidentiary hearing and on evidence submitted by affidavit. The Court has also relied upon the exemplary briefs prepared by Plaintiffs, Defendants, and the American Civil Liberties Union ("ACLU")*fn1 of New Jersey. This Opinion contains the Court's findings of fact and conclusions of law pursuant to Rules 52 and 65 of the Federal Rules of Civil Procedure. To the extent that any of the findings of fact might constitute conclusions of law, they are adopted as such. Conversely, to the extent that any conclusions of law constitute findings of fact, they are adopted as such.

B. EruvBackground

1. EruvsGenerally

An eruv is a ceremonial demarcation of an area, which has its roots in Jewish Law. According to one of Plaintiffs' experts:

the institution of the eruv has been practiced by the Jewish people for over 2,000 years. It is based on principles derived from the Bible which are developed in the Talmud and codified in the Codes of Jewish Law. . . . [T]here is an entire tractate of the Talmud which deals with the subject.

(Rabbi Schachter Aff. ¶ 3.)

In the most rudimentary terms, Orthodox Jews believe that Jewish Law bars them from lifting, carrying, or pushing objects (i.e. pushing a wheelchair or carrying an infant) beyond the confines of their homes on the Sabbath. For those who acknowledge its legitimacy, the eruv creates a legal fiction, which converts the public domain to a private domain, solely for purposes of lifting, carrying, or pushing on the Sabbath. This allows those who acknowledge the legitimacy of the eruv to engage in activities on the Sabbath that are otherwise prohibited by Jewish Law.

The Court adopts the following uncontested definition of an eruv:

An eruv, under Jewish law, is an unbroken physical delineation of an area. In tangible terms, it is a defined area created from either natural barriers or artificial means, such as from wires strung across poles. The boundaries of the eruv must resemble a series of doorways. In this case the eruv consists of existing horizontal wires and vertical black rubber coated casings, known as "lechis," which serve as the sides of the symbolic "doorway."
The eruv permits those Orthodox Jews who acknowledge the legitimacy of the eruv under Jewish Law to carry or push objects from their residences, i.e. private property, onto other private or public property and vice versa on the Jewish Sabbath and Yom Kippur. These are activities that Orthodox Jews believe are prohibited by Jewish law on the Sabbath and Yom Kippur absent the legal fiction of a private domain.

(Shapiro Second Suppl. Cert. Ex. H; Defs.' Proposed Findings of Fact at 6-7.)*fn2

Defendants submit that the definition of an eruv is not complete without an additional paragraph:

In order to create an efficacious eruv under Jewish law, persons creating the eruv must rent the enclosed public and private property for valuable consideration from a government official authorized to control the enclosed area.

(Defs.' Proposed Findings of Fact at 7.) While Defendants contend the paragraph describes a "basic fact that is fundamental to the definition of an eruv," (Id.), Plaintiffs object on grounds that the paragraph does not define what an eruv is, and that it is misleading absent extensive additional language. (Shapiro Second Suppl. Cert. ¶ 10.)

Certainly a ceremonial governmental proclamation, conveying some sort of governmental recognition of the area encompassed by an eruv, is a factor in establishing an eruv. This conclusion is supported by Plaintiffs' efforts to obtain such a proclamation first from the Borough of Tenafly, and then from Bergen County. (See Opinion Section I(C)(3), infra.) Nevertheless, Defendants' definition is misleading to the extent it does not make plain the narrow, legally fictive nature of the rental proclamation.

Additional reconciliation of the competing definitions of an eruv is not critical to resolution of the issues pending before the Court. Because the ceremonial proclamation issued in this dispute by Bergen County Executive William P. Schuber on December 15, 1999 is referred to frequently by the parties and is demonstrative of the general nature of such proclamations, the Court reproduces it in its entirety:


WHEREAS, in accordance with the Jewish Orthodox faith the law of the Sabbath contains commandments prohibiting the pushing and carrying of articles on the Sabbath and other Jewish holy days in the public domain except within certain specified conditions; and
WHEREAS, the delineation of an eruv and its construction creates the legal fiction of a private domain in which observant persons of the Jewish faith are permitted to carry or push objects from place to place within the defined area during the Sabbath and other holy days; and
WHEREAS, the office of the Bergen County Executive has been petitioned by the Tenafly Eruv Association, Inc., on behalf of those of the Jewish faith who reside within the County of Bergen, bounded by Booth Avenue and Tenafly Road in Englewood; the Borough of Tenafly; Madison Avenue, Knickerbocker Road and Truman Drive in Cresskill; to rent according to Jewish law, to the Tenafly Eruv Association, Inc, for a period of 30 (thirty) years at a rental rate of one dollar ($1.00), in hand paid, the rights to the aforesaid area for the sole purpose of carrying and/or pushing articles on the Sabbath and Jewish holy days; and
WHEREAS, the office of the Bergen County Executive deems it to be in the public interest of those of its residents for whom the petition has been presented be granted the rights described in the petition; Now therefore,
I, WILLIAM P. SCHUBER Executive of the County of Bergen, New Jersey do hereby proclaim Wednesday, December 15, 1999 as,


The said eruv shall not be valid or binding for any other purpose and this proclamation creates no rights, duties or obligations enforceable in any court whether in law or in equity. This proclamation shall not diminish, increase or affect any other rights granted under New Jersey law, nor shall it be deemed to authorize any physical construction that would otherwise require permission from any local municipal, county or state boards.

(Pls.' Ex. 18, hereinafter the "Bergen Proclamation.")

The Bergen Proclamation is typical of the ceremonial proclamations establishing eruvs in other municipalities, such as: Washington, D.C.; Philadelphia, Pennsylvania; Baltimore, Maryland; Cincinnati, Ohio; Charleston, South Carolina; and Jacksonville, Florida. (Proclamations attached to Chaim Book Cert. as Ex. B.)

All of these proclamations delineate the geographic area that will be bounded by the eruv, and rent that area to the group seeking to establish the eruv for the sum of $1.00. (See id.) All of the proclamations also clearly state that the rights to the domain encompassed by the eruv are conveyed for the sole or limited purpose of pushing and carrying on the Sabbath and other Jewish holy days. (See id.)

Separate from their disagreement about what constitutes an eruv, the parties also disagree about an eruv's significance. Defendants contend that the eruv is a religious symbol. (Tr. of April 25, 2001 Court Hearing ("4/25/01 Tr.") at 13:7.) Plaintiffs, on the other hand, say that it is not a religious symbol, but that it has religious significance. (Id. at 13:11-12.) Again the dispute is not significant for purposes of this Opinion, for even if an eruv is not a religious symbol such as a cross or a menorah, it is sufficient for the Court's analysis to conclude that it has religious significance, as Plaintiffs themselves acknowledge.

In practical terms, according to the testimony of an eruv proponent, while Observant Jews may live in a town without an eruv, it does significantly enhance the practice of their religion. (Test. of Charles Agus, May 1, 2001 ("Agus Tr.") at 122:11-12.) It allows those who recognize it to attend synagogue with their young children in a way that would not be possible without an eruv. (Agus Tr. at 123:22-25.) It would also allow them to visit their friends' homes or visit the park on the Sabbath (assuming those places were located within the confines of the eruv), while carrying objects or pushing a stroller. (Stefanie Dardick Gotlieb Cert. ¶ 5; Yosifa Book Cert. ¶ 5.) Plaintiffs contend that believers in the necessity of an eruv who are presently seeking to move to Tenafly might elect not to do so if the eruv is not permitted. (Stephen Brenner Cert. ¶ 6.)

2. The Eruvin Tenafly

Geographically, the Tenafly eruv encompasses an area roughly bounded to the south by the border with Englewood and to the north by Hudson Street in Tenafly. (12/7/00 Letter from Chaim Book to the Mayor and Council of Tenafly, attached to Shapiro Second Supp. Cert. as Ex. F, at 2.) The eastern boundary of the eruv runs from Berkley Drive to Ridge Road to Woodland Street, in Tenafly. (Id.) The western border is Tenafly Road. (Id.) The area links to an existing eruv in neighboring Englewood, making it possible for eruv-observant Jews to pass into Englewood on the Sabbath while pushing or carrying objects. (Id.) An examination of Joint Exhibit 1, a map of Tenafly delineating the boundaries of the eruv, suggests that 35% to 40% of the Borough of Tenafly is located within the current perimeter of the eruv.

Physically, the Tenafly eruv consists first of the contiguous perimeter of existing, overhead utility lines that run along the streets at the boundary of the eruv. These overhead lines form the "tops" of the symbolic "doorways" as described in Plaintiffs' and Defendants' agreed-upon definition of an eruv. In order to convert these active overhead utility lines into an eruv under Jewish Law, Plaintiffs were required to attach lechis vertically to the utility poles, to form the "sides" of the symbolic "doorways." Lechis were attached to approximately 183 utility poles in Tenafly. (Joint Ex. 2.)

In the Tenafly eruv, each lechi is comprised of the same hard black plastic material as is used by Verizon to cover its ground wires. Plaintiff's Exhibit 34 is an actual section of the lechi material used in Tenafly. It is U-shaped, approximately three-quarters of an inch wide by one-half inch deep. When applied to the poles, the lechi runs vertically from the ground to the top of the utility pole. (Pls.' Exs. 35(a)-(b).)

Unless a person knew which plastic strips had been hung by Verizon, and which had been hung by Plaintiffs, it would be absolutely impossible to distinguish between a lechi and a covered Verizon ground wire. This is demonstrated by Plaintiffs' Exhibits 35(a) and 36(a), photographs that the Court has attached to this Opinion as Appendix A. Exhibit 35(a) pictures a Lechi; Exhibit 36(a) a Verizon ground wire cover. After careful observation, the only difference apparent to the Court is that the Verizon ground wire cover is more weathered than the lechi, presumably because it has been on the pole for a longer period of time.

C. Events Leading to Tenafly's Denial of Permission for the Eruv

The chronology of events leading to the attachment of the lechis to the utility poles in Tenafly's right-of-way and the subsequent denial of the request to leave them in place is largely undisputed. Vehemently contested, however, are the motivations of the individuals involved.

1. Initial Meeting with Tenafly Mayor Ann Moscovitz

The first contact between supporters of an eruv and the Tenafly Borough government occurred on June 1, 1999.*fn3 On that date, Mr. Erez Gotlieb and Mr. Gary Osen met with the Mayor of the Borough of Tenafly, Ann Moscovitz, in her office, to discuss the creation of an eruv to encompass the Borough of Tenafly. (Moscovitz Aff. ¶ 3.) The gentlemen explained the nature and purpose of an eruv, and then sought, in exchange for modest compensation, to have the Mayor issue a ceremonial "rental" proclamation, which would allow the eruv to be created under Jewish law. (Id.)

While the Mayor had no objection at the time, she indicated to Messrs. Gotlieb and Osen that she did not have the authority to grant or deny such a request, and that a formal proposal would have to be made to the Borough Council. (Moscovitz Aff. ¶ 4.) The Mayor agreed to raise the issue at the Council's next work session. (Id. ¶ 5.)

2. The Tenafly Borough Council Work Session of July 8, 1999

As she had told Messrs. Gotlieb and Osen, the Mayor did raise the possibility of erecting an eruv in Tenafly at a Borough Council work session on July 8, 1999. (See July 8, 1999 Borough of Tenafly Work Session Tr. ("7/8/99 Tr."), attached to Shapiro Cert. as Ex. A.) In Tenafly, members of the public are always invited to attend and listen to these Borough work sessions, but are generally not invited to speak. (Moscovitz Aff. ¶ 5; Borough of Tenafly Council Member Charles Lipson Aff. ("Lipson Aff.") ¶ 2.) The Mayor and Council can make exceptions to this rule, and at the July 8, 1999 work session, the Council voted to allow the approximately thirty residents who attended to voice their opinions on the eruv. (Id. ¶ 6.)

At the Work Session, the Mayor advocated the eruv proposal. For example, the Mayor stated that:

[I]t's something that could never [be] seen by anybody[;] [there] is nothing significant about this. Anybody not looking for it would [never] know it was even there. It's not an obvious thing but allows these people to bring their children to temple. That's all. You know, whether it makes sense to you or not is not really important. . . . I mean we don't have to agree with everyone's religion . . .

(7/8/99 Tr. at 2.)*fn4 Shortly thereafter, the Mayor commented:

It's such an innocuous thing. It's something that nobody can see or know that's there. It's a religious thing, and we have a reputation in this town of permitting people to go to whatever church they wish to go to or temple they wish to go to and to bring their children.

(7/8/99 Tr. at 4.) The Mayor stated she "would be very upset if this Council did not permit such a simple request." (7/8/99 Tr. at 5.)

The Work Session did not focus on whether permission should be granted for use of municipal property for an eruv, or whether such permission was required. Instead, the Mayor indicated that "[t]he only reason really that it has to come before us here is because they have to give us something, they have to rent it for the purpose of being an Eruv." (7/8/99 Tr. at 4.) In fact, it appears that the Council's only concern was whether to issue the ceremonial proclamation:

Mayor: It's certainly [not] as obvious as having a creche in Highland Park. You know it's just municipal property. I'm not sure we can even stop them from doing it, but, you know, it's not.
[Lesnevich]:*fn5 You can stop them. They can't force you to rent it to them for a dollar, they can do whatever they want as far as calling it what they want within their concept but they could not force you to sign an ordinance renting it.
Man: I was told they can deal directly with the Cable Company.
[Lesnevich]: If they dealt with the cable company it's nothing you can do about it because Cablevision can do, they have the right to do that.

Man: That was my understanding.

[Kerge]:*fn6 I think the issue really, probably has to do with a recognition, their recognition of their being able to do it. If they can go directly to cable and they don't need to rent, to have any agreement from us, then why not do that. Wouldn't that be easier?
[Lesnevich]: I don't know perhaps. I certainly don't know the answer. Their theology requires that government, governmental entity to give the rental as opposed to a commercial enterprise.

(7/8/99 Tr. at 6-7.)

Notably absent from the Council's discussion was any mention that even if permission were granted by the telephone or cable companies to use the poles, permission would still be required from the Borough to use the municipal right-of-way. As Plaintiffs correctly note, Borough Counsel Walter Lesnevich did not mention that municipal approval would be required not only for issuance of a ceremonial proclamation, but also for use of the Borough's right-of-way. (Chaim Book Cert. ¶ 14.)

For the remainder of the hearing, the Council and public discussed the propriety of issuing the ceremonial "rental" proclamation, and what impact that proclamation and the attendant establishment of an eruv might have on Tenafly. The meeting was contentious, and numerous members of the public voiced their objections to the eruv. The mayor herself was "shocked and dismayed by the reaction of some of the residents present." (Moscovitz Aff. ¶ 6.)

The statements in opposition to the eruv were initially innocuous. For instance, one person who spoke stated:

suppose another religion comes before us and they ask us to allow them to do something that's for their religion. I don't know what that religion could be or what it is, but once we establish the fact that we do something special for one particular sect of a religion we open ourselves to allow, again to allow anybody and use that as a precedent to establish whatever they want to do.

(7/8/99 Tr. at 6.)

Discussions quickly turned away from the precedent that might be set for other groups, and to concerns that had been voiced to the Council by some residents that the establishment of an eruv might lead to the formation of an Orthodox community in Tenafly:

Man:*fn7 . . . Some of my Jewish friends object[] to this very strongly and you know, Jewish faith and tell me why?

Mayor: I have no answer for you.

Man: I've heard why.

Mayor: Why?

Man: They think we're going to turn it into an Orthodox Community.
Mayor: Really? Are we going to become Orthodox because of wires going on the poles?

Man: That's a stretch. That's a real stretch.

Mayor: That's a real stretch. I'm not going to become Orthodox, see?
Man: I'm not impugning any religion at this point in time. I'm not imputing the Orthodox at all, but that seems to be a concern that the Orthodoxy would take over.
Mayor: That's what Adrian Meltzer said I believe when she voted against having the Lubavitch in town in the first place. I think that's a terrible thing to do. I cannot believe it.

(7/8/99 Tr. at 7.)

This theme was echoed by many of those who got up to speak after the work session was opened to the public. For example, one resident stated that an eruv "[i]n essence has the potential for changing the entire character of the community." (7/8/99 Tr. at 9.) He noted that in a community where his brother had lived, after the creation of an eruv "the entire community changed over a period of five to ten years to the point where shopkeepers were ostracized if they kept their shops open on Saturday on the Sabbath." (Id.) The resident continued:

It is not simply a matter of being able to carry your child to the synagogue, they have been able to go to synagogue for five years with nobody interfering. This is something that has considerable implications in terms of changing the social community. It makes it part of their private domain. I personally object to the use of our public property to converting it to canyone's private domain. . . . I just know the social changes as [Councilman Lipson] intimated it is more than this simple innocuous thing. I have no intent in becoming involved in trying to keep out certain religions and this is not a matter of anti-Semitism or keeping out any religion or any church. It's a matter of not allowing any church or any religion to impose their beliefs and their use of our public properties beyond what it should be.

(Id. at 9-10.)

The next resident to speak against the eruv began by echoing concerns that the grant of a ceremonial proclamation to proponents of the eruv might constitute a violation of the separation between church and state. (7/8/99 Tr. at 12.) His comments then shifted to a concern for the community impact of the Borough's decision. He stated:

Well, they start to insist that shops close on Saturday. If they start to try to think of the neighborhood as their sole possession. The attitudes of community change. So, I would say this is not a simple issue about cables on poles. This is much more an issue the character of a community being committed to diversity rather than beginning to be separate sectors supporters of a town. And therefore I very strongly oppose this as a person who absolutely would be there at the drop of a hat to protect their free exercise of religion. This is not about that.

(7/8/99 Tr. at 12-13.)

In response to the comments, the Mayor asked whether there was a concern about the symbolic rental of the town. (Id.) The Mayor noted that while a symbolic rental of Tenafly had concerned her as well:

Having the wires go up and having, symbolically wrap around the town didn't bother me at all because it's something that isn't seen, it isn't an imposition on anybody else, anymore than having a little k with a circle on your margarine is going to make you kosher. . . . The part that really was a concern to me was the word rental. That they were renting the city of Tenafly.


Speakers again reiterated their concern about the eruv's potential to change the community:

I think that Tenafly, that most of us would agree that the community is very diverse, and the people of all nationalities and all religions, I mean, there's no block in town that's like Korean or a Chinese quarter. It's a small town and the beauty of it is the diversity and the richness and that's what I think we're all about. I would worry that by our giving this, we're saying that they have a right to have a community in our community, and our community is so small, it's not like we're so big that they need to congregate in one area. . . . I just don't see a need to give this to them because we're all about diversity and they're free to wherever they want.

(7/8/99 Tr. at 14-15.)

The last member of the public to speak at the work session voiced her thoughts on an eruv's impact on nearby Teaneck, New Jersey. (7/8/99 Tr. at 18-19.) During Tenafly's debates on whether an eruv should be constructed, the social changes in Teaneck were oft-cited worst-case examples of the impact an eruv might have on a community. In the citizen's opinion, the Council should:

Just take a look at what happened in Teaneck. Teaneck was beautiful. I love this area. I've lived here for 65 years. I used to shop in Teaneck when I lived in Englewood. Teaneck had beautiful stores. Almost every store in Teaneck today is geared towards the Orthodox. There is a racial imbalance in the school system in Teaneck because most of the Orthodox children go to Yeshivas and they go to religious ___. Who's left in the Teaneck school system but those children [who] can not afford to go to a private school. There is a serious imbalance there and I have concern that this could possibly happen to Tenafly because the more. . . If this is granted, let's all be honest, more and more Orthodox people are going to move here. The more people that move here, they're not going to buy their meat in the Grand Union, they're going to want to go to Glat Kosher Orthodox store. They're going to be looking to open up businesses in Tenafly. They're going to have the same thing that happened in Teaneck. This is my concern. I have no children in school anymore, but I am concerned about the school system, and I am concerned about what will come in to our local shopping areas. And I think that we should seriously consider this.

(7/8/99 Tr. at 19.)

As the hearing drew to a close, a member of the Council*fn8 implored those present that:

(7/8/99 Tr. at 19.)

At the conclusion of the Work Session, the Council decided without a vote not to pursue the eruv issue unless a formal, written request was made of the Council. (Id. at 21.) At the time this decision was made, members of the Council were aware that Tenafly had been threatened with suit in an unrelated religious matter, and that the ...

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