A religious zone established by Orthodox Jews in Westhampton Beach with the help of utility poles does not violate the separation of church and state outlined in the U.S. Constitution, a panel of federal judges has ruled.From the court's summary order (PDF):
The zone, called an eruv, allows Orthodox Jews to push strollers, carry keys and perform other tasks not otherwise allowed on the Sabbath or on High Holy Days. It has been in place for five months in Westhampton Beach and is marked, in part, by strips of black pipe attached to 45 poles owned by the Long Island Power Authority and Verizon.
An eruv is a “demarcation of a defined geographic area within which adherents subscribing to a certain interpretation of Jewish law believe that they may perform certain activities that are otherwise prohibited on the Jewish Sabbath and Yom Kippur.” Compl. ¶ 19. It is undisputed that the Westhampton eruv was delineated by “nearly invisible” staves and wires attached to utility poles. Compl. ¶¶ 1, 20. Plaintiffs do not allege that these staves contain any overtly religious features that would distinguish them to a casual observer as any different from strips of material that might be attached to utility poles for secular purposes.Is that neutral accommodation? What if members of other religious groups had charms that they wanted to attach to public property to enhance their life in the town — would they receive equal treatment? In Good News Club, the case the court cites, the religious group wasn't seeking a special accommodation, but only to be treated the same as nonreligious groups who were using public school buildings after hours. The school tried unsuccessfully to justify discrimination against religion as way to observe Establishment Clause values. You see the neutrality principle there. In this case, the religious group gets a special treatment, and the court seems only to be saying that there is no evidence that anyone else is asking for the same kind of accommodation and getting refused. That's a different kind of argument.
Plaintiffs have not plausibly pleaded that there was no secular purpose to the governmental action here — LIPA’s entry into a paid licensing agreement allowing the installation of items of religious significance on utility poles. While plaintiffs repeatedly state in their complaint that the establishment of an eruv serves no secular purpose, the complaint does not contain similar allegations with regard to LIPA’s action of permitting the EEEA to attach lechis to its utility poles, and does not allege that LIPA granted access to its utility poles in a non-neutral manner. Neutral accommodation of religious practice qualifies as a secular purpose under Lemon. See, e.g., Good News Club v. Milford Cent. School, 533 U.S. 98, 114 (2001). And other courts have held that absent evidence that the erection of an eruv is facilitated in a non-neutral manner, permitting an organization to attach lechis to utility poles serves the secular purpose of accommodation. See, e.g., Long Branch, 670 F. Supp. at 1295-96.
By the way, it was a Jewish group — Jewish People for the Betterment of Westhampton Beach — that sued the city.
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33 comments:
So help me out hear. Did congress pass this law to established Judism as our National religion?
What if members of other religious groups had charms that they wanted to attach to public property to enhance their life in the town — would they receive equal treatment?
The defendants paid for the services of LIPA.
"The defendants paid for the services of LIPA."
The question asks about "equal treatment."
Does "Shall not be infringed" = "Congress shall make no law"?
Not that I want to see the first amendment only apply to the Federal Govt.
A utility pole owned by the power company is a public space? Am I missing something?
Oy, vey! The Jewish penchant for tolerance swallows its own tochus. Really, the kvetching should stop. I would be delighted to see a large Orthodox Jewish community here in Galveston. They are fine citizens.
"A utility pole owned by the power company is a public space? Am I missing something?"
Yes. From the summary order:
"The... defendant, LIPA, does not dispute that, as 'a political subdivision of the State of New York,' it is a state actor."
Lechi: Strip used to represent a doorpost. Can be made of anything solid from a length of twine to a 2x4 or I-beam. In the Boston Eruv, lechis are usually made of black plastic U-guard, of the type employed by the telephone company for protecting ground wires coming down the side of a utility pole.
An eruv is a “demarcation of a defined geographic area within which adherents subscribing to a certain interpretation of Jewish law believe that they may perform certain activities that are otherwise prohibited on the Jewish Sabbath and Yom Kippur.”
A get-out-of-religion-free zone! How convenient.
Yes, I think it is.
Police often provide escorts for public/private functions, such as funerals, that may have religious components. Signage advertising functions is commonly placed on telephone poles or street lamp stanchions around the country, without payment being transferred. Demonstrators are generally permitted to occupy rights of way wherever no public safety impact is present. I believe that has been adjudicated.
The roads, like the utility poles, are a common good. That this orthodox group found an uncommon use of a public good is less important than the fact that they paid for it.
Special interest groups often pay cities for the use of signs on buses and so forth. I fail to see how this is any different except that in this case, the impact (visual and otherwise) on the broader public is effectively nil.
This is simply the very efficient use of public goods. There's no preference because they paid for it.
If the decision was made on the basis of A) adequate payment for the work performed, and B) no impact upon public services or comfort to others, I think it would be discriminatory to refuse this service due to the religious nature of the group.
Now, there might arguably be some group that wished to put up larger signs or emblems on utility poles that would have a different impact, but I cannot imagine why semi-invisible charms wouldn't receive the same treatment in this municipality.
I would personally be ashamed of any municipality where I were living if it were to refuse such a deal, just as I would be ashamed if the local private high school couldn't get the restricted parking zones and enhanced police presence the local public school gets for its games and common functions.
Utility poles are often used for multiple purposes by multiple private companies - electricity, phones, cable wiring. Why shouldn't they be used this way for payment by such an organization?
Paco - it's not a get-out-of-religion free zone. It's a zone that has a particular religious significance for some groups of Jews. Within this small area, the locals are "at home", and thus allowed to do things like use a wheelchair, a cane, or baby stroller, carry medicines for their own use, etc on the Sabbath.
I think the distinction is that they aren't allowed to take things out of their home for use on the Sabbath, as in, they are not supposed to go to the "marketplace" with them. They can walk to synagogue, but they're not supposed to use a conveyance such as a wheelchair to go out in public. It's because of the prohibition on violating the no-work rules on the Sabbath.
"Where 3 Jews are met, at least 4 different philosophies will be vigorously expounded."
Paco - just so you have a broader scope for your joyous feelings of superiority in relation to others - the prohibition against work on the Sabbath is observed by many Christian groups as well. And any group who does take this prohibition seriously does have a set of rules, formal or informal, about what is and is not work on the Sabbath.
The most common line is that you can do what is necessary for the preservation of life or alleviation of suffering, and that you can respond to emergencies.
So - you can change the baby, but you may not wash the clothes, you can prepare a meal, but not cook meals for the week ahead, you may feed the animals in the barn, or milk them, but you cannot tend to them in other ways that may be deferred, etc.
The point I'm trying to make is that there is no religious community that keeps the Sabbath that doesn't have a set of rules, and the purpose of the rules is not to evade the requirement but to facilitate it.
The fine distinctions inherent in Ann's question in the blog are a feature of all laws seriously taken rather than pettifogging. So yes, it DOES matter whether a community could make a deal to put up religious charms on the utility poles (though would they be near-invisible and durable?). Finding the answer to that question is not nit-picking, but necessary to upholding the law in such cases.
The court could state that it did not widh to be put in the position of settling a religious dispute between two factions of the same faith, especially since there is no evidence the adherents of any other faith, or no faith, has even taken notice of the matter.
Did LIPA create the paid-access program for their poles specifically to support this eruv? If not, I'm having a hard time seeing it as special treatment.
Someone once said "Our culture is freedom and pluralism and the tolerance (if not the celebration) of religious (and other) diversity."
_Who_ are these people who are suing? What possible standing do they have? These inconspicuous black poles that look just like utility company poles are harming them how?
Is their claim that they have a right to feel secure that no religion is being allowed on their local turf; it offends them?
Whole thing sounds repulsive to me. What is the matter with people?
Eruv = Cool Jewish Life Hack!
The "Eruv" concept in brief: Jewish religious stricture has a concept of public space and private space on the Sabbath, and restrictions on carrying in public spaces. Walled off space, aka inside your house/yard, is private space. Space that the public can freely travel through is public space.
Ok, what about a large courtyard or walled city? If it's surrounded and the inhabitants agree, and the traffic through the area is under a certain limit, then it can be considered (shared) private space.
The "Eruv" is a designation of public walls + the addition of poles with strings, creating a virtual wall, turning the area into a 'walled zone' eligible for being 'private space'.
Neighborhoods with such a shared Sabbath private space are preferable for religious Jewish families with children, and for the elderly. Meaning a neighborhood with an eruv draws religious Jewish residents.
If you want to keep religious Jews out of your neighborhood, don't allow an eruv and add zoning to move houses of worship out of walking range (no driving on the Sabbath). Top it off by making repetitive gatherings of large groups in private homes illegal (thereby stopping Jewish prayer services - requiring 10 men - in personal homes).
All these techniques have been used in the past. Here's an example from Airmont, NY.
And yes, it indeed can be that a group of non-practicing / cultural Jews object to an influx of religious Jewish families into their neighborhood. Stop the eruv, slow or stop the influx. (Watch for the zoning regs to come there next.)
Ok, lets say some group gathers in a public space and worships an imaginary tree or something. Can they be sued because the imaginary tree is in a public space?
The state should not be in the electric power business. This is the crazy part of this. The state needs to do only those things the state must do. Power generating is not one of them.
The Milwaukee Jewish Foundation made a similar stink about erecting a sukkah at Nicolet High School this past fall:
"We really value the separation of church and state."
A phrase found nowhere in any of our founding documents.
Which state church is being established by the erection of a hut? None.
By the way, it was a Jewish group — Jewish People for the Betterment of Westhampton Beach — that sued the city.
Man, you just disappointed the hell out of a whole bunch of conservatives who had their atheist-bashing screeds all lined up.
Personally, I looked forward to hearing about Stalin and Mao for the Nth time. :)
Secular or reform Jews. They enjoy the traditional accoutrements and community benefits, but are otherwise detached from the faith and religion. They may as well be atheist, since they share the same faith.
I looked forward to hearing about Stalin and Mao for the Nth time. :)
As I looked forward to hearing about the deaths caused by religion for the Nth time.
"By the way, it was a Jewish group — Jewish People for the Betterment of Westhampton Beach — that sued the city."
Of what significance is it that this suit was brought by a group of ethnically Jewish anti-religious bigots (of whom there are many)?
And what could be the motive for this suit, other than anti-religious bigotry? Putting a string on utility poles does not harm anyone in any way, monetarily or otherwise, nor does it subject anyone to overt religious symbolism in which they don't believe.
If this were an accommodation of an Islamic practice, I doubt very much that anyone would have had the temerity to complain. Certainly not the leftists "People for the American Way" types who brought this frivolous suit. The intolerance of the self-proclaimed "tolerant" secularists is remarkable.
I don't know if they would get it, but if other people (religious groups or otherwise) want similarly unobtrusive additions to utility poles, and are willing to pay for the space, they should get it.
(If too many people want stuff on the poles to keep the poles working properly, just raise the access fees until demand is reduced to the supply of free space.)
would the ruling have been the same if they had been tiny christian crosses?
I've lived in a couple of places where one Jewish group wants to establish an eruv and another Jewish group makes a big stink about it, fighting them tooth and nail. The more secular Jewish group is trying to keep the now Orthodox Jews out of the neighborhood.
I've lived in a couple of places where one Jewish group wants to establish an eruv and another Jewish group makes a big stink about it, fighting them tooth and nail. The more secular Jewish group is trying to keep the now Orthodox Jews out of the neighborhood.
http://www.nytimes.com/2000/12/31/nyregion/church-and-state-drawing-a-line-in-tenafly.html
And in other lawsuits, if it's not a specifically secular Jewish group opposing it, odds are, the movers and shakers behind the lawsuit are secular Jews.
Q: Where are all the lechis?
A: Our Eruv does not use any classic lechis. Since our wires run directly above the lamp posts, lechis are not required.
Q: How much did the Eruv cost?
A: Approximately $12000. It cost $9000 to put up the wires and $3000 for the d'losos.
Q: Why isn't Amsterdam Ave. considered a reshus harabim?
A: Rav Schachter explained that when you have a mavuey with three walls, it loses its status of a reshus harabim.
Q: Where is the box of matzah?
A: Rabbi Joseph Kalinsky has them in his Apartment.
It seems to me that it's important that the eruv is an in-group thing, rather than evangelism. The Jewish community involved is seeking to communicate only with its members. If Christians put crosses on the poles (as one commenter suggested), the purpose would be evangelism, and if the utility permitted that, then they'd be well on their way to making their poles a public forum, which would require them to sell pole-space to anyone (including, I suppose, opponents of public power). And they wouldn't want that.
I am not a robot or a utility pole.
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