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September|October 2003
Mock Trial's Big Dance By Brian Montopoli
Pete Rose's Mock Trial By Joshua David Mann
Sue Yourself By Dashka Slater
To Be Continued By Sam Goodstein
No Boundaries By Tyler Maroney
The Prudent Jurist By Susan Koniak
Cases & Controversies

No Boundaries

By Tyler Maroney

ON ABOUT 200 UTILITY POLES IN TENAFLY, N.J., thin black strips of wire run from the ground up to the overhanging telephone lines. These wires, put up at a cost of about $25,000 by several Modern Orthodox Jewish families (with the help of workmen and utility trucks donated by Cablevision), compose a ceremonial boundary called an eruv. On the Sabbath, Yom Kippur, and certain other holy days, observant Jews are strictly forbidden from doing any "work," which includes activities like carrying keys or pushing a baby stroller outside the home. An eruv creates a series of symbolic doorways, turning a public space into a private one and allowing believers, for example, to walk to a park or to synagogue.

Eruvs (or eruvim) originated as early as the third century, when rabbis codified them in the Talmud. They used to be made out of wooden rods that were drilled into the ground and connected above by rope, but the advent of telephone poles provided a convenient modern foundation. Since the 1970s, as the Orthodox movement has flourished in the United States, hundreds of eruvs have been built around the country. President George H. W. Bush approved the erection of one in Washington, D.C., and both the White House and the Supreme Court fall within its boundaries.

Tenafly's eruv was put up in 2000. Because it's virtually indistinguishable from the wires and cables that also run up the poles, it initially attracted little attention from the borough's 13,000 residents. Ann Moscovitz, the town's first Jewish mayor (as well as its first female and first Democratic one) originally endorsed the notion of an eruv. "It's as innocuous as the 'K' on Fleischmann's Margarine," she said recently, referring to one of the symbols that denotes kosher food. "If you're not looking for it, you won't see it."

But a few residents were looking, because they were opposed to the idea in the first place. During public hearings before the eruv was erected, they argued that the town would set a dangerous precedent if it made concessions to a single religion. Others worried that the construction of the eruv would encourage increased immigration by the Orthodox and thereby radically alter the character of the town. A City Council member raised a "serious concern" that "Ultra-Orthodox" Jews might "stone cars that drive down the streets on the Sabbath."

The Tenafly Eruv Association, the nonprofit organization formed to construct the eruv, decided to build the boundary with an endorsement from the county executive but without the town's permission. As a result of this affront, Mayor Moscovitz reconsidered her earlier position and, along with the five-member town council, voted unanimously to remove the eruv. The council cited a 49-year-old municipal ordinance that forbids putting signs, advertisements, or "other matter" on public poles, trees, or elsewhere without town authorization. In response, the Eruv Association sued the town of Tenafly in district court and sought an injunction barring the borough from dismantling or interfering with the eruv.

Chaim Book, the spokesman for the association, and its lawyers argued that the council was violating the First Amendment right of the Orthodox community to exercise their religion freely. For years, they noted, other groups had affixed items like Christmas wreaths, ribbons, and church signs bearing crosses to utility poles. Moreover, the Orthodox wouldn't be able to attend synagogue on the Sabbath without an eruv.

The Third Circuit Court of Appeals in Philadelphia agreed with Book. It ruled that the council's actions were "suggestive of discriminatory intent" and ordered that the eruv remain. The decision inflamed the mayor, who doesn't believe that the town should have to provide public property for private rituals. "We are not obstructing the Orthodox's right to go to their house of worship," said Moscovitz. "We are not blocking the streets and putting up blockades." The town then asked the U.S. Supreme Court to overturn the decision.

TENAFLY ("TEN SWAMPS" IN DUTCH) WAS SETTLED ON MARSHY FARMLAND along the Hudson River in the 17th century. The town is now an affluent, ethnically diverse New York City suburb. Asian-Americans make up one-third of public school enrollment, and the town has houses of worship representing 14 different religious denominations. Roughly one-third of Tenafly is Jewish, mostly Reform or Conservative. But the Orthodox community there is growing, just as it is in Philadelphia, Washington, D.C., and Los Angeles. According to Book, there are now more than two dozen Orthodox families in Tenafly, compared to only a handful when the eruv was constructed. Virginia Mosley, the town historian, noted that the town has two distinct groups of Jews, referring to the Orthodox as "the newcomers."

Robert Sugarman, the lawyer who argued on behalf of the Eruv Association before the Third Circuit, believes that the case has more to do with prejudice than with philosophical objections to the separation of church and state. "This case has gone as far as it has because of the furor of a small group of residents," he said. "They believe that the eruv, and therefore the Orthodox, will destroy their community."

Moscovitz insists that she has no objection to Orthodox Jews moving to Tenafly. But she noted that some of her constituents have complained that the Orthodox have made them feel like visitors in their own town. The Orthodox "create segregation," she continued, because they don't allow their kids to play with kids who aren't Orthodox. It's true that Orthodox residents don't send their children to public schools. And because work is forbidden on the Sabbath, Orthodox-owned businesses are closed on Saturdays.

Many townspeople fear that Tenafly will become an Orthodox haven, much like nearby Teaneck and Spring Valley, N.Y. In Teaneck, for example, membership at the Lubavitch Synagogue grew 50 percent between 1994 and 2001, and four new synagogues opened in the town. An Orthodox woman who was interviewed recently at a kosher deli in Tenafly said that her neighbors are "afraid that the Orthodox will flood the town." She asked not to be identified because she didn't want to aggravate tensions between the Orthodox and other Jewish denominations. Rabbi Howard Jachter, who runs an Orthodox synagogue in Teaneck, said that Tenafly's intolerance is unusual. "Tenafly has become such a big deal," he said, "because people there were quite open about their Orthodox phobias."

But now that the Third Circuit has ruled in favor of the eruv, residents are cautious about voicing their opposition. "There's no monolithic feeling about the eruv," said Craig Rule, a minister of the Presbyterian Church of Tenafly, who presides over a congregation of about 600 people. "But if I had to guess, I would say that the majority of the people in my congregation are against it." His congregants fault the Orthodox for using "stealth tactics" to raise the eruv, Rule said, and think that too much taxpayer money has been spent on the case.

Moscovitz blames Book's organization for creating ill will by flouting the town council's authority. "A religion has been dictating to a governing municipality," she proclaimed. "But the pope shall not dictate to the king." She was convinced that the Supreme Court would see it her way, but it refused to hear the case.

Tyler Maroney is a writer based in New York City.

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