CHURCH AND STATE; Drawing a Line In Tenafly
December 31, 2000
LAWYER: WALTER LESNEVICH
For Chaim Book, an Orthodox Jew, an eruv is simply a symbolic enclosure consisting primarily of existing utility poles and wires to delineate an area where observant Jews can push baby strollers and wheelchairs and carry objects outside their homes on the Sabbath.
”With an eruv, my wife and I can take our children, who are 4, 2 and 1, to synagogue services, visit friends,” said Mr. Book, a 35-year old Manhattan lawyer who is the treasurer of the Tenafly Eruv Association and its spokesman. ”Without an eruv, somebody has to stay home with the baby.”
His remarks may sound innocuous enough, but in this affluent Bergen County community of 13,500 on the New Jersey palisades, the eruv has become a divisive symbol — even among Jewish residents.
The debate culminated last month in a unanimous vote against the eruv by the borough council — two members of which are Jewish — followed by a Federal lawsuit by the eruv association against the town charging discrimination.
Mayor Ann A. Moscovitz, who is Jewish, denies there is any discrimination against Orthodox Jews involved and maintains that the council acted in good conscience after studying the pros and cons at two spirited public hearings attended by a hundred people each.
Walter Lesnevich, the borough attorney, explained the vote this way: ”The main reason is the eruv would be for just a segment of the town, not everyone. The town has always prided itself on being inclusive.”
The creation of such enclosures has prompted sharp debate around the country and elsewhere in New Jersey, including most recently a housing development in East Windsor where the local government eventually intervened on behalf of the eruv.
In Long Branch, the council gave approval to an eruv but was sued by the American Civil Liberties Union on the ground it violated the separation of church and state. A Federal judge, however, ruled in 1987 that the eruv was not a religious symbol but a religious accommodation protected by the constitution.
”The dispute in Tenafly is the exception, not the rule,” said Charles Goldstein, North Jersey director of the Anti-Defamation League, who supported the eruv at public hearings.
Hundreds of eruvim exist around the state, Mr. Goldstein said, including neighboring towns like Englewood, Teaneck, Paramus, Fair Lawn and Fort Lee and around the country including an area in Washington encompassing the White House.
”The bottom line is that an eruv is a religious accommodation,” said Mr. Goldstein, ”And there is no logical reason, constitutional basis or legal impediment to allowing an eruv to either be constructed or maintained in Tenafly or for that matter in any town.”
Mr. Lesnevich, the borough attorney, said, however, that he believed the Long Branch decision did not apply in Tenafly’s case.
”It deals with whether a town may allow an eruv to be erected,” Mr. Lesnevich said. ”Our case is whether a town must allow an eruv to be erected. Big difference.”
The eruv the association had completed last September without the town’s sanction incorporates most of Tenafly, which is 4.6 square miles, and links with the eruv in the city of Englewood to the south.
Opposition to the eruv at public hearings in November and December was at times acrimonious, with some Jewish residents contending an eruv would attract an influx of Orthodox Jews, who they feared would change the character of the community.
A resident who described himself as ”a proud, practicing Jew” was quoted in The Record, a daily newspaper published in Hackensack, after the hearing as saying the eruv was the ”antithesis of inclusion” and created ”a separation in Tenafly, us from them, the tribe from the rest of the community.” Another man who identified himself as a Holocaust survivor whose mother was Orthodox said the eruv violated the spirit of the Sabbath.
Supporters, who said the issue was one of religious tolerance, included some residents, the United Jewish Appeal of Bergen County and North Hudson, the Jewish Community Center on the Palisades and several Christian ministers, including the president of the Bergen County Council of Churches.
In an affidavit filed with the suit, Mr. Book said he believed anti-Orthodox sentiments were also held by some town officials, including the mayor.
In a telephone interview, the mayor said such comments hurt and said that she herself had been a victim of anti-Jewish discrimination when she first tried to buy a house in Tenafly 38 years ago.
”Some dreadful things were said by the community, Jewish members of the community, that upset me,” Mayor Moscovitz said. ”I was very upset because I heard the kind of phrases being used by my fellow Jews that were used against me at one time.”
Mayor Moscovitz, who did not have to vote on the eruv and declined to give her stand on the issue, said she believed that the controversy had damaged the town, which she feels has been tolerant to all groups.
When two members of the Tenafly Eruv Association first approached the mayor in June 1999, according to Mr. Book’s affidavit, she did not appear to be opposed to giving a ceremonial proclamation granting permission, but said she would take it up with the council.
Reaction by the public to the eruv was ”universally antagonistic” at the next work session of the council, according to the affidavit. Some council members questioned whether the council even had jurisdiction in the matter.
In late summer 1999, Mr. Book researched state law and concluded no formal approval was necessary from Tenafly and so the association sought the ceremonial approval, to fulfill religious requirements, from Bergen County Executive William (Pat) Schuber, who granted it.
In April 2000, the association sought and eventually received permisssion from Bell Atlantic to use certain poles for the eruv. In June, Cablevision agreed to attach strips of plastic wire to the telephone poles as markers. The affidavit filed by Mr. Book says the markers are unobtrusive and indistinguishable from other wires on the poles.
Town officials learned of the eruv last September when some men were seen putting up wire near the nature preserve. At that point the association was told it had to make a formal application to the council.
On Dec. 12, the council voted 5-0 (one member was absent) to bar the eruv and the next day set about getting it dismantled. Four days later the Tenafly Eruv Association filed suit in federal district court in Newark claiming discrimination and obtained a temporary restraining order preventing the town from dismantling the eruv.
In granting the temporary restraining order, Federal District Judge William G. Bassler said, ”It is incredible to this court that at this state of First Amendment jurisprudence in the state of New jersey, where countless towns have permitted the construction of eruvs, that the Borough of Tenafly is taking the position that they cannot be constructed.”
A hearing is set in federal court on Tuesday.