Dei'ah veDibur - Information & Insight

A Window into the Chareidi World

6 Kislev 5762 - November 21, 2001 | Mordecai Plaut, director Published Weekly









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Agudath Israel Makes Case for Tenafly Eruv
by B. Isaac

In a brief filed before a federal appeals court, Agudath Yisroel of America made the legal case that the borough council of Tenafly, New Jersey improperly forbade the maintenance of an eruv -- a symbolic enclosure creating a "private domain" where objects may be carried on the Jewish Sabbath -- on the town's property.

Most strikingly, the amicus curiae, or "friend of the court," brief by Agudath Israel of America invokes not only case law but evidence of less-than-highminded motivations on the part of some of the eruv's opponents.

The Agudath Israel brief submitted to the U.S. Court of Appeals for the Third Circuit maintains that the federal district court that earlier this year ruled in favor of the Borough of Tenafly erred in rejecting eruv proponents' claim that the borough's rejection of the eruv violated their free exercise of religion and fair housing rights.

The brief, written by Agudath Israel attorneys Chaim Dovid Zwiebel, Mordechai Biser and Abba Cohen, relies heavily on a 1995 case involving the upstate New York Village of Airmont, where a federal appellate court ruled that the Village's prohibition against the establishment of home-based houses of worship violated the rights of local Orthodox Jewish residents.

Agudath Israel asserts that the Airmont case has direct implications for the legality of Tenafly to outlaw its eruv because the earlier decision also involved a municipal decision that merely had a chilling effect on Orthodox Jews' desire to move into a community.

Thus, even though the lack of an eruv in Tenafly does not entirely prevent observant Jews from moving to the town, notes the Agudath Israel brief, the absence will clearly make Tenafly a less attractive community for many potential Orthodox residents.

Furthermore, Agudath Israel maintains, Tenafly's decision to outlaw the local eruv has that effect not incidentally but intentionally. Moving beyond the effects of the eruv's dismantling, the brief focuses a harsh but illuminating spotlight on the apparent intentions of some of the eruv's opponents.

The brief asserts that the actions of Tenafly's borough council were taken with the specific purpose of discouraging Orthodox Jews from living in the municipality.

While the district court found "that the borough council did not act out of some deep-seated anti-Semitism or hatred for religion," Agudath Israel's brief cites a number of disconcerting indications to the contrary.

One was in the form of a public statement by a member of the Tenafly borough council.

Warning of "change[s] in the community" that he asserted would come about with the influx of Orthodox Jews an eruv would bring, the councilman observed that "It's become a change in every community where an ultra-orthodox group has come in. They've willed the change. They've willed a change in the state of Israel. They've willed it so much so that they've stoned cars that drive down the streets on the Sabbath."

Another Tenafly eruv opponent pointed to the changes in a nearby community when Orthodox Jews started moving in:

"Just take a look at what happened in Teaneck. Teaneck was beautiful. Teaneck had beautiful stores. Almost every store in Teaneck today is geared towards the Orthodox. If this [the eruv] 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 a Glatt 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."

While Agudath Israel notes that some of the opposition to the Tenafly eruv may not have been rooted in a conscious desire to exclude Orthodox Jews, the fact that much of it clearly was should be sufficient for the case to be treated as one of intentional religious discrimination.

The brief points out that the sentiments expressed in Tenafly seemed to mirror feelings expressed by opponents of Orthodox Jews' presence in several other American locales.

Agudath Israel's brief quotes several examples, including the admission of one of the defendants in the Airmont case that "the only reason we formed this village is to keep those Jews from Williamsburg out of here" and a Beachwood, Ohio resident's assertion, in opposition to the construction of several religious buildings, that "when the Orthodox began moving onto Taylor Road, the non-Orthodox felt they were being pushed out. You didn't want Beachwood to be a ghetto."

"What we have here, sadly, is a municipality that is seeking to prevent a religious group from residing within its borders," says Mr. Zwiebel.

"The borough council's vote against the eruv was nothing more, nothing less, than an expression of anti-Orthodox paranoia -- the type of paranoia that has unfortunately become an all too common feature in suburban communities across the United States.

It is important that this disturbing phenomenon be confronted head-on."

In an unrelated development in a "friend of the court" legal brief submitted to the United States Supreme Court, the National Jewish Commission on Law and Public Affairs, joined by Agudath Israel of America, the Orthodox Union and other Orthodox Jewish groups, has urged the High Court to uphold the constitutionality of Cleveland's controversial school voucher program.

The brief, authored by Washington attorneys Nathan Lewin and Alyza Lewin with the assistance of several other prominent Orthodox lawyers, expresses the Orthodox community's support for programs that permit the use of tax moneys by parents to educate their children in the schools of their choice.

As long as funds are neutrally provided to parents and not directly to schools, the brief argues, such "school choice" programs, even when used by parents to help pay for religious schooling, do not violate the First Amendment's separation of church and state.

The Cleveland program provides tuition aid to parents of nearly 4,000 students who have left public schools in Cleveland that their parents felt were failing.

Lower courts reached opposite conclusions about whether the program is constitutional, and the High Court's decision, expected in June, will settle the issue -- and perhaps decide the fate of similar programs in other states as well.

The Orthodox groups' brief catalogues the growth of Jewish day school and yeshiva education in the United States, and asserts that "with growth come growing pains" -- serious fiscal problems that make it difficult for many yeshivos to provide the types of quality religious studies/secular studies dual education program to which they are committed, and for some parents to choose yeshiva education for their children.

"That is why," the brief asserts, Orthodox Jewish groups "have had a long-standing interest in promoting and defending constitutionally-permissible means of expanding the range of parental choice in education," such as the Cleveland voucher program.

At the same time, the brief notes, school choice initiatives like Cleveland' s benefit all sectors of society. "By enabling parents to direct state education funds to any qualified school that, in the view of the parents, offers the best education for their children, school-voucher laws open new avenues for educational improvement of all schools throughout the nation."

Briefs in opposition to the Cleveland program are expected to be filed by a number of non-Orthodox Jewish groups, which have long been in the forefront of the effort to oppose governmental assistance to religious schools and the constituencies they serve.

Commented Agudath Israel's executive vice president for government and public affairs, Chaim Dovid Zwiebel, who also participated in the authorship of the brief:

"For far too long, the debate over school vouchers has been dominated by legalistic discussions of constitutional concern. If the Supreme Court upholds the Cleveland program, as we expect it will, perhaps society will finally get around to focusing on the really important issue: improving education by expanding parents' choice. And perhaps the establishment of American Jewish organizations will finally get around to focusing on the centrality of Jewish education in ensuring Jewish continuity."


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