This matter arose when a group of Orthodox Jews in the Borough of Tenafly requested permission to erect an eruv on utility poles in a large portion of the town. An eruv is a religious structure that symbolically extends the confines of what is considered one's home for purposes of Jewish law. The Borough council denied the request. The ACLU-NJ initially did not take the side of either the plaintiff or defendant. Rather, we informed the court of the issues and legal analyses involved. First, we told the court that it must determine whether the utility poles constitute a public forum for expression. If so, the borough would have no right to object to any form of speech that they are used for, religious or otherwise. Should use of the poles not be publicly available, the ACLU argued that it would violate the Establishment Clause if preferential access were provided for the Eruv Association's religious purposes. Further, the ACLU-NJ argued that if the court did not find an Establishment Clause violation, the Eruv Association's free exercise rights must be considered and that the Borough should have to demonstrate that the decision to deny their request was prompted by legitimate concerns and not by animus towards the Eruv Associations' religion. Hearings were held on the factual issues. The District Court found that the poles were not open forums and that discriminatory intent was not the motivating factor in the denial of the Eruv Association's request. The plaintiffs appealed. On January 4, 2002, the ACLU-NJ submitted an amicus brief supporting the District Court's ultimate conclusion. However, we differed from the lower court in two respects: 1) we argued that the Establishment Clause affirmatively bars the town from granting selective use of the utility poles to the religious organization; and 2) we argued that the lower court should have been clear that the town bore the burden of establishing that they would have reached the same result for reasons other than discrimination. On October 24, 2002, the Third Circuit Court of Appeals ruled that, because the town failed to enforce the regulation prohibiting use of the poles by other Borough residents, it could not deny the Eruv Association the right to use the poles. The town petitioned for the United States Supreme Court to review the case and, on June 23, 2003, that petition was denied. This case was closed in 2003.


Ronald Chen/Rutgers Constitutional Litigation Clinic


United States Court of Appeals for the Third Circuit