January 06, 2015
Weil secured a major victory today for the East End Eruv Association (EEEA), and religious freedom in general, when the U.S. Court of Appeals for the Second Circuit affirmed the dismissal of a constitutional challenge to the establishment of an eruv – a symbolic enclosure significant to people of Jewish faith – in Westhampton Beach, New York. In a Summary Order, the Second Circuit affirmed judgments from the U.S. District Court for the Eastern District of New York dismissing a complaint alleging that the EEEA, in addition to co-defendants The Village of Westhampton Beach, Verizon New York, Inc., and the Long Island Power Authority (LIPA), violated the Establishment Clause of the U.S. Constitution by permitting the installation of an eruv – an enclosure that permits Jews to carry certain objects outside their own homes during Sabbath and High Holy Days – through the installation of inconspicuous strips (lechis) on utility poles owned by Verizon and LIPA.
In its decision, the Second Circuit went through a detailed analysis under the three-pronged Lemon test and concluded that “permitting the EEEA to erect the eruv is not an unconstitutional establishment of religion.” In coming to this conclusion, among other things, the Court held that since an eruv is delineated by “nearly invisible” staves and wires attached to utility poles, “no reasonable observer” who happened to notice the strips would think that a governmental actor was endorsing or advancing a particular religion. The Court also found that an eruv is “less of an advancement” of religion than other governmental actions that have similarly survived the Lemon test, such as a nativity scene. In conclusion, the Court noted that every court to have considered whether similar government actions violate the Establishment Clause “has agreed they do not.” In addition to the action at issue on appeal, there are three other pending cases that will be impacted by this decision as EEEA’s opponents in those cases have pressed the now rejected position that creating an eruv is a violation of the Establishment Clause.
Weil partner Yehudah Buchweitz argued the appeal. The balance of the Weil team representing the EEEA included retired partner Robert Sugarman and associates David Yolkut, Jessie Mishkin, Sabrina Perelman, Joshua Schlenger, Christopher Luise, Doron Kenter, Jonathan Fisch, Lisa Sokolowski, Nigar Shaikh, and Shireen Nasir, all in New York.