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The establishment of a mostly invisible religious boundary that would encompass most of Westhampton Beach and Quogue villages, allowing Orthodox Jews to push and carry objects to temple on the Sabbath, has been a point of contention for some residents for more than four years—and counting.
Proponents of the boundary are being led by the East End Eruv Association, the not-for-profit that picked up the baton after religious leaders at the Hampton Synagogue in Westhampton Beach first pitched the idea in 2008. Representatives of the group are insisting that any and all attempts to block the boundary’s creation violate the constitutional rights of those who would benefit from it, namely the observant religious Jews who make their homes, or second homes, near the Sunset Avenue synagogue. In 2011, the East End Eruv Association (EEEA) sued both villages and Southampton Town—a portion of the proposed boundary would fall on Quiogue, which is part of the town’s jurisdiction—in U.S. District Court, Eastern District of New York, charging that all three municipalities have violated the civil rights of all observant Jews by blocking the eruv’s creation. Those who would utilize the boundary have noted that Jewish law requires that it be approved and recognized by those who control the area in which it would be placed—the main sticking point in the battle on the East End.
Opponents of the proposal, which include many year-round residents and even some Jews who belong to the Westhampton Beach synagogue, are countering that village and Southampton Town officials cannot be asked to make a decision that some could interpret as the government “favoring” one religion over another. Such action, argues Quogue Mayor Peter Sartorius, would violate the constitutional rights of those who would not benefit from the boundary.
In May, the Quogue Village Board unanimously rejected an application filed five months earlier by the EEEA, requesting that board members approve the installation of 48 “lechis”—markers that would be affixed to utility poles to delineate the eruv’s boundaries—in the village. The grounds for the rejection: support for an eruv would violate the freedom of religion that other village residents enjoy and are entitled to under the U.S. Constitution.
In spite of recent suggestions that a federal court ruling is imminent, those familiar with the case said it could still be several months before that happens. The case is complicated by the fact that there are actually three lawsuits, as well as one countersuit, still in play, and all those need to be settled by the courts.
Until that happens, it appears that the tension between those who would benefit from the eruv, namely Orthodox Jews who attend services at The Hampton Synagogue, and those who vehemently oppose it will continue to fester just out of view.
Robert Sugarman, an attorney with the Manhattan firm Weil, Gotshal and Manges LLP, which is representing the EEEA pro bono, said recently that the not-for-profit has no intention of giving up the fight. He also said his group continues to follow the path that has been recommended by the courts.
“We have followed the directives of the judge,” Mr. Sugarman said. “We are now pursuing our remedies against Westhampton and Quogue, and we look forward to the argument on those motions. We are also pursuing the application process with the Town of Southampton.”
In September, the EEEA filed an application with Southampton Town requesting that it be allowed to install 28 lechis on 15 utility poles on Quiogue, according to Katie Garvin, an assistant town attorney. She explained that the application requested that the Town Board approve the lechis. The request was denied by the Town Board in October, which explained that the EEEA would need a variance from the town’s Zoning Board of Appeals to install the markers. The EEEA filed an application with the ZBA on December 4, but a decision has not yet been rendered.
Brian Sokoloff, an attorney with the Westbury firm Sokoloff Stern LLP and who is representing Westhampton Beach Village, also said his client has no intention of backing down. He explained that the village has two main arguments opposing the eruv’s establishment. The first is that the utility companies—the Long Island Power Authority and Verizon—do not have the authority to approve the creation of a boundary on public property. Second, he said that if a village or town approves such a boundary, it would be seen as favoring a religion, which violates the establishment clause of the U.S. Constitution. Quogue Village rejected the EEEA application on the same grounds in the spring.
“The motion that we have made has two basic arguments,” Mr. Sokoloff said. “If we win on either of them, there is no eruv.”
The Village of Quogue is being represented by Jeltje DeJong of Devitt Spellman Barrett LLP and Marci Hamilton, a professor at Benjamin N. Cardozo School of Law.
An eruv is a mostly invisible boundary that, according to Jewish law, allows observant Jews to perform certain activities—like pushing a stroller or wheelchair and carrying keys—that are otherwise forbidden on the Sabbath and certain Jewish holidays. The proposed eruv would be created by attaching wooden markers, known as lechis, to utility poles that, in this case, are owned by Verizon and LIPA, and would delineate the boundary’s borders. In some instances, the eruv could be marked with existing power lines and other landmarks.
In addition to the four dozen lechis in Quogue Village, the EEEA is seeking permission to install 28 markers on Quiogue and more in Westhampton Beach, where the actual number is unclear, since the organization has not yet filed a formal application with Westhampton Beach Village. The wooden markers would be no bigger than 1 inch thick, 4 inches wide and 40 inches long, according to the lawsuit filed by the EEEA.
The boundary was first pitched to the Village of Westhampton Beach on March 7, 2008, when Rabbi Marc Schneier, the founding rabbi of The Hampton Synagogue, submitted a petition to village trustees seeking its establishment. Before a vote could be taken, Mr. Schneier, who could not be reached for comment, submitted a letter to the village on May 23, 2008, withdrawing the application that sought to create a boundary only in Westhampton Beach, explaining that he would like to further educate residents about the proposed eruv before re-filing. The educational hearing was never held, and synagogue officials never re-filed the application. As a result, Westhampton Beach officials have never voted for or against the eruv.
Then in May 2010, the EEEA picked up the ball and entered into an agreement with Verizon that would allow the group to attach the lechis to the poles owned by the provider in Westhampton Beach, Quogue and Quiogue. Two months later, the EEEA entered a similar agreement with LIPA. Both utilities have stated that they do not need the permission of either village, or Southampton Town, to approve the lechis—a point disputed by all three municipalities.
It was that objection that prompted the filing of the first lawsuit in January 2011 charging that all three municipalities are violating the civil rights of observant Jews. That litigation, as it turns out, would lead to the filing of two additional lawsuits and one countersuit.
The EEEA made the first move in what has evolved into a legal chess match on January 13, 2011, when it sued Southampton Town, as well as the villages of Quogue and Westhampton Beach. The litigation alleges that the municipalities violated the constitutional rights of members of the EEEA by interfering with negotiations with the two utilities, Verizon and LIPA, regarding the lechis.
The lawsuit alleges that through letters mailed to both utilities, as well as comments made during public meetings and to the press, town and village officials successfully prevented the eruv’s establishment. The suit names the following people as defendants: Southampton Town Supervisor Anna Throne-Holst, Town Board members Christopher Nuzzi, James Malone and Bridget Fleming, and former board member Nancy Graboski; Westhampton Beach Village Mayor Conrad Teller, Deputy Mayor Hank Tucker and former trustees Joan Levan, Toni-Jo Birk and Leola “Sue” Farrell; and Quogue Village Mayor Peter Sartorius and Trustees Randy Cardo, Jeannette Obser, Kimberley Payne and Ted Necarsulmer.
The plaintiff wants the court to throw out the argument that local town and village codes prohibit the establishment of the boundary, and confirm that private third parties, such as Verizon and LIPA, should be “free and clear to implement the contracts to permit construction of the eruv.” The lawsuit also calls for a permanent court order preventing the defendants from further interfering in any aspect of the creation of an eruv. Finally, the suit is seeking compensatory and punitive damages—the EEEA does not offer a specified amount in the suit—and also wants its attorney’s fees to be paid by the defendants.
While that lawsuit was making its way through the courts, the EEEA filed a separate motion requesting that a temporary eruv be established until a ruling on its initial suit could be rendered. But U.S. District Judge Leonard D. Wexler, who is the judge hearing all of the cases, denied that motion in November 2011 on grounds that the EEEA’s request was premature in that it had never filed a formal application for an eruv with either village or the town.
In response, the EEEA, in January 2012, filed its first application that seeks the creation of an eruv in Quogue. But after several months of public hearings, trustees in that village unanimously denied the application in May on grounds that the eruv’s establishment would violate the rights of those who would not benefit from it.
In its decision, the Quogue Village Board also states that it does not permit signs, posters and other advertisements in the village’s rights of way and cannot make an exception in this instance. The decision reads, in part: “We despair of identifying any principled distinction between both the device and the messages imparted by the lechis and many other types of signs and other things that imaginative people have sought and could seek to place in our rights of ways. We do not wish to be in a position of having to make distinctions without a clear basis for doing so or to expose the Village to claims of discriminatory treatment, expensive litigation, and potential liability for allowing one type of device and message and not another.”
Officials representing the organization threatened to sue Quogue over its denial but have not taken any such action yet; Mr. Sugarman said a suit is still in the works. The EEEA, meanwhile, never filed a similar application with Westhampton Beach, because representatives said that there is no local law that prohibits the lechis there.
But in September, the EEEA filed a request with Southampton Town, asking that it permit to installation of lechis on Quiogue. That request was denied by the Town Board.
On February 3, 2012—approximately three weeks after filing its application with Quogue Village—the EEEA amended its original lawsuit, dropping the town supervisor, both village mayors and all the trustees and town council members from the list of defendants. The other key change is that the word “Orthodox” Jew was replaced with “Observant” Jew in the amended litigation.
Verizon and LIPA became embroiled in the litigation when the utilities jointly filed a lawsuit in U.S. District Court on January 18, 2011, that names Westhampton Beach and Quogue villages, as well as Southampton Town, as defendants. The utilities are arguing that, in 2010, they entered into private contracts with the EEEA, allowing it to install the lechis on their utility poles, but that the three municipalities have threatened to fine them if the EEEA is allowed to do so. As part of their suit, Verizon and LIPA are asking that the court rule that the town and village cannot fine the utilities for allowing the installation.
About 18 months later—on July 9, 2012—the two villages and town filed a countersuit against Verizon and LIPA, charging that the utilities lack the authority to approve an eruv within their municipalities. The countersuit also demands that the original suit filed by LIPA and Verizon be dismissed and asks that the court bar both from issuing licenses for the lechis.
Both the original suit and the countersuit are still pending, though Mr. Sokoloff said he hopes that both will be settled later this month. He added that his clients object to the fact that the utility companies believe they can approve such a boundary without also seeking permission from the villages and town.
Mr. Teller, like his counterpart in Quogue, also declined to discuss the matter, citing the ongoing litigation.
“It is a religious matter as far as I am concerned,” he said. “I have no comment.”
The third and final lawsuit was filed on July 30, 2012, also in U.S. District Court, by a group called the Jewish People For The Betterment of Westhampton Beach, commonly referred to as Jewish People Opposed to the Eruv, or JPOE. Members of the group, some of whom attend the synagogue in Westhampton Beach, are suing the Village of Westhampton Beach, the EEEA, Verizon and LIPA because they do not want to live in a community where government is being asked to endorse one religion over another. When asked immediately after filing the suit why the village was included as a defendant, representatives of the group said they wanted to ensure that their voice was being heard in the municipality. They are also alleging that the creation of an eruv would serve no secular purpose in the village.
The JPOE is asking for the court to rule that the establishment of an eruv on public property, including utility poles, violates the establishment clause of the U.S. Constitution. The establishment clause prohibits the creation of a national religion for the United States, and does not allow government to make rules that favor one religion over another.
Additionally, the group wants the court to prohibit Verizon and LIPA from allowing the EEEA from using their utility poles to create the boundary, and is requesting that the defendants pay the JPOE’s legal fees.
Jonathan Sinnreich, an attorney with the Central Islip law firm Sinnreich Kosakoff and Messina LLP that is representing JPOE, said that in late October both Verizon and the EEEA filed motions asking that his clients’ suit be dismissed. He said his clients intend to respond as necessary to ensure that their case is heard.
“I think this is a difficult constitutional issue and it is clearly an issue that is going to be decided ultimately by the higher court,” Mr. Sinnreich said, suggesting that, whatever the outcome, there will be an appeal. “We all know that, and whatever the outcome is before Judge Wexler this case is going, at least, to the Court of Appeals, if not higher, and it should be because it is a difficult and complex issue.”
Mr. Sokoloff, meanwhile, said he plans to file a motion, on behalf of Westhampton Beach, requesting that the JPOE lawsuit also be dismissed.
Erin McKinley on Dec 28, 2012