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Sep 18, 2008 5:08 PMPublication: The Southampton Press

Legal opinion on eruv is likely a precursor to lawsuit

Sep 18, 2008 5:08 PM

In what appears to be the gearing-up for a lawsuit on a controversial issue in the village, Westhampton Beach Village has received a legal opinion from a group opposed to a religious boundary in the village, and received notice from the Hampton Synagogue that it will be submitting its own opinion, as well.

On Tuesday, October 7, the Alliance for the Separation of Church and State in the Greater Westhampton Area submitted an 18-page legal memorandum written by Marci Hamilton, who holds the Paul R. Verkuil Chair in Public Law at the Cardozo School of Law in New York City, to the village for its consideration in ongoing deliberations on the proposed religious boundary, called an eruv. An eruv, demarcated by PVC-piping on telephone poles proposed to enclose a one-square-mile area in the village, allows Orthodox Jews to push and carry objects on their Sabbath.

The day after the Alliance’s memorandum was submitted, Hampton Synagogue President Morris Tuchman alerted village officials that the synagogue hired its own legal counsel on the issue. While local attorney Richard Haefeli initially represented the village in the religious boundary issue, the synagogue has opted to hire Manhattan-based Robert Sugarman of the firm Weil, Gotshal and Manges to draft a memorandum. Mr. Sugarman will work pro bono for the synagogue. He was not available to comment before publication.

In an e-mail, Synagogue President Morris Tuchman said that Mr. Sugarman will submit the opinion to the village within two weeks.

In February, the Hampton Synagogue submitted an application to the village asking for a proclamation for the eruv. Controversy regarding the religious boundary swamped the village and, in late May, the synagogue temporarily withdrew the application in order to educate the village on the boundary. At the time, officials with the synagogue said that the application would be re-submitted in the fall.

However, Marc Schneier, the founding rabbi of the Hampton Synagogue, has declined to publicly comment on the eruv for the past few weeks and gave no indication as to when the eruv application would be re-submitted. However, Mr. Tuchman said that the resubmission of the application would follow the submission of the legal opinion.

Mr. Sugarman represented the Tenafly Eruv Association in its winning battle against the borough of Tenafly to establish an eruv. Likewise, Bruce Rosen of the New Jersey-based firm McCusker, Anselmi, Rosen & Carvelli who aided Ms. Hamilton with her memorandum, represented the Borough of Tenafly in its losing case against the eruv.

“If you take Hamilton’s memorandum and agree to everything it said, the thousands of eruvs created in this country would be illegal and unconstitutional,” said Westhampton Beach Village Attorney Bo Bishop. “There would be no more eruvs permitted in the country, according to her thesis.

“If the Supreme Court were to rule that what she said was correct, there would be no further eruvs permitted in the U.S. Do you honestly believe they would do that?” Mr. Bishop continued.

Mayor Conrad Teller, who has been reticent to state his opinion on the religious boundary, agreed with Mr. Bishop.

“I don’t think the memo would stand up in a court of law,” Mr. Teller said. “I don’t think all of the eruvs are illegal, it’s some law professor’s idea. The Supreme Court is in an eruv, the City of New York is in an eruv, and there are eruvs that have been fought over in a court of law. If her opinion was correct it should have been brought up a long time ago.”

Mr. Bishop said that this week the village received a 20-page memorandum from its own legal counsel on the eruv—Maureen Liccione, Stanley Camhi, and Christopher Palmieri of Garden City-based Jaspan Schlesinger Hoffman LLP. The memorandum is confidential, Mr. Bishop said.

Mr. Bishop could not comment on how he would advise the village in the matter of the eruv.

The Alliance for the Separation of Church and State in the Greater Westhampton Area submitted a letter heralding the 18-page memorandum in mid-September. The letter highlights three main reasons why the village should not approve the eruv.

Ms. Hamilton said that the 18-page memorandum “elaborates on the theory” in the letter.

The main point of the Alliance’s argument against the eruv is that “it is unconstitutional for the government to endorse or validate religious law, [which] is what the proclamation and the eruv together do.”

Before the submission of the letter, Mark Williams, a retired attorney and one of the leaders of the Alliance, said that his group would have to devise a new argument against the religious boundary because of numerous failed battles against eruvs in other municipalities.

Ms. Hamilton said that she has in fact innovated on previous arguments against the eruv. One such innovation is her fleshing-out the belief that an eruv is not an accommodation.

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I certainly hope Mr. Bishop was taken out of context. We would still have prayer in schools if that logic prevailed, after all thousands of schools had prayers said everyday for decades. Unless I'm mistaken or the copy of the memorandum that is on the internet is not the same as the one Bishop is reading... there is simply no compelling reason for the Village to even be involved in a factional Jewish law. There are Jews that can not enter the area of an eruv, as a religious practice... what about ...more
By Resident (42), Westhampton Beach on Oct 14, 08 12:31 PM
Ms. Hamilton's comments are interesting. Government is not preventing Orthodox Jews from performing any activity; Jewish Law is.
Why go to a civic government for relief of a law that is not government's doing?
Should the Village allow the eruv as defined, then it is in a de facto sense repressing activity in those areas that are outside the eruv.
By North of Highway (280), Westhampton Beach on Oct 16, 08 8:09 AM
I do not understand why the proposed eruv will only be located to the east of the synaguogue. What about the residents living west of Sunset down MIll Rd toward Baycrest and Oneck? I think this intial application is just the start. They will want to expand the area next year, etc.
By Lefty46 (56), Westhampton on Oct 16, 08 5:01 PM
I'm sure someone will correct me if I am wrong but was their some discussion that the eruv initially was to be much bigger, from Remsenburg to Quogue? If that is true I am not sure why it was reduced in size - perhaps to have to deal with only one civic entity?( Westhampton Beach?)
By North of Highway (280), Westhampton Beach on Oct 16, 08 8:47 PM