Eruv - Legal Status

Legal Status

In the United States, legal controversies about an eruv in a community often focus on provisions of the First Amendment of the Constitution of the United States, which addresses relations between government and religion. Opponents of an eruv typically take the view that the government participation in the eruv process necessary to approve its construction violates the First Amendment's prohibition of governmental establishment of religion. Proponents take the view that it constitutes a constitutionally permissible accommodation of religion rather than an establishment. Proponents have also argued that the Free Exercise Clause affirmatively requires government acceptance, on the grounds that government interference with or failure to accommodate an eruv constitutes discrimination against or inhibition of the constitutional right of free exercise of religion.

In Tenafly Eruv Association v. Borough of Tenafly (309 F.3d 144), Judge Ambro, writing for the United States Third Circuit Court of Appeals, held that Eruv Association members had no intrinsic right to add attachments to telephone poles on Borough property and that the Borough, if it wished, could enact a general, neutral ordinance against all attachments to utility poles that could be enforced against the eruv. However, Judge Ambro held that in this case the Borough had not enacted a genuinely general or neutral ordinance because it permitted a wide variety of attachments to utility poles for non-religious purposes, including posting signs and other items. Because it permitted attachments to utility poles for secular purposes, the court held, it could not selectively exclude attachments for religious purposes. The United States Supreme Court declined to hear the case. It was subsequently cited as precedent by a number of other federal courts deciding disputes between an eruv association and a local government.

In Outremont, a neighbourhood in Montreal, Canada, the city adopted a policy of removing eruv wires. The Hasidic community obtained an injunction preventing such action by the city authorities.

In general, State law has dealt with whether and to what extent government can permit or assist the erection and maintenance of boundary demarcations on public property. It has not dealt with the nature of the aggregation agreement or recognized an eruv as having legal effect or as implementing a meaningful change in real property ownership or tenancy. For purposes of accident liability, trespass, insurance, and other secular matters occurring on Shabbat, State law, treats the properties within an eruv as continuing to be separate parcels.

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