Tenafly Eruv Ass'n v. Borough of Tenafly

Opinions of the United

2002 Decisions States Court of Appeals

for the Third Circuit

10-24-2002

Tenafly Eruv Assn v. Tenafly

Precedential or Non-Precedential: Precedential

Docket No. 01-3301

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PRECEDENTIAL

Filed October 24, 2002

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 01-3301

TENAFLY ERUV ASSOCIATION, INC.;

CHAIM BOOK; YOSIFA BOOK;

STEPHANIE DARDICK GOTTLIEB;

STEPHEN BRENNER,

Appellants

v.

THE BOROUGH OF TENAFLY;

ANN MOSCOVITZ, individually and

in her official capacity as Mayor

of the Borough of Tenafly;

CHARLES LIPSON; MARTHA B KERGE;

RICHARD WILSON; ARTHUR PECK;

JOHN T. SULLIVAN, each individually

and in their official capacities as

Council Members of the Borough of Tenafly

Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil Action No. 00-cv-06051)

District Judge: Honorable William G. Bassler

Argued March 21, 2002

Before: NYGAARD, ROTH and AMBRO, Circuit Judge s

(Opinion filed October 24, 2002)

Robert G. Sugarman, Esquire

(Argued)

Harris J. Yale, Esquire

Craig L. Lowenthal, Esquire

Weil, Gotshal & Manges

767 Fifth Avenue, 27th Floor

New York, NY 10153

Richard D. Shapiro, Esquire

Hellring, Lindeman, Goldstein &

Siegal

One Gateway Center, 8th Floor

Newark, NJ 07102

Nathan Lewin, Esquire (Argued)

Alyza D. Lewin, Esquire

Mintz, Levin, Cohn, Ferris,

Glovsky & Popeo

701 Pennsylvania Avenue,

N.W., Suite 900

Washington, D.C. 20004

Attorneys for Appellants

Bruce S. Rosen, Esquire

McCusker, Anselmi, Rosen, Carvelli

& Walsh

127 Main Street

Chatham, NJ 07928

Walter A. Lesnevich, Esquire

Lesnevich & Marzano-Lesnevich

15 West Railroad Avenue

Tenafly, NJ 07670

Noah R. Feldman, Esquire (Argued)

New York University Law School

40 Washington Square South

New York, NY 10012

Attorneys for Appellees

2

Kevin J. Hasson, Esquire

Anthony R. Picarello, Jr., Esquire

Roman P. Storzer, Esquire

Derek L. Gaubatz, Esquire

The Becket Fund for Religious

Liberty

1350 Connecticut Avenue, N.W.,

Suite 605

Washington, D.C. 20036

Nathan J. Diament, Esquire

Union of Orthodox Jewish

Congregations

1640 Rhode Island Avenue, N.W.

Washington, D.C. 20036

Abba Cohen, Esquire

Agudath Israel of America

1730 Rhode Island Avenue, Ste. 504

Washington, D.C. 20036

David Zwiebel, Esquire

Mordechai Biser, Esquire

Agudath Israel of America

42 Broadway, 14th Floor

New York, NY 10004

Ronald K. Chen, Esquire

Rutgers Constitutional Litigation

Clinic

123 Washington Street

Newark, NJ 07102

Edward Barocas, Esquire

J.C. Salyer, Esquire

American Civil Liberties Union of

New Jersey Foundation

35 Halsey Street, Suite 4B

Newark, NJ 07102

Attorneys for Amicus-Curiae

3

OPINION OF THE COURT

AMBRO, Circuit Judge:

The primary issues presented in this appeal from the

District Court’s order denying preliminary injunctive relief

are whether the Free Speech and Free Exercise Clauses of

the First Amendment allow the Borough of Tenafly, New

Jersey, which has permitted various secularly motivated

violations of a facially neutral ordinance, to invoke that

ordinance against comparable religiously motivated acts by

Orthodox Jews. Because there is no evidence that the acts

in question are expressive, we hold that the Free Speech

Clause does not apply. We further hold, however, that the

Borough’s selective enforcement of its ordinance likely

violated the Free Exercise Clause. Because the other

requirements for injunctive relief are satisfied, we reverse

and direct the District Court to issue a preliminary

injunction.

I. Background

An ordinance in the Borough of Tenafly, which

encompasses 4.4 square miles and has a population of

13,806,1 provides in pertinent part: "No person shall place

any sign or advertisement, or other matter upon any pole,

tree, curbstone, sidewalk or elsewhere, in any public street

or public place, excepting such as may be authorized by

this or any other ordinance of the Borough." Tenafly, N.J.,

Ordinance 691 Article VIII(7) (1954).2 Although Ordinance

691 does not allow Borough officials to make exceptions on

a case-by-case basis, in practice they have often done so.

House number signs nailed to utility poles in plain view are

_________________________________________________________________

1. See Borough of Tenafly, About Tenafly, at http://www.tenaflynj.org/

about.htm (last visited September 20, 2002).

2. Our description of the facts is based on our independent review of the

record because, as explained in more detail below, the First Amendment

bars us from deferring to the District Court’s factual findings unless they

involve witness credibility. See Hurley v. Irish-American Gay, Lesbian &

Bisexual Group of Boston, 515 U.S. 557, 567 (1995).

4

frequently left in place. Local churches are tacitly allowed to

post permanent directional signs bearing crosses on

municipal property. Lost animal signs and other private

postings often remain undisturbed by Borough officials.

Orange ribbons were affixed to utility poles "for a lengthy

period of time" by supporters of the local high school during

a protracted controversy over school regionalization, but

Borough officials made no effort to remove them. Every

year, officials in the small community permit the local

Chamber of Commerce to affix holiday displays to the

Borough’s utility poles for approximately six weeks during

the Christmas holiday season. Red ribbons, wreaths, and

seasonal holiday lights are attached to the Borough’s utility

poles as part of these displays.

The plaintiffs in this case are Orthodox Jewish residents

of Tenafly3 whose faith forbids them from pushing or

carrying objects outside their homes on the Sabbath or

Yom Kippur.4 In accordance with a religious convention

practiced by Orthodox Jews for over two thousand years,

however, the plaintiffs believe they may engage in such

activities outside their homes on the Sabbath within an

eruv, a ceremonial demarcation of an area. Tenafly Eruv

Ass’n, Inc. v. Borough of Tenafly, 155 F. Supp. 2d 142, 146

(D.N.J. 2001). An eruv extends the space within which

pushing and carrying is permitted on the Sabbath beyond

the boundaries of the home, thereby enabling, for example,

the plaintiffs to push baby strollers and wheelchairs, and

carry canes and walkers, when traveling between home and

synagogue. Without an eruv Orthodox Jews who have small

children or are disabled typically cannot attend synagogue

on the Sabbath.

_________________________________________________________________

3. Tenafly Eruv Association, Inc. ("TEAI") is an organization formed to

promote the creation of an eruv in Tenafly. Chaim Book, Yosifa Book,

and Stefanie Dardik Gotlieb live in Tenafly. At the time of briefing in this

appeal, Stephen Brenner was not a Tenafly resident, but was building a

house in Tenafly and planned to move there once it was completed. For

simplicity, we refer to TEAI and the individual plaintiffs collectively as

"the plaintiffs" throughout this opinion.

4. For simplicity, we refer throughout the remainder of our opinion only

to the Sabbath.

5

Centuries ago, an eruv would be built using ropes and

wooden poles. Today, Orthodox Jews can construct an eruv

by attaching lechis--thin black strips made of the same

hard plastic material as, and nearly identical to, the

coverings on ordinary ground wires--vertically along utility

poles. Along with preexisting horizontal overhead utility

lines, the lechis designate an eruv’s boundaries.5 Unless one

knows which black plastic strips are lechis and which are

utility wires, it is "absolutely impossible" to distinguish the

two. Id. at 149. Throughout this litigation, the plaintiffs

have maintained that an eruv (as well as each constituent

lechi) is "not a religious symbol," but rather is an item with

"religious significance." Id. at 148.

On June 1, 1999, Erez Gotlieb and Gary Osen, two

Orthodox Jews who are not parties to this case, met with

Tenafly Mayor Ann Moscovitz to discuss creating an eruv in

the Borough. Gotlieb and Osen met with Moscovitz because

under Orthodox Jewish law an eruv is not valid unless a

civil official with jurisdiction over the circumscribed area

issues a ceremonial proclamation "renting" the area for a

nominal fee (e.g., one dollar). The Mayor said she lacked

authority to issue the requested proclamation, but agreed

to bring the matter to the attention of the Borough Council,

the Borough’s legislative branch.6 She did not mention

Ordinance 691 or suggest that affixing lechis to utility poles

might violate any other ordinance.

At the next Council meeting, on July 8, 1999, the

Council and approximately thirty Tenafly residents debated

whether the Borough should grant the proclamation. Many

of those present expressed vehement objections prompted

by their fear that an eruv would encourage Orthodox Jews

to move to Tenafly. A Council member whom the District

Court was unable to identify noted "a concern that the

_________________________________________________________________

5. Many major cities across the United States--such as Washington,

D.C., New York, Chicago, Philadelphia, Los Angeles, Baltimore, Atlanta,

and Cincinnati--have one or more eruvs. Both the White House and the

United States Supreme Court are within the boundaries of an eruv.

6. Six Council members compose the Borough’s legislative branch. The

Mayor does not participate in lawmaking unless the Council is

deadlocked, in which case she casts the tie-breaking vote.

6

Orthodoxy would take over" Tenafly. Id. at 151-52. One

Council member voiced his "serious concern" that "Ultra-

Orthodox" Jews might "stone[ ] cars that drive down the

streets on the Sabbath." Id. at 153-54. The Borough

Attorney participated in the debate. Neither he nor anyone

else mentioned Ordinance 691 or indicated that attaching

lechis to utility poles might be unlawful.

The Council decided to demand a formal, written

proposal before voting on whether to issue the

proclamation. Mayor Moscovitz advised Gotlieb and Osen,

who did not attend the meeting, that the Council was

unlikely to grant their request for a proclamation, but

invited them to submit a formal application. Frustrated by

the Borough’s reticence, in August 1999 TEAI asked Bergen

County Executive William P. Schuber, whose jurisdiction

includes Tenafly, to issue the ceremonial proclamation

necessary to validate the eruv. On December 15, 1999, he

did so. The constitutionality of this action is not challenged

in this case, and neither Schuber nor any other Bergen

County official is a party.

Verizon, the local telephone company, owns the utility

poles in Tenafly, though the poles are located on the

Borough’s property.7 In April 2000, the plaintiffs asked

Verizon for permission to attach lechis to its utility poles.

The plaintiffs said in a sworn statement, which the District

Court found "credible," that they did not believe any

municipal ordinance prohibited them from doing so, and

thus that they did not need the Council’s permission. Id. at

155. After the plaintiffs informed Verizon about the

proclamation, they say, the company’s in-house counsel

researched whether municipal approval was required and

advised the plaintiffs that it was not.

In June 2000 Cablevision, holder of the local cable

television franchise, volunteered to help the plaintiffs affix

lechis to Verizon’s utility poles as a community service.

With the help of Cablevision personnel and equipment, an

_________________________________________________________________

7. When some of the events pertinent to this case occurred, the company

now known as Verizon was named Bell Atlantic Telephone Company.

155 F. Supp. 2d at 154-55. For convenience we refer to it as Verizon

throughout.

7

eruv was completed in Tenafly sometime in September 2000.8

The plaintiffs represent, and the Borough does not disagree,

that only private funds have supported the eruv and that

no municipal assistance of any kind will be needed to

maintain it.

Borough officials apparently did not learn that an eruv

was being erected in Tenafly until late August 2000. Mayor

Moscovitz and Councilman Charles Lipson met with two

local Jewish leaders on September 14, 2000, to discuss the

matter. One of the Jewish leaders perceived some of the

Mayor’s remarks as derogatory toward Orthodox Jews, and

the meeting was unproductive. Twelve days later, Borough

Administrator Joseph DiGiacomo, acting at the Mayor’s

behest, asked Cablevision why it helped attach the lechis

without the Borough’s permission. According to DiGiacomo,

the company told him that "a Rabbi" had advised it that

TEAI had the necessary government approval. Id. at 158.

On October 10, 2000, Mayor Moscovitz and the Council

directed the Borough Administrator to ask Cablevision to

remove the lechis from the utility poles"as soon as

possible." Id.

On October 23, 2000, Cablevision wrote to the plaintiffs

and informed them that the Borough instructed it to take

down the lechis. Cablevision said it would begin complying

with the Borough’s order within three days unless the

plaintiffs demonstrated they had municipal approval.

Counsel for the plaintiffs subsequently negotiated from the

Borough a thirty-day reprieve to give TEAI an opportunity

to apply for permission from the Council to maintain the

eruv. The letter setting out this agreement, sent by the

plaintiffs’ counsel to Borough Attorney Walter Lesnevich,

states in part: "I also appreciate your advice that the

Borough has no specific ordinance covering this matter or

any particular format for the Eruv Association to follow in

submitting its request." Id. at 159. By the beginning of

November 2000, neither Lesnevich nor any other Borough

_________________________________________________________________

8. According to the District Court, a map of Tenafly, which does not

appear in the appellate record, "suggests" that the eruv enables the

plaintiffs to push and carry objects in 35-40% of the Borough. 155 F.

Supp. 2d at 149.

8

official had raised the possibility that Ordinance 691 or

another ordinance might be relevant to the dispute over the

lechis.

On November 7, 2000, the plaintiffs filed their application

with the Borough, asking the Council not to remove or

order the removal of the lechis. On November 21, 2000, the

Council decided to hold two hearings to allow members of

the public to comment on the plaintiffs’ proposal. The

Council scheduled the first hearing for November 28, 2000,

and the second for December 12, 2000. Fifty-four members

of the public, including plaintiff Chaim Book and other eruv

proponents, spoke at the two hearings. The speakers were

evenly divided between supporters and opponents of the

eruv. During the hearings, Council members did not

express their views until the conclusion of the December 12

hearing. At that hearing, just before the Council voted on

the plaintiffs’ application, one Councilman stated that "[t]o

the best of my knowledge," the Borough had "no ordinance,

no resolution that says that you cannot hang something

from a utility pole." Mayor Moscovitz responded by saying

"[t]here is an ordinance," and Lesnevich then described

Ordinance 691. This exchange was apparently the first time

that Borough officials mentioned Ordinance 691 with

regard to the lechis.

Shortly after Lesnevich brought Ordinance 691 to the

Council members’ attention, the Council voted 5-0 to force

the plaintiffs to remove the lechis.9 The next day, the

Borough ordered Cablevision to take the lechis off the utility

poles "as soon as possible." 155 F. Supp. 2d at 163. The

plaintiffs responded by suing in the District Court on

December 15, 2000, alleging violations of the First and

Fourteenth Amendments, 42 U.S.C. SS 1983 and 1985, and

the Fair Housing Act ("FHA"), 42 U.S.C. S 3604(a), and

seeking an injunction barring the Borough from interfering

with the eruv.10

_________________________________________________________________

9. One Council member was not present and thus did not vote.

10. The plaintiffs did not allege an Equal Protection Clause violation. In

addition, though not relevant to this appeal, the plaintiffs sought

compensatory damages and attorneys’ fees.

9

Pursuant to Federal Rule of Civil Procedure 65(b), the

District Court issued a temporary restraining order

precluding the Borough from disturbing the eruv . Consent

orders extended the duration of the restraint until the

Court ruled on the plaintiffs’ request for a preliminary

injunction. After the parties completed limited discovery,

the Court held an evidentiary hearing that spanned four

days, received additional affidavits, and heard oral

arguments. On August 10, 2001, the Court issued an

opinion denying the plaintiffs’ request for injunctive relief

on the ground that they are not reasonably likely to

succeed on the merits of any of their claims.

The District Court’s discussion began with the plaintiffs’

claim that the Borough violated the First Amendment’s Free

Speech Clause. The Court concluded (albeit without citing

our decision in Troster v. Pennsylvania State Department of

Corrections, 65 F.3d 1086 (3d Cir. 1995)) that the act of

affixing lechis to utility poles is "symbolic speech." 155 F.

Supp. 2d at 173. Next the Court determined that the

Borough’s utility poles are a nonpublic forum, and that the

Borough did not discriminate against the plaintiffs’ religious

viewpoint when it ordered the lechis removed. Id. at 174-80.

The Court acknowledged that the Borough had expressly or

tacitly permitted various facial violations of Ordinance 691,11

such as the holiday displays and church directional signs.

But it distinguished the lechis, reasoning that the other

materials affixed to the utility poles served commercial or

functional purposes, were not religious in nature, and were

not intended to be attached permanently. Id. at 176-78.

Other items frequently affixed to utility poles in violation of

Ordinance 691, such as the lost animal signs and

permanently attached house numbers, did not show

discriminatory enforcement because the Borough said it

made efforts to remove some of them after the plaintiffs

sued. Id. at 177-78. As for the orange ribbons, the Court

_________________________________________________________________

11. The Borough submitted a copy of a separate ordinance that prohibits

posting signs on utility poles. The Borough has not suggested, either to

the District Court or to our Court, that its decision to remove the lechis

was based on that ordinance. Instead, it has maintained throughout this

litigation that its decision was based only on Ordinance 691. See, e.g.,

155 F. Supp. 2d at 159-60.

10

stated that, notwithstanding Mayor Moscovitz’s testimony

and other evidence in the record, it "lack[ed] sufficient

information" to find that the Borough knew about and

tacitly approved them. Id. at 177. The Court concluded that

the Borough’s application of the ordinance did not

discriminate against the plaintiffs’ religious viewpoint, and

thus their free speech claim could not succeed. Id. at 180.

The District Court also rejected the plaintiffs’ claim that

the Borough violated the First Amendment’s Free Exercise

Clause. Id. at 180-86. The Court disagreed with the

plaintiffs’ position that the objective effect of the Borough’s

decision was to discriminate against religiously motivated

activity. It noted that, under Lyng v. Northwest Indian

Cemetery Protective Ass’n, 485 U.S. 439 (1988), the

Borough can deny access to utility poles on its land for a

religion-neutral reason even if doing so imposes an

"incidental" burden on Orthodox Jews’ ability to practice

their religion. 155 F. Supp. 2d at 180-81. The Court

reasoned that because the Borough ordered the lechis

taken down pursuant to Ordinance 691, "a pre-existing,

neutral law of general applicability," the issue was

controlled by the Supreme Court’s ruling in Employment

Division v. Smith, 494 U.S. 872 (1990), rather than by its

subsequent decision in Church of the Lukumi Babalu Aye,

Inc. v. City of Hialeah, 508 U.S. 520 (1993). 155 F. Supp.

2d at 181. The Court did not consider whether its earlier

conclusion that Borough officials chose not to enforce

Ordinance 691 with respect to some secularly motivated

commercial and functional postings, see id. at 177-80,

affected the free exercise analysis. Under Smith , the District

Court reasoned, the Borough Council’s decision to enforce

Ordinance 691 against the eruv had an objectively neutral

effect that did not implicate the Free Exercise Clause. Id.

The Court thought, however, that the Council members’

improper subjective motivations nonetheless necessitated

strict scrutiny under Lukumi. Id. at 183. It found that,

while the Council members had no religious animosity, they

acted because of the "constitutionally impermissible" fear

that the eruv would facilitate the formation of an insular

Orthodox Jewish "community within a community" in

Tenafly. Id. at 182-83. Nevertheless, no Free Exercise

11

Clause violation occurred because the Council members’

decision was "narrowly tailored to further their interest in

avoiding the appearance of an Establishment Clause

concern." Id. at 184 n.26 (emphasis added).

Finally, the Court held that the plaintiffs lack standing to

sue under the FHA because the Borough did not "make

unavailable or deny" housing within the meaning of the

relevant provision, 42 U.S.C. S 3604(a). Id. at 186-90. Every

case finding a violation of S 3604(a), the District Court

noted, involved conduct that "directly affected the

availability of housing," whereas the plaintiffs seek a "non-

housing use of municipal property." Id. at 187.

The Court concluded that, because the plaintiffs were not

reasonably likely to succeed on any of their claims,

injunctive relief was not appropriate. The plaintiffs timely

appealed, giving us jurisdiction pursuant to 28 U.S.C.

S 1292(a)(1),12 and we granted their request for an

injunction prohibiting removal of the lechis pending our

decision. Tenafly Eruv Ass’n, Inc. v. Borough of Tenafly, No.

01-3301 (3d Cir. Sept. 19, 2001) (order).

II. Standard of Review

We review the District Court’s ultimate decision to deny

a preliminary injunction for abuse of discretion. See Dam

Things from Denmark, a/k/a Troll Co. ApS, v. Russ Berrie &

Co., 290 F.3d 548, 556 (3d Cir. 2002); St. Thomas-St. John

Hotel & Tourism Ass’n, Inc. v. Virgin Islands, 218 F.3d 232,

235 (3d Cir. 2000). But "‘any determination that is a

prerequisite to the issuance of an injunction . . . is reviewed

according to the standard applicable to that particular

determination."’ Southco, Inc. v. Kanebridge Corp., 258 F.3d

148, 150-51 (3d Cir. 2001) (quoting Am. Tel. & Tel. Co. v.

Winback and Conserve Program, Inc., 42 F.3d 1421, 1427

(3d Cir. 1994)). Thus "we exercise plenary review over the

District Court’s conclusions of law and its application of the

law to the facts."’ Id. at 151 (quoting Duraco Prods., Inc. v.

Joy Plastic Enters., Ltd., 40 F.3d 1431, 1438 (3d Cir.

1994)).

_________________________________________________________________

12. The District Court had jurisdiction under 28 U.S.C. SS 1331 and

1343.

12

Ordinarily we will not disturb the factual findings

supporting the disposition of a preliminary injunction

motion in the absence of clear error. See Fed. R. Civ. P.

52(a); Novartis Consumer Health, Inc. v. Johnson & Johnson-

Merck Consumer Pharm. Co., 290 F.3d 578, 586 (3d Cir.

2002); S. Camden Citizens in Action v. N.J. Dep’t of Envtl.

Protection, 274 F.3d 771, 777 (3d Cir. 2001). This case,

however, involves First Amendment claims, and "the

reaches of the First Amendment are ultimately defined by

the facts it is held to embrace." Hurley v. Irish-American

Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557,

567 (1995). Therefore, we have "a constitutional duty to

conduct an independent examination of the record as a

whole," and we cannot defer to the District Court’s factual

findings unless they concern witnesses’ credibility. Id.; Bose

Corp. v. Consumers Union of United States, Inc., 466 U.S.

485, 499, 510-11 (1984); Christ’s Bride Ministries, Inc. v.

Southeastern Pa. Transp. Auth., 148 F.3d 242, 247 (3d Cir.

1998). Accordingly, we examine independently the facts in

the record and "draw our own inferences" from them.

Christ’s Bride, 148 F.3d at 247.

III. Discussion

Four factors governed the District Court’s decision

whether to issue a preliminary injunction barring the

Borough from removing the eruv. To obtain an injunction,

the plaintiffs had to demonstrate (1) that they are

reasonably likely to prevail eventually in the litigation and

(2) that they are likely to suffer irreparable injury without

relief. See S. Camden Citizens, 274 F.3d at 777; Adams v.

Freedom Forge Corp., 204 F.3d 475, 484 (3d Cir. 2000). If

these two threshold showings are made the District Court

then considers, to the extent relevant, (3) whether an

injunction would harm the Borough more than denying

relief would harm the plaintiffs and (4) whether granting

relief would serve the public interest. See S. Camden

Citizens, 274 F.3d at 777; Freedom Forge, 204 F.3d at 484.

Because the District Court ended its analysis after

concluding that the plaintiffs did not show that their claims

are reasonably likely to succeed, see 155 F. Supp. 2d at

171, 191, our discussion focuses on that factor. Disposing

13

of the plaintiffs’ FHA claim in the margin,13 we will first

_________________________________________________________________

13. We can dispense quickly with the plaintiffs’ contention that they have

a valid FHA claim. One necessary element of a cause of action under the

FHA is that the plaintiffs must be "aggrieved person[s]," 42 U.S.C.

S 3613(a)(1)(A), which in this context means victims of "a discriminatory

housing practice," id. S 3602, that"make[s] unavailable or den[ies]"

housing to them based on their religion. Id.S 3604(a). Some of the

plaintiffs lived in the Borough before the eruv was established. 155 F.

Supp. 2d at 188. Therefore, while the plaintiffs claim that the Borough

wants to remove the eruv to discourage Orthodox Jews from moving into

town, they do not claim that removing the eruv would make housing

within the Borough "unavailable" to them. Instead, they argue that

removing the eruv would make their living in the Borough much less

desirable. But they concede that the Borough’s decision did not directly

affect anyone’s current or future home. To our knowledge, no court has

stretched the "make unavailable or deny" language of S 3604(a) to

encompass actions that both (1) do not actually make it more difficult (as

opposed to less desirable) to obtain housing and (2) do not directly

regulate or zone housing or activities within the home. See, e.g., LeBlanc-

Sternberg v. Fletcher, 67 F.3d 412, 424 (2d Cir. 1995) (stating that the

pertinent language "has been interpreted to reach a wide variety of

discriminatory housing practices, including discriminatory zoning

restrictions"); South-Suburban Hous. Ctr. v. Greater S. Suburban Bd. of

Realtors, 935 F.2d 868, 882 (7th Cir. 1991) (stating that the relevant

language of S 3604(a) applies to "actions by individuals or governmental

units which directly affect the availability of housing") (internal quotation

marks omitted). We believe that expanding S 3604(a) as the plaintiffs

suggest is unwarranted, as it would "create an FHA claim in every

circumstance where a religious group is denied a request to use

municipal property to make an area more appealing for the private

practice of their religion," even if the municipal action has nothing to do

with housing. 155 F. Supp. 2d at 189.

We note, however, that we do not agree with the Borough’s contention

--and the District Court’s acquiescence, if its use of the word "standing"

was meant to signify a perceived lack of subject-matter jurisdiction over

the plaintiffs’ FHA claim--that the issue is jurisdictional. When the

presence or absence of a cause of action depends on how statutory

language is interpreted (as the plaintiffs’ FHA claim does), the absence of

a valid statutory cause of action does not preclude jurisdiction unless

the claim is frivolous or a transparent attempt to manufacture federal-

court jurisdiction where none existed. See Verizon Md., Inc. v. Pub. Serv.

Comm’n of Md., 122 S. Ct. 1753, 1758-59 (2002); Steel Co. v. Citizens for

a Better Env’t, 523 U.S. 83, 89 (1998); Bell v. Hood, 327 U.S. 678, 682-

85 (1946). Because the plaintiffs’ FHA claim is neither, we have

14

consider the plaintiffs’ free speech claim and then discuss

their free exercise claim.14

A. The Free Speech Claim

The First Amendment’s Free Speech Clause provides that

"Congress shall make no law . . . abridging the freedom of

speech." U.S. Const. amend. I. "Speech" is not construed

literally, or even limited to the use of words. Constitutional

protection is afforded not only to speaking and writing, but

also to some nonverbal acts of communication, viz.,

"expressive conduct" (or "symbolic speech"). Affixing lechis

to utility poles does not involve the use of words, so the

plaintiffs’ behavior is protected by the Free Speech Clause

only if it constitutes expressive conduct.15

_________________________________________________________________

jurisdiction to consider it. See Growth Horizons, Inc. v. Delaware County,

983 F.2d 1277, 1280-84 (3d Cir. 1993) (holding that district court’s

determination that defendant did not "make unavailable or deny"

housing under S 3604(f) was "a judgment on the merits rather than a

jurisdictional decision" because the plaintiff’s claim, though ultimately

unsuccessful, was not frivolous).

14. Citing Elber v. City of Newark, 256 A.2d 44 (N.J. 1969), the plaintiffs

attempt to raise a claim under New Jersey law. Presumably because the

plaintiffs did not include this claim in their complaint, the District Court

did not discuss it. We shall do likewise.

15. The Borough failed to contend in its brief that the act of affixing

lechis to utility poles is not "speech" within the meaning of the First

Amendment. Ordinarily we avoid addressing issues not raised in a

party’s opening brief. See, e.g., Kirschbaum v. WRGSB Associates, 243

F.3d 145, 151 n.1 (3d Cir. 2001). However, "[w]hen an issue or claim is

properly before the court, the court is not limited to the particular legal

theories advanced by the parties, but rather retains the independent

power to identify and apply the proper construction of governing law."

Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991). Thus we "may

consider an issue ‘antecedent to . . . and ultimately dispositive of ’ the

dispute before [us], even an issue the parties fail to identify and brief."

United Nat’l Bank v. Indep. Ins. Agents, 508 U.S. 439, 447 (1993)

(quoting Arcadia v. Ohio Power Co., 498 U.S. 73, 77 (1990)) (omission in

original). Whether the Free Speech Clause applies is a threshold question

necessary to a proper analysis of the parties’ arguments. Therefore, we

requested that the parties provide supplemental memoranda on the

issue, at which time the Borough initiated its argument that no

protected expression is involved here.

15

Conduct is protected by the First Amendment when"the

nature of [the] activity, combined with the factual context

and environment in which it was undertaken," shows that

the "activity was sufficiently imbued with elements of

communication to fall within the [First Amendment’s]

scope." Spence v. Washington, 418 U.S. 405, 409-10 (1974);

Troster v. Pa. State Dep’t of Corrections, 65 F.3d 1086, 1090

(3d Cir. 1995). Context is crucial to evaluating an

expressive conduct claim because "the context may give

meaning to the symbol" or act in question. Spence, 418

U.S. at 410.

Until 1995, the Supreme Court determined whether

speech is "sufficiently imbued with elements of

communication" by asking "whether ‘[a]n intent to convey a

particularized message was present, and [whether] in the

surrounding circumstances the likelihood was great that

the message would be understood by those who viewed it."’

Texas v. Johnson, 491 U.S. 397, 404 (1989) (quoting

Spence, 418 U.S. at 410-11). Applying this two-prong test

(the "Spence-Johnson test"), the Supreme Court held that

the First Amendment shelters certain forms of nonverbal

communication. For instance, Johnson held that burning

an American flag as part of a demonstration against the

Reagan Administration’s policies that coincided with the

1984 Republican Party convention was "speech" because its

"expressive, overtly political nature" was"both intentional

and overwhelmingly apparent" to the protestors’ audience.

491 U.S. at 399, 406. Similarly, Spence held that attaching

a peace symbol to an American flag and displaying the

"peace flag" upside down was protected expression. The

actor "testified that he put a peace symbol on the flag and

displayed it to public view as a protest against the invasion

of Cambodia and the killings at Kent State University,

events which occurred a few days prior to his arrest," and

"it would have been difficult for the great majority of

citizens to miss the drift of appellant’s point at the time

that he made it." 418 U.S. at 408, 410. Additional types of

nonverbal communication have also been deemed

constitutionally protected. See, e.g., Schacht v. United

States, 398 U.S. 58, 62-63 (1970) (wearing United States

military uniforms as part of theatrical presentation

opposing Vietnam War); Tinker v. Des Moines Indep.

16

Community Sch. Dist., 393 U.S. 503, 505-06 (1969)

(wearing black armband at school to protest Vietnam War);

W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 632 (1943)

(saluting the American flag to show allegiance to the United

States); Stromberg v. California, 283 U.S. 359, 369 (1931)

(displaying red flag to express opposition to organized

government). In other cases, the Court assumed, without

deciding, that the nonverbal political demonstrations at

issue implicated the First Amendment. Clark v. Community

for Creative Non-Violence, 468 U.S. 288, 293 (1984)

(sleeping in a public park in front of the White House and

on the Washington Mall, in the middle of winter, to protest

homelessness); United States v. O’Brien, 391 U.S. 367, 376

(1968) (burning Selective Service registration certificate on

courthouse steps to protest war).16

The Supreme Court’s unanimous 1995 opinion, Hurley v.

Irish-American Gay, Lesbian and Bisexual Group of Boston,

515 U.S. 557 (1995), modified somewhat the test for

determining when conduct constitutes "speech." In Hurley,

a group of gays, lesbians, and bisexuals of Irish ancestry

sued under a state public accommodations law barring

discrimination on the basis of sexual orientation in an

attempt to gain admission to a private St. Patrick’s Day

parade in which an array of disparate groups participated.

While the parade organizers asserted their First

Amendment right to shape the content of their speech, the

_________________________________________________________________

16. Some Justices have viewed other examples of nonverbal political

protest as sufficiently communicative to receive First Amendment

protection. See Brown v. Louisiana, 383 U.S. 131, 142 (1966) (plurality

opinion) (finding that black citizens who silently assembled in public

library to protest segregated public facilities engaged in expressive

conduct); Garner v. Louisiana, 368 U.S. 157, 201 (1961) (Harlan, J.,

concurring in the judgment) (concluding that black persons who sat at

"white" lunch counters to protest segregated dining facilities were

engaging in symbolic speech and that their disturbing-the-peace

convictions, which the majority reversed on insufficient evidence

grounds, violated the First Amendment). In addition, the Supreme Court

recently recognized a symbolic speech claim in a different context. See

City of Erie v. Pap’s A.M., 529 U.S. 277, 289 (2000) (plurality opinion)

(stating summarily that nude erotic dancing is "expressive conduct,"

though "it falls only within the outer ambit of the First Amendment’s

protection").

17

plaintiffs maintained that the organizers had no First

Amendment interest because their lack of selectivity in

accepting participants made it impossible for spectators to

discern a specific message. Rejecting the plaintiffs’

contention, the Supreme Court explained that "a narrow,

succinctly articulable message is not a condition of

constitutional protection, which if confined to expressions

conveying a ‘particularized message,’ would never reach the

unquestionably shielded painting of Jackson Pollak, music

of Arnold Schoenberg, or Jabberwocky verse of Lewis

Carroll."17 Id. at 569 (quoting Spence, 418 U.S. at 411).

By establishing that "a private speaker does not forfeit

constitutional protection simply by combining multifarious

voices, or by failing to edit their themes to isolate an exact

message as the exclusive subject matter of the speech,"

Hurley eliminated the "particularized message" aspect of the

Spence-Johnson test. Id. at 569-70. The Hurley Court had

no need to formulate a new test, however, because--unlike

conduct that is not normally communicative--parades are

inherently expressive. Id. at 568 ("Parades are thus a form

of expression, not just motion, and the inherent

expressiveness of marching to make a point explains our

cases involving protest marches."). Thus Hurley left open

how courts should evaluate symbolic speech claims.

Before Hurley, we treated the Spence-Johnson factors as

prerequisites for conduct to be deemed expressive. See

Steirer by Steirer v. Bethlehem Area Sch. Dist., 987 F.2d

989, 995, 997 (3d Cir. 1993) (holding that participating in

community service is not expressive conduct). But after

Hurley, our decision in Troster v. Pennsylvania State

Department of Corrections, 65 F.3d 1086 (3d Cir. 1995),

concluded that Spence (and, implicitly, Johnson as well) set

signposts rather than requirements, and that its two factors

can no longer be viewed as the only criteria. See id. at 1090

& n.1. Because Spence "contained no language of

necessity," we adopted the following standard: conduct is

_________________________________________________________________

17. The Hurley Court proceeded to hold that applying the public

accommodations law to force the parade organizers to include the

plaintiffs violated the organizers’ First Amendment right to select the

components of their message. Id. at 579.

18

expressive if, "considering ‘the nature of[the] activity,

combined with the factual context and environment in

which it was undertaken,’ we are led to the conclusion that

the ‘activity was sufficiently imbued with elements of

communication to fall within the scope of the First and

Fourteenth Amendments."’18Id. at 1090 (quoting Spence,

418 U.S. at 409-10) (alteration in original). We emphasized

that this "is a fact-sensitive, context-dependent inquiry,"

and that the putative speaker bears the burden of proving

that his or her conduct is expressive. Id.

We then applied this formulation to reject a state

corrections officer’s claim that a regulation mandating that

each corrections officer wear an American flag patch on his

uniform’s right shirt-sleeve, with the star field facing his

rear, violated the First Amendment by compelling him to

engage in expressive conduct. Id. at 1088. The officer

believed that compulsory display debases the flag and that

"displaying the flag with its star field to the rear signifies

cowardice and retreat from the principles for which the flag

stands." Id. Though we recognized the strength of the

officer’s convictions, we determined that he did not show

that the act of wearing a flag patch was sufficiently

communicative to receive First Amendment protection, as

he did not present "evidence to support his otherwise bare

_________________________________________________________________

18. Outside our Circuit, courts continue to view the Spence-Johnson test

as the governing standard for determining whether conduct constitutes

protected expression. See, e.g., Gun Owners’ Action League, Inc. v. Swift,

284 F.3d 198, 211 (1st Cir. 2002); Littlefield v. Forney Indep. Sch. Dist.,

268 F.3d 275, 283 (5th Cir. 2001); Hutchins v. District of Columbia, 188

F.3d 531, 548 (D.C. Cir. 1999); Colacurcio v. City of Kent, 163 F.3d 545,

549 n.1 (9th Cir. 1998); Stephenson v. Davenport Cmty. Sch. Dist., 110

F.3d 1303, 1307 n.4 (8th Cir. 1997); United States v. Lewis, 2002 WL

31055185, *8 (S.D. W. Va. Sept. 11, 2002); Daly v. Harris, 215 F. Supp.

2d 1098, 1108 (D. Haw. 2002); Isaacs ex rel. Isaacs v. Bd. of Educ., 40

F. Supp. 2d 335, 336 (D. Md. 1999); Al-Almin v. City of New York, 979

F. Supp. 168, 172 (E.D.N.Y. 1997); Fighting Finest, Inc. v. Bratton, 898

F. Supp. 192, 195 (S.D.N.Y. 1995); Gallo v. County of Sonoma, 120 Cal.

Rptr. 2d 550, 569 (Cal. Ct. App. 2002), State v. Machholz, 574 N.W.2d

415, 419-20 (Minn. 1998); Binkowski v. State, 731 A.2d 64, 70 (N.J.

Super. Ct. App. Div. 1999); State v. Janssen, 580 N.W.2d 260, 266 n.11

(Wis. 1998); State v. Berrill, 474 S.E.2d 508, 516 (W. Va. 1996).

19

assertion that the flag patch regulation compels expressive

conduct." Id. at 1091 n.4.

Our discussion in Troster focused on two inquiries. First,

we examined whether the officer intended subjectively (i.e.,

actually intended) for his conduct to communicate to

persons whom he expected to observe it (i.e., his intended

audience). We determined that there was no proof that his

conduct was "demonstrative of an attitude or belief" or that

he "actually assert[ed] anything to anyone." Id. at 1091-92.

Second, we considered whether observers understood the

message the officer intended his conduct to convey. The

record contained no evidence that "observers would likely

understand the patch or the wearer to be telling them

anything about the wearers’ beliefs" or "that the flag patch

on the correctional officers’ uniform will relay any message

(ideological or otherwise) to anyone." Id. at 1091-92

(emphases in original). Therefore, the officer’s compelled

speech claim failed because he did not show that the

conduct in which he was forced to engage was expressive.

Our emphasis in Troster on the putative speaker’s burden

of proving that his conduct is "sufficiently imbued with

elements of communication" is important to our resolution

of the plaintiffs’ expressive conduct claim in this case. If the

putative speaker’s burden were "limited to ‘the

advancement of a plausible contention’ that [his or her]

conduct is expressive"--a view espoused by a plurality of

the D.C. Circuit but rejected by the Supreme Court in Clark

--the result "would be to create a rule that all conduct is

presumptively expressive." Clark, 468 U.S. at 293 n.5. Such

a rule would be inconsistent with the Supreme Court’s

repeated admonition that "[w]e cannot accept the view that

an apparently limitless variety of conduct can be labeled

‘speech."’ O’Brien, 391 U.S. at 376; see also Johnson, 491

U.S. at 404; Spence, 418 U.S. at 409. Therefore, as we

stressed in Troster, 65 F.3d at 1091-92, and as the

Supreme Court held in Clark, "it is the obligation of the

person desiring to engage in assertedly expressive conduct

to demonstrate that the First Amendment even applies."

Clark, 468 U.S. at 293 n.5.

With this background as context, we conclude that the

plaintiffs have not met their burden of showing that affixing

20

lechis to utility poles is "sufficiently imbued with elements

of communication" to be deemed expressive conduct. The

record indicates that the lechis were attached for the benefit

of other Orthodox Jews, not the general public. Therefore,

if the plaintiffs’ conduct is expressive, their intended

audience is other Orthodox Jews. But the plaintiffs have

not introduced evidence that the lechis are meant to

demonstrate a belief or assert anything to Orthodox Jews or

that Orthodox Jews "likely understand" the eruv "to be

telling them anything," i.e., that they discern "any message

(ideological or otherwise)" from the lechis .19 Troster, 65 F.3d

at 1091 (emphases in original). Instead, on the record

before us, it appears that the eruv serves a purely

functional, non-communicative purpose indistinguishable,

for free speech purposes, from that of a fence surrounding

a yard or a wall surrounding a building.

Rather than "actually assert[ing] anything to anyone," id.

at 1092, it seems that the eruv simply demarcates the

space within which certain activities otherwise forbidden on

the Sabbath are allowed. Plaintiff Chaim Book described

the eruv as a "boundary" that "requires physical

demarcation," a function historically achieved by"rop[ing]

an area off." Similarly, at oral argument counsel for the

plaintiffs told us that the lechis "replace[ ] the pole[s] that

would be used prior to the time there were telephone poles"

to designate the eruv’s boundaries. While the plaintiffs

describe the eruv in functional terms, explaining that it

establishes an area within which Orthodox Jews may

engage in certain otherwise impermissible activities, they

offer no evidence that it communicates anything. The only

evidence the plaintiffs introduced with respect to the

religious significance of the eruv was the affidavit of Rabbi

Hershel Schachter of Yeshiva University, an expert on

Orthodox Jewish law. Rabbi Schachter explained that the

eruv enables couples with young children and persons who

use wheelchairs to attend synagogue on the Sabbath. He

did not, however, suggest that the Orthodox Jews who affix

_________________________________________________________________

19. As we stated above, see supra note 15, it appears that until we

requested briefing on the issue the parties merely assumed that the

lechis are protected by the First Amendment.

21

lechis intend to send any message thereby, or that the eruv

conveys any message to Orthodox Jews.

Further, there is no evidence that Orthodox Jews receive

a message or ascertain the eruv’s boundaries by looking at

the lechis. To the contrary, Rabbi Howard Jachter, speaking

on behalf of the TEAI, said that "most Orthodox Jews do

not . . . would not know how to make an eruv, wouldn’t see

where the eruv is, how it is. A rabbi wouldn’t know how it

is." Even plaintiff Chaim Book, who is obviously familiar

with the eruv’s boundaries and the lechis’ locations, said, "I,

who know some of the poles have lechis, have a hard time

recognizing the lechi on the pole by just looking at it." In

addition, plaintiffs’ complaint states that "the eruv is not a

religious symbol." Thus there is no evidence contradicting

the Borough’s assertion at oral argument--which the

plaintiffs did not dispute--that Orthodox Jews learn the

eruv’s boundaries by word of mouth from the persons

charged with erecting and inspecting it.

Even if the plaintiffs had introduced evidence that the

lechis serve a boundary function, that would be insufficient

to prove they are "sufficiently imbued with elements of

communication to fall within the scope of the First and

Fourteenth Amendments." Troster, 65 F.3d at 1090

(internal quotation marks omitted). All boundary lines

delineate the realms within which certain activities are or

are not allowed. For instance, the invisible boundary

between Nevada and Utah separates an area where

gambling is legal from one where it is not. A homeowner’s

fence demarcates where his neighbor’s garden must stop.

The walls of a synagogue delineate the space where

congregational worship takes place. But geographical

boundary lines, fences, and walls are simply not protected

expression in the absence of evidence that some"attitude

or belief," Troster, 65 F.3d at 1091, is conveyed or received

from them. Cf. Dallas v. Stanglin, 490 U.S. 19, 25 (1989)

("It is possible to find some kernel of expression in almost

every activity a person undertakes--for example, walking

down the street or meeting one’s friends at a shopping mall

--but such a kernel is not sufficient to bring the activity

within the protection of the First Amendment."); Pro v.

Donatucci, 81 F.3d 1283, 1293 (3d Cir. 1996) (Roth, J.,

22

dissenting) (noting that "expression and communication are

the crucial attributes of speech," that "[n]owhere is this

stress on expression and communication more clear than

in the Court’s approach to speech that falls outside the

traditional domain of the spoken or written word," and that

"[t]he classic examples of conduct-as-speech all contain

patently expressive messages."). Otherwise, the act of

constructing houses of worship would implicate the Free

Speech Clause, whereas courts consistently analyze the

constitutionality of zoning regulations limiting such

construction under the Free Exercise Clause, not the Free

Speech Clause. See, e.g., City of Boerne v. Flores, 521 U.S.

507, 534 (1997); Messiah Baptist Church v. County of

Jefferson, 859 F.2d 820, 823-26 (10th Cir. 1988);

Lakewood, Ohio Congregation of Jehovah’s Witnesses, Inc.

v. City of Lakewood, 699 F.2d 303, 307-08 (6th Cir. 1983);

Church of Jesus Christ of Latter-Day Saints v. Jefferson

County, 741 F. Supp. 1522, 1527-34 (N.D. Ala. 1990); cf.

Congregation Kol Ami v. Abington Township, 2002 WL

31312280 (3d Cir. Oct. 16, 2002). Moreover, if solely the

act of erecting a wall separating the interior of a building

from the secular world constituted "speech," every religious

group that wanted to challenge a zoning regulation

preventing them from constructing a house of worship

could raise a "hybrid" rights claim triggering strict scrutiny,

see Employment Division v. Smith, 494 U.S. 872, 881-82

(1990),20 a notion so astonishing that we are unaware of

any court--or even any law review article--that has

suggested it.

Plaintiffs maintain that, although the eruv is functional,

it is also expressive, just as the 18-foot Chanukah menorah

_________________________________________________________________

20. As explained in more detail below, Smith held that the Free Exercise

Clause offers no protection when a neutral, generally applicable law

incidentally burdens religious practice, with a possible exception for

"hybrid" rights situations in which both the right to free exercise of

religion and another constitutional right are implicated. 494 U.S. at 879,

881-82. If the law imposing the burden on religious freedom is either not

neutral or not generally applicable, however, it violates the First

Amendment unless it satisfies strict scrutiny (i.e., unless it is narrowly

tailored to advance a compelling government interest). See Church of the

Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546 (1993).

23

in Allegheny County v. Greater Pittsburgh ACLU , 492 U.S.

573 (1989), was expressive even though the functional

purpose of menorahs is to hold candles. To the extent that

the plaintiffs’ point is that functionality and expression are

"not mutually exclusive," we do not disagree; things

ordinarily used for functional purposes can be used for

communicative purposes as well. Name.Space, Inc. v.

Network Solutions, Inc., 202 F.3d 573, 586 (2d Cir. 2000)

(concluding that Internet domain names are ordinarily

functional, but can be expressive if they contain a message,

e.g., ".jones_for_president"). But there is no evidence that

the eruv is an example of such overlapping purposes,

whereas there was ample evidence to that effect in

Allegheny. As part of a holiday display that stood at the

entrance to a government building and included a 45-foot

Christmas tree, the 18-foot menorah was both intended

and understood to express "a recognition that Christmas is

not the only traditional way of observing the winter-holiday

season" and "an acknowledgment of Chanukah as a

contemporaneous alternative tradition." Allegheny, 492 U.S.

at 617-18.

In sharp contrast here, there is no evidence that

Orthodox Jews intend or understand the eruv to

communicate any idea or message. Rather, the evidence

shows that the eruv--like a fence around a house or the

walls forming a synagogue--serves the purely functional

purpose of delineating an area within which certain

activities are permitted.

We also reject the plaintiffs’ contention that the eruv may

be deemed expressive simply because some residents of

Tenafly who are not Orthodox Jews discern various

unintended messages emanating from it, notwithstanding

that these persons would not be intended recipients even if

the lechis were meant to send a message. To accept this

position would mean that whether conduct is expressive

depends entirely on how observers perceive it--even if the

actor had no communicative intent, and even if the actor

disapproves of the message (or messages) discerned by the

observers. See Troster, 65 F.3d at 1092 (noting the

difference between an observer’s independent inference

from an actor’s behavior and an observer’s receipt of a

24

nonverbal message intentionally sent by the actor); Peter

Meijes Tiersma, Nonverbal Communication and the Freedom

of "Speech", 1993 Wis. L. Rev. 1525, 1553, 1561-62 (stating

that nonverbal conduct is expressive only if it involves "a

conscious transfer of information," i.e.,"an attempt to

communicate" by the actor).

Finally, we cannot accept the plaintiffs’ argument that, by

analogy to the protection afforded newsracks, the eruv is

protected under the First Amendment. Relying on City of

Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750 (1988),

the plaintiffs insist that, just as newsracks facilitate the

distribution of newspapers, the eruv facilitates religious

worship.21 But City of Lakewood did not treat newsracks as

protected based on the sweeping rationale that they

facilitate speech, but rather because they are inextricably

intertwined with speech. Id. at 768 ("The actual ‘activity’ at

issue here is the circulation of newspapers, which is

constitutionally protected."). Unlike a newsrack, which

facilitates the paradigm of communication (the sale of

newspapers), there is no evidence that the eruv is

inextricably linked to a communicative activity. Instead, the

record shows that the eruv exists solely to designate the

boundaries within which Orthodox Jews can engage in

certain activities on the Sabbath. Therefore, City of

Lakewood does not support the plaintiffs’ position that the

non-communicative act of delineating an area constitutes

protected expression.

In sum, as in Troster, the plaintiffs offer nothing more

than a "bare assertion" that their conduct is expressive.22

65 F.3d at 1091 n.4. Because this does not satisfy the

plaintiffs’ burden of proof, their free speech claim fails.23

_________________________________________________________________

21. City of Lakewood, the Supreme Court sustained a facial challenge to

an ordinance granting the mayor "unfettered discretion" to grant or deny

permits to place newsracks on public property. 486 U.S. at 772.

22. Our holding is limited to the record in this case and does not

necessarily preclude the possibility that a party in another case might

introduce evidence showing that attaching lechis to utility poles is

conduct protected by the Free Speech Clause.

23. Accordingly, the plaintiffs cannot assert a"hybrid rights" claim under

the Free Exercise Clause. See infra note 26.

25

B. The Free Exercise Claim

1. Determining the appropriate level of scrutiny

The Free Exercise Clause, which binds the Borough

pursuant to the Fourteenth Amendment, see Cantwell v.

Connecticut, 310 U.S. 296, 303 (1940), provides that

"Congress shall make no law . . . prohibiting the free

exercise [of religion]." U.S. Const. amend. I. Depending on

the nature of the challenged law or government action, a

free exercise claim can prompt either strict scrutiny or

rational basis review.24

If a law is "neutral" and "generally applicable," and

burdens religious conduct only incidentally, the Free

Exercise Clause offers no protection. Employment Div. v.

Smith, 494 U.S. 872, 879 (1990).25 Smith held that the Free

Exercise Clause did not require a state to exempt the

ingestion of peyote during a Native American Church

ceremony from its neutral, generally applicable prohibition

on using that drug. Id. at 882. On the other hand, if the

law is not neutral (i.e., if it discriminates against religiously

motivated conduct) or is not generally applicable (i.e., if it

proscribes particular conduct only or primarily when

religiously motivated), strict scrutiny applies and the

burden on religious conduct violates the Free Exercise

Clause unless it is narrowly tailored to advance a

compelling government interest.26Church of the Lukumi

_________________________________________________________________

24. To survive strict scrutiny, a challenged government action must be

narrowly tailored to advance a compelling government interest, whereas

rational basis review requires merely that the action be rationally related

to a legitimate government objective. As explained below, an intermediate

level of scrutiny may apply in the public employment context.

25. Smith involved a criminal law, but its rule also applies in the context

of non-criminal laws and regulations. See Church of the Lukumi Babalu

Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993); Fraternal Order of

Police v. City of Newark, 170 F.3d 359, 363-64 (3d Cir. 1999).

26. Strict scrutiny may also apply when a neutral, generally applicable

law incidentally burdens rights protected by "the Free Exercise Clause in

conjunction with other constitutional protections, such as freedom of

speech and of the press, or the rights of parents . . . to direct the

education of their children," Smith, 494 U.S. at 881 (citations omitted),

but the plaintiffs do not assert such a "hybrid rights" claim.

26

Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 532, 542

(1993).

Further, the Free Exercise Clause’s mandate of neutrality

toward religion prohibits government from "deciding that

secular motivations are more important than religious

motivations." Fraternal Order of Police v. City of Newark,

170 F.3d 359, 365 (3d Cir. 1999). Accordingly, in situations

where government officials exercise discretion in applying a

facially neutral law, so that whether they enforce the law

depends on their evaluation of the reasons underlying a

violator’s conduct, they contravene the neutrality

requirement if they exempt some secularly motivated

conduct but not comparable religiously motivated conduct.

See Lukumi, 508 U.S. at 537; Smith, 494 U.S. at 884;

Bowen v. Roy, 476 U.S. 693, 708 (1986) (plurality opinion);

Fraternal Order of Police, 170 F.3d at 364-65. Thus in

Lukumi the Supreme Court invalidated an ordinance

"punishing ‘[w]hoever . . . unnecessarily . . . kills any

animal,’ " where state and local officials interpreted the

ordinance to ban animal sacrifices during Santeria religious

ceremonies, but to exempt secular activities such as

hunting, slaughtering animals for food, and even using live

rabbits to train greyhounds. 508 U.S. at 537 (alteration in

original). The officials’ selective application of the ordinance

"devalue[d] religious reasons for killing by judging them to

be of lesser import than nonreligious reasons," causing

religiously motivated conduct to be "singled out for

discriminatory treatment." Id. at 537-38. Therefore, strict

scrutiny applied, and the ordinance failed that test because

its "proffered objectives [were] not pursued with respect to

analogous non-religious conduct." Id. at 546.

Because the ordinance in Lukumi gave officials discretion

to consider "the particular justification" for each violation,

it "represent[ed] a system of ‘individualized governmental

assessment of the reasons for the relevant conduct,’ "

triggering under Smith strict scrutiny of the ordinance’s

application to religiously motivated conduct. Id. at 537

(quoting Smith, 494 U.S. at 884). In Fraternal Order of

Police, we held that the neutrality principle applies with

equal force when government creates categorical, as

opposed to individualized, exceptions for secularly

27

motivated conduct. 170 F.3d at 365. A city’s police

department applied its no-beard policy, which was designed

to promote uniform appearance, to allow medical

exemptions but deny similar exemptions to two Sunni

Muslim officers whose faith required them to grow beards.

Id. at 360-61, 366. Selective enforcement of this nature, we

said, exemplified the Supreme Court’s concern in Smith and

Lukumi about "the prospect of the government’s deciding

that secular motivations are more important than religious

motivations." Id. at 365. It showed that the police

department "made a value judgment that secular (i.e.,

medical) motivations for wearing a beard are important

enough to overcome its general interest in uniformity but

that religious motivations are not." Id. at 366. Therefore,

the enforcement of the policy against the Sunni Muslim

officers was "sufficiently suggestive of discriminatory intent

. . . to trigger heightened scrutiny under Smith and Lukumi."27

_________________________________________________________________

27. Smith and Lukumi state unambiguously that strict scrutiny applies

when government discriminates against religiously motivated conduct.

See Smith, 494 U.S. at 884; Lukumi, 508 U.S. at 546. However, our

decision in Fraternal Order of Police applied only "heightened" or

"intermediate" scrutiny, under which the challenged government action

must be substantially related (rather than narrowly tailored) to

promoting an important (rather than compelling) government interest.

We did so because First Amendment rights are limited in the public

employment context by a government’s need to function efficiently. See,

e.g., United States v. Nat’l Employees Treasury Union, 513 U.S. 454, 465

(1995); Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968). In any event,

we determined that the police department’s discriminatory value

judgment failed even intermediate scrutiny. Fraternal Order of Police, 170

F.3d at 365-66 & n.7.

We note that, in contrast to our decision in Fraternal Order of Police,

two other circuit courts have stated that the Free Exercise Clause offers

no protection when a statute or policy contains broad, objectively defined

exceptions not entailing subjective, individualized consideration. See

Swanson v. Guthrie v. Indep. Sch. Dist. No. I-L, 135 F.3d 694, 701 (10th

Cir. 1998) (stating that school district’s excepting fifth-year seniors and

special education students from "no-part-time-attendance" policy did not

require strict scrutiny of refusal to allow Christian home-schooled

student to attend part-time); Am. Friends Serv. Comm. v. Thornburgh,

951 F.2d 957, 961 (9th Cir. 1991) (determining that exceptions in

statute regulating immigrant hiring for independent contractors,

household employees, and employees hired before November 1986 did

not trigger strict scrutiny of denial of religiously motivated exemption

request because the statutory exceptions "exclude entire, objectively-

defined categories of employees from the scope of the statute").

28

Id. at 365. The Sunni Muslim officers’ beards posed no

greater threat to uniform appearance than did the beards

worn by officers with medical conditions. Id. at 366. Thus

the police department’s policy was void under "any degree

of heightened scrutiny." Id. at 367.

Smith, Lukumi, and Fraternal Order of Police point the

way to the appropriate level of scrutiny in this case. On its

face, Ordinance 691 is neutral and generally applicable.

But "[o]fficial action that targets religious conduct for

distinctive treatment cannot be shielded [from

constitutional attack] by mere compliance with the

requirement of facial neutrality." Lukumi, 508 U.S. at 534.

We must look beyond the text of the ordinance and

examine whether the Borough enforces it on a religion-

neutral basis, as "the effect of a law in its real operation is

strong evidence of its object." Id. at 535.

Because Ordinance 691 is neutral and generally

applicable on its face, if the Borough had enforced it

uniformly, Smith would control and the plaintiffs’ claim

would accordingly fail. The Borough insists it has done so,

but the record shows otherwise. Indeed, the Borough has

tacitly or expressly granted exemptions from the

ordinance’s unyielding language for various secular and

religious--though never Orthodox Jewish--purposes. Cf.

Fowler v. Rhode Island, 345 U.S. 67, 69 (1953) (holding

that city violated Free Exercise Clause by enforcing

ordinance banning meetings in park against Jehovah’s

Witnesses but exempting other religious groups).

From the drab house numbers and lost animal signs to

the more obtrusive holiday displays, church directional

signs, and orange ribbons--the last of which the District

Court erroneously deemed irrelevant to the constitutional

analysis28--the Borough has allowed private citizens to affix

_________________________________________________________________

28. Pursuant to our "constitutional duty to conduct an independent

examination of the record as a whole," Hurley , 515 U.S. at 567, we

believe there is ample evidence in the record showing that orange

ribbons were attached to the Borough’s utility poles for "a lengthy period

of time" and that Borough officials knew about them but made no effort

to remove them. A594-95 (Mayor Moscovitz Test.); see also A277

(statement of Tenafly resident Lee Rosenbaum that"[s]urely, a town that

brandished orange ribbons tied to almost every pole in town for what I

think was several years can tolerate some unobtrusive markers").

29

various materials to its utility poles. Apart from their

religious nature, the lechis are comparable to the postings

the Borough has left in place. If anything, the lechis are

less of a problem because they are so unobtrusive; even

observant Jews are often unable to distinguish them from

ordinary utility wires. While the Borough alleges that the

lechis are different because the plaintiffs intend them to be

"permanent," house numbers nailed to utility poles are

likewise intended to be permanent. And although the

Borough insists that the lechis’ religious nature justifies its

decision to remove them, this is precisely the sort of

reasoning that Lukumi and Fraternal Order of Police forbid.

We believe that the Borough’s selective, discretionary

application of Ordinance 691 against the lechis violates the

neutrality principle of Lukumi and Fraternal Order of Police

because it "devalues" Orthodox Jewish reasons for posting

items on utility poles by "judging them to be of lesser

import than nonreligious reasons," and thus "single[s] out"

the plaintiffs’ religiously motivated conduct for

discriminatory treatment. Lukumi, 508 U.S. at 537;

Fraternal Order of Police, 170 F.3d at 364-65. 29 Just as the

exemptions for secularly motivated killings in Lukumi

indicated that the city was discriminating against Santeria

animal sacrifice, and just as the medical exemption in

Fraternal Order of Police indicated that the police

department was discriminating against religiously

motivated requests to grow beards, the Borough’s

invocation of the often-dormant Ordinance 691 against

conduct motivated by Orthodox Jewish beliefs is

"sufficiently suggestive of discriminatory intent," Fraternal

Order of Police, 170 F.3d at 365, that we must apply strict

scrutiny. See Lukumi, 508 U.S. at 546.30

_________________________________________________________________

29. We note, however, that we reject the plaintiffs’ contention that the

Free Exercise Clause bars the Borough from distinguishing between the

lechis and the plastic-covered wires attached to utility poles by telephone

and cable television companies. Because utility poles exist to facilitate

telecommunications, utility wires are obviously unlike any of the other

materials the Borough has allowed people to affix to the poles.

30. Whereas First Amendment rights are necessarily limited in the public

employment context, see Nat’l Employees Treasury Union, 513 U.S. at

30

The Borough nonetheless contends that three aspects of

this case--the plaintiffs’ use of government property, the

lack of a "substantial burden" on the plaintiffs’ religious

freedom, and the "optional" nature of the eruv--place it

outside the framework of Lukumi and Fraternal Order of

Police, and thus preclude us from applying strict scrutiny

even though the Borough has discriminated against

conduct motivated by Orthodox Jewish beliefs.

First, the Borough insists that, because the utility poles

are on its land, this case is governed by Lyng v. Northwest

Indian Cemetery Protective Ass’n, 485 U.S. 439 (1988),

which held that the Free Exercise Clause did not prevent

the federal government from implementing a decision,

based on religion-neutral criteria, to construct a road and

allow timber harvesting on 17,000 acres of national forest

land traditionally used by Native Americans for religious

practices. Id. at 447-53; see also Bowen v. Roy, 476 U.S.

693, 699-701, 708 (1986) (holding that Free Exercise

Clause did not require government to grant religious

exemption from generally applicable, religion-neutral

statutory requirement that welfare recipients furnish their

Social Security numbers where no individualized

exemptions were allowed). According to the Borough, the

controlling principle is that "‘the Free Exercise Clause is

_________________________________________________________________

465, our case, unlike Fraternal Order of Police , involves purely private

conduct. Thus Smith and Lukumi obligate us to apply strict scrutiny. See

supra note 27.

We note that, in determining the appropriate standard to apply, we do

not believe it necessary to consider the subjective motivations of the

Council members who voted to remove the eruv. Lukumi and Fraternal

Order of Police inferred discriminatory purpose from the objective effects

of the selective exemptions at issue without examining the responsible

officials’ motives. See Lukumi, 508 U.S. at 537-38; Fraternal Order of

Police, 170 F.3d at 364-66; see also Laurence H. Tribe, American

Constitutional Law S 5-16, at 956 (3d ed. 2000) ("Under Smith, a law that

is not neutral or that is not generally applicable can violate the Free

Exercise Clause without regard to the motives of those who enacted the

measure."). Likewise, the objective effects of the Borough’s enforcement

of Ordinance 691 are sufficient for us to conclude that it is not being

applied neutrally against the eruv.

31

written in terms of what the government cannot do to the

individual, not in terms of what the individual can exact

from the government."’ Northwest Indian Cemetery, 485

U.S. at 451 (1988) (quoting Sherbert, 374 U.S. at 412

(Douglas, J., concurring)); Roy, 476 U.S. at 700.

Contrary to the Borough’s position, however, the

principle of Lukumi and Fraternal Order of Police--that

government cannot discriminate between religiously

motivated conduct and comparable secularly motivated

conduct in a manner that devalues religious reasons for

acting--applies not only when a coercive law or regulation

prohibits religious conduct, but also when government

denies religious adherents access to publicly available

money or property. See Sherbert v. Verner, 374 U.S. 398,

404-05 (1963) (holding that Free Exercise Clause prohibits

state from devaluing religious reasons for seeking

unemployment benefits); Davey v. Locke, 299 F.3d 748,

753-54 (9th Cir. 2002) (holding that Free Exercise Clause

bars state from making college scholarships contingent on

recipients not majoring in theology); cf. Rosenberger v.

Rector & Visitors of Univ. of Va., 515 U.S. at 831-35

(holding that Free Speech Clause precludes state university

that pays student publications’ printing costs from denying

funding based on publication’s religious viewpoint).

In contrast, the principle of Northwest Indian Cemetery

applies only when a person of faith asks for special, not

equal, treatment in the context of a religion-neutral policy.

See Adams v. Comm’r of Internal Revenue, 170 F.3d 173,

181 & n.10 (3d Cir. 1999) (rejecting argument that

"uniform and facially neutral" penalty for"a conscious,

intentional failure" to file taxes could not be applied to

religious objector); Swanson v. Guthrie Indep. Sch. Dist. No.

I-L, 135 F.3d 694, 701-02 (10th Cir. 1998) (rejecting claim

that school district must grant religiously motivated request

for individualized exemption from no-part-time-attendance

policy where no individualized exemptions were granted). It

does not apply when government discriminates against

religiously motivated conduct in allocating "the rights,

benefits, and privileges enjoyed by other citizens."

Northwest Indian Cemetery, 485 U.S. at 449.

32

In this case, the plaintiffs are not asking for preferential

treatment. Instead, they ask only that the Borough not

invoke an ordinance from which others are effectively

exempt to deny plaintiffs access to its utility poles simply

because they want to use the poles for a religious purpose.

Cf. Widmar v. Vincent, 454 U.S. 263, 273 n.13 (1981) ("This

case is different from the cases in which religious groups

claim that the denial of facilities not available to other

groups deprives them of their rights under the Free

Exercise Clause.") (emphasis in original); Davey, 299 F.3d

at 757-58 ("This is not a case where a person claims that

denial of a financial benefit which is not available to others

deprives him of his free exercise rights."). Therefore, Lukumi

and Fraternal Order of Police, not Northwest Indian

Cemetary, control our disposition.

Second, the Borough maintains that strict scrutiny

should not apply because the plaintiffs have not shown that

the removal of the eruv would substantially burden their

religious practice. Under Smith and Lukumi, however, there

is no substantial burden requirement when government

discriminates against religious conduct. See Lukumi, 508

U.S. at 531-47 (finding Free Exercise Clause violation

without considering whether a substantial burden on

religious freedom existed); Fraternal Order of Police, 170

F.3d at 364-67 (same); Brown v. Borough of Mahaffey, 35

F.3d 846, 849-50 (3d Cir. 1994) ("Applying such a burden

test to non-neutral government actions would make petty

harassment of religious institutions and exercise immune

from the protection of the First Amendment."). Instead, the

plaintiffs need to show only "a sufficient interest in the case

to meet the normal requirement of constitutional standing,"

Hartmann v. Stone, 68 F.3d 973, 979 n.4 (6th Cir. 1995)

(rejecting substantial burden requirement), and their

inability to attend synagogue on the Sabbath without the

eruv easily suffices.

Moreover, Smith admonished courts not to engage in the

sort of inquiry the Borough demands. The Supreme Court

explained that "[j]udging the centrality of different religious

practices" violates the principle that "courts must not

presume to determine the place of a particular belief in a

religion." Smith, 494 U.S. at 887; see also DeHart v. Horn,

33

227 F.3d 47, 56 (3d Cir. 2000) (en banc) (same). Evaluating

the extent of a burden on religious practice is equally

impermissible, the Smith Court said, because it entails a

forbidden inquiry into religious doctrine. "‘Constitutionally

significant burden’ would seem to be ‘centrality’ under

another name," and "inquiry into ‘severe impact’ is no

different from inquiry into centrality."31 Smith, 494 U.S. at

887 n.4; see also Northwest Indian Cemetery, 485 U.S. at

_________________________________________________________________

31. Notwithstanding the Supreme Court’s admonition in Smith against

judicial inquiries into the centrality of religious practices, a number of

circuit courts persist in imposing a substantial burden requirement in

various contexts. See, e.g., Levitan v. Ashcroft, 281 F.3d 1313, 1320

(D.C. Cir. 2002) (stating in prison context that free exercise plaintiff

must demonstrate that the challenged law burdens"a central tenet or

important practice of [his] religion"); Am. Family Ass’n, Inc. v. City and

County of San Francisco, 277 F.3d 1114, 1124 (9th Cir. 2002) (noting

that Ninth Circuit continues to demand that a plaintiff show substantial

burden in challenges to government actions that are not "regulatory,

proscriptive or compulsory," though the more recent decision in Davey v.

Locke, discussed above, did not impose this requirement); Altman v.

Minn. Dep’t of Corrections, 251 F.3d 1199, 1204 (8th Cir. 2001)

("Government significantly burdens the exercise of religion if it

significantly constrains conduct or expression that manifests a central

tenet of a person’s religious beliefs, meaningfully curtails the ability to

express adherence to a particular faith, or denies reasonable

opportunities to engage in fundamental religious activities."); Altman v.

Bedford Cent. Sch. Dist., 245 F.3d 49, 79 (2d Cir. 2001) (stating, contrary

to Smith and Lukumi and without citing either opinion, that substantial

burden test applies when neutral law incidentally impinges on religious

exercise); Strout v. Albanese, 178 F.3d 57, 65 (1st Cir. 1999) (quoting a

pre-Smith case for the proposition that"the free exercise inquiry [is]

whether government has placed a substantial burden on the observation

of a central belief or practice") (internal quotation marks omitted)

(emphasis in original); United States v. Grant , 117 F.3d 788, 793 (5th

Cir. 1997) (rejecting free exercise claim, without citing Smith or Lukumi,

on ground that plaintiff’s religious freedom was not substantially

burdened); Goodall by Goodall v. Stafford County Sch. Bd., 60 F.3d 168,

173 (4th Cir. 1995) (stating that substantial burden requirement applies

when challenged law is not generally applicable); Fleischfresser v. Dirs. of

Sch. Dist. 200, 15 F.3d 680, 689-90 (7th Cir. 1994) (requiring

substantial burden as prerequisite for free exercise claim without citing

Smith); Church of Scientology v. City of Clearwater, 2 F.3d 1514, 1549

(11th Cir. 1993) (stating that strict scrutiny applies when a law that

targets religion imposes a substantial burden on believers).

34

451 ("Whatever may be the exact line between

unconstitutional prohibitions on the free exercise of religion

and the legitimate conduct by government of its own affairs,

the location of the line cannot depend on measuring the

effects of a governmental action on a religious objector’s

spiritual development."); cf. Widmar, 454 U.S. at 269 n.6

(rejecting distinction between "religious worship" and other

religious speech because it would require courts"to inquire

into the significance of words and practices to different

religious faiths" and "[s]uch inquiries would tend inevitably

to entangle the State with religion in a manner forbidden by

our cases").

Third, the Borough asserts that the plaintiffs cannot

state a free exercise claim because the eruv is an "optional"

religious practice. For reasons similar to those counseling

against requiring the plaintiffs to demonstrate a substantial

burden on their religious practice, we cannot accept the

Borough’s contention that courts presented with free

exercise claims should, as a threshold matter, determine

whether the religious practices at issue are "mandatory" or

"optional." We need not consider whether the Borough’s

characterization of the eruv is accurate. Neither the

Supreme Court nor our Court has intimated that only

compulsory religious practices fall within the ambit of the

Free Exercise Clause. To the contrary, our en banc decision

in DeHart said that conduct implicates the Free Exercise

Clause if it is motivated by "beliefs which are both sincerely

held and religious in nature" without regard to whether it

is mandatory. 227 F.3d at 51; cf. id. at 54-55 (rejecting

contention that, in the context of prisoners’ free exercise

claims, conduct based on "religious commandments"

should receive more protection than conduct that is"a

positive expression of belief"); see also Levitan v. Ashcroft,

281 F.3d 1313, 1319 (D.C. Cir. 2002) (holding that,

because "[a] requirement that a religious practice be

mandatory to warrant First Amendment protection finds no

warrant in the cases of the Supreme Court or of this court,"

Catholic prisoners could raise free exercise challenge to rule

barring them from consuming small amounts of wine

during Communion).32 Further, if the Borough’s position

_________________________________________________________________

32. But see Ward v. Walsh, 1 F.3d 873, 878 (9th Cir. 1993) (suggesting,

without citing supporting legal authority, that there is a "distinction

35

were correct, the Lukumi Court would have considered

whether Santeria adherents believe their faith commands

them to sacrifice animals. But the Court did not do so,

instead deeming it sufficient that they had a sincere desire

to sacrifice animals for religious reasons. See Lukumi, 508

U.S. at 531.

Additionally, if anything turned on whether a religious

practice is "mandatory" or "optional," courts would have to

question "the validity of particular litigants’ interpretations

of [their] creeds" and perhaps even adjudicate

"controversies over religious authority or dogma," tasks that

are "not within the judicial ken." Smith , 494 U.S. at 877,

887 (internal quotation marks omitted); cf. Presbyterian

Church in U.S. v. Mary Elizabeth Hull Mem’l Presbyterian

Church, 393 U.S. 440, 449-50 (1969) (holding that the Free

Exercise Clause prohibits courts from deciding church

property disputes by resolving underlying conflicts over "the

interpretation of particular church doctrines and the

importance of those doctrines to the religion"); see also

United States v. Ballard, 322 U.S. 78, 84-88 (1944) (holding

that courts can inquire into the sincerity, but not the truth

or falsity, of religious beliefs).

Finally, if the First Amendment shielded only compulsory

religious practices, religions without commandments

"would find themselves outside the scope of First

Amendment protection altogether," Levitan, 281 F.3d at

1320, a result antithetical to basic Free Exercise Clause

norms. See, e.g., Fowler, 345 U.S. at 70 ("[I]t is no business

of courts to say that what is a religious practice or activity

for one group is not religion under the protection of the

First Amendment.").

As the Borough’s arguments for eschewing strict scrutiny

are unpersuasive, we must consider whether its invocation

of Ordinance 691 against the lechis is likely to pass that

test.

_________________________________________________________________

between a religious practice which is a positive expression of belief and

a religious commandment which the believer may not violate at peril of

his soul" in the context of prisoners’ free exercise claims).

36

2. Application of strict scrutiny

Because the Borough’s decision to remove the eruv is not

neutral toward conduct motivated by Orthodox Jewish

beliefs, it "must undergo the most rigorous of scrutiny."

Lukumi, 508 U.S. at 546. To be permissible under the Free

Exercise Clause, it "must advance interests of the highest

order and must be narrowly tailored in pursuit of those

interests." Id. (internal quotation marks omitted). The

Borough attempts to justify its decision to remove the eruv,

and distinguish the lechis from the violations of Ordinance

691 it has tolerated, on the grounds that the lechis are

"permanent" and religious in nature. Neither ground is

persuasive.

Much of our strict scrutiny analysis parallels our earlier

discussion of why the Borough’s decision is not religion-

neutral. See Lukumi, 508 U.S. at 546-47 (stating that lack

of neutrality eviscerates contention that restriction is

narrowly tailored to advance compelling interest). First, for

many years--and, the record shows, after the plaintiffs

sued--the Borough has allowed its residents to nail house

numbers to utility poles. Because the Borough has

tolerated equally permanent house numbers, it hardly has

a compelling interest in refusing to allow the inconspicuous

lechis on the ground that they are permanent. Further, it is

hard to see how the allegedly permanent nature of the

unobtrusive lechis somehow undermines Ordinance 691’s

objective of avoiding visual clutter and maintaining control

over municipal property more than items like bright orange

ribbons and lost animal signs. Moreover, even if the

Borough had a compelling interest in preventing permanent

fixtures on its utility poles, its decision to remove the eruv

while allowing the house numbers is not narrowly tailored

to promote that interest.

Though the Borough’s claim that it can remove the eruv

because of its religious nature requires more discussion, it

is similarly unpersuasive. The Borough maintains that its

decision to remove the eruv is justified by its "compelling"

interest in avoiding "an Establishment Clause controversy."

Contrary to the Borough’s position, however, a government

interest in imposing greater separation of church and state

than the federal Establishment Clause mandates is not

37

compelling in the First Amendment context. See Widmar,

454 U.S. at 276 (rejecting state university’s contention that

its interest in complying with the state constitution’s

prohibition on religious establishments, which was more

restrictive than its federal counterpart, justified

discriminating against religious speech, and explaining that

"the state interest asserted here--in achieving greater

separation of church and State than is already ensured

under the Establishment Clause of the Federal Constitution

--is limited by the Free Exercise Clause and in this case by

the Free Speech Clause as well")33 Davey, 299 F.3d at 759

(same in context of free exercise claim).

_________________________________________________________________

33. In 1990, a divided panel of our Court suggested in dictum--in a case

that did not involve a Free Exercise Clause claim, and without citing

Widmar--that public schools have "a compelling interest in maintaining

the appearance of religious neutrality" in their classrooms, and that this

interest, even if not required by the Establishment Clause, might

outweigh public employees’ free exercise right to wear religious garb.

United States v. Board of Education, 911 F.2d 882, 889 (3d Cir. 1990)

(holding that Title VII does not require public schools to allow teachers

to wear religious garb, as this would impose an"undue hardship" on the

schools under 42 U.S.C. S 2000e(j)). The opinions cited in support of this

proposition were Cooper v. Eugene School District, 723 P.2d 298 (Or.

1986)--which also did not cite Widmar--and the Supreme Court’s one-

sentence order dismissing an appeal from the Oregon Supreme Court’s

ruling "for want of a substantial federal question." 480 U.S. 942 (1987).

To the extent that the Oregon Supreme Court held in Cooper that

concerns about appearing neutral toward religion could outweigh

employees’ free exercise rights in the public school context, we do not

believe the United States Supreme Court’s summary disposition

approved that reasoning. Instead, we believe, especially in light of

subsequent doctrinal developments, that the dictum in United States v.

Board of Education may be inconsistent with Widmar’s principle that an

interest in more separation between church and state than the

Establishment Clause requires cannot justify restricting rights shielded

by the Free Exercise Clause. See Widmar, 454 U.S. at 276.

First, summary dispositions by the Supreme Court"cannot be taken

as adopting the reasoning of the lower court," Wis. Dep’t of Revenue v.

Wrigley Co., 505 U.S. 214, 224 n.2 (1992); Zobel v. Williams, 457 U.S.

55, 64 n.13 (1982) (same), and they can be used as precedent "only if

the [lower court’s] decision[ ] rested solely on established constitutional

principles and did not break any new ground." Robert L. Stern et al.,

Supreme Court Practice S 4.29, at 284 (8th ed. 2002). Hence the Supreme

38

The Borough further argues, however, that leaving the

eruv in place would constitute an actual Establishment

Clause violation, and that the need to avoid such a

violation justifies discriminating against the plaintiffs’

religiously motivated conduct. Before explaining why this

argument is also unavailing, we must examine the Supreme

Court’s recent pronouncements in the area.34 Until the past

_________________________________________________________________

Court’s summary disposition in Cooper cannot be interpreted as

endorsing the Oregon Supreme Court’s reasoning, particularly since that

reasoning flatly contradicts Widmar. See Fusari v. Steinberg, 419 U.S.

379, 388-89 n.15 (1975) (stating that, even though a lower court’s

interpretation of a summary affirmance by the Supreme Court was

"plausible," it was improper because it would"leave little vitality" to an

earlier Supreme Court decision); see also id. at 391-92 (Burger, C.J.,

concurring) ("An unexplicated summary affirmance settles the issues for

the parties, and is not to be read as a renunciation by this Court of

doctrines previously announced in our opinions after full argument.").

Since Cooper, moreover, the Supreme Court has held in several cases

that a government interest in appearing neutral toward religion, where

not necessary to comply with the Establishment Clause, cannot justify

limiting First Amendment rights. See Good News Club v. Milford Cent.

Sch., 533 U.S. 98, 112-19 (2001); Rosenberger, 515 U.S. at 839-46;

Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 761-63

(1995); Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S.

384, 395 (1993). Because subsequent doctrinal developments remove

whatever precedential authority a summary disposition inconsistent with

them might have, see Hicks v. Miranda, 422 U.S. 332, 344-45 (1975);

Lecates v. Justice of Peace Ct. No. 4, 637 F.2d 898, 902 (3d Cir. 1980),

we believe that in all likelihood the Supreme Court summarily dismissed

the appeal in Cooper under the principle of Pickering v. Board of

Education, 391 U.S. 563 (1968), which held that government can impose

restrictions on the First Amendment rights "of public employees that

would be plainly unconstitutional if applied to the public at large." United

States v. Nat’l Employees Treasury Union, 513 U.S. 454, 465 (1995).

Thus the Supreme Court had no need in Cooper to consider whether an

interest in appearing neutral toward religion can trump free exercise

rights outside the context of public employment.

34. Two courts have held that the Establishment Clause allows a

municipality affirmatively to grant Orthodox Jews access to public

property so they can create an eruv. See ACLU of N.J. v. City of Long

Branch, 670 F. Supp. 1293, 1295-97 (D.N.J. 1987); Smith v. Community

Bd. No. 14, 491 N.Y.S.2d 584, 586-87 (N.Y. Sup. Ct. 1985), aff’d, 518

N.Y.S.2d 356, 357 (N.Y. App. Div. 1987). Those cases are not on point

here because the Borough has not approved the eruv.

39

decade, the Supreme Court generally applied the three-

prong test of Lemon v. Kurtzman, 403 U.S. 602 (1971),

under which government action is consistent with the

Establishment Clause if it (1) "has a secular purpose"; (2)

"does not have the principal or primary effect of advancing

or inhibiting religion"; and (3) "does not foster an excessive

entanglement with religion." Lamb’s Chapel v. Ctr. Moriches

Union Free Sch. Dist., 508 U.S. 384, 395 (1993). 35

Recent Supreme Court decisions, however, have not

applied the Lemon test. Instead, in cases involving

Establishment Clause challenges to private individuals’ use

of government resources, the Court has applied the

endorsement test developed by Justice O’Connor, which

dispenses with the "entanglement" prong of the Lemon test

and collapses its "purpose" and "effect" prongs into a single

inquiry: would a reasonable, informed observer, i.e., one

familiar with the history and context of private individuals’

access to the public money or property at issue, perceive

the challenged government action as endorsing religion?36

See Zelman v. Simmons-Harris, ___ U.S. ___ , ___, 122 S. Ct.

2460, 2468-69 (2002) (upholding school voucher program

where 96% of participating students attended religiously

affiliated schools because parents’ genuine and

_________________________________________________________________

35. Compare, e.g., Widmar, 454 U.S. at 271-75 (applying Lemon test to

hold that Establishment Clause does not bar state university from

allowing religious groups to use generally available facilities); Lynch v.

Donnelly, 465 U.S. 668, 679-86 (1984) (applying Lemon test to uphold

city-sponsored Christmas display that included creche alongside various

secular symbols), with Lee v. Weisman, 505 U.S. 577, 586-87 (1992)

(invalidating prayer at public school graduation led by clergyman chosen

by school officials without relying on Lemon test); Marsh v. Chambers,

463 U.S. 783, 792-95 (1983) (upholding practice of opening state

legislative sessions with prayers by state-employed chaplain without

mentioning Lemon test); see generally Lamb’s Chapel, 508 U.S. at 398-

99 (Scalia, J., concurring in the judgment) (chronicling Court’s erratic

invocation of Lemon test).

36. "Entanglement" still matters, however, in the context of direct aid to

public schools, where the Court subsumes it within the "effect" analysis,

see Agostini v. Felton, 521 U.S. 203, 232-33 (1997), and in the rare case

where government delegates civic power to a religious group. See Bd. of

Educ. of Kiryas Joel Village Sch. Dist. v. Grumet , 512 U.S. 687, 696-705

(1994); Larkin v. Grendel’s Den, Inc., 459 U.S. 116, 126-27 (1982).

40

independent choices determined where children went to

school); Good News Club v. Milford Cent. Sch. , 533 U.S. 98,

117-19 (2001) (holding that Establishment Clause did not

require public school to bar evangelical Christian student

group from using facilities accessed by various other

groups);37 Capitol Square Review & Advisory Bd. v. Pinette,

515 U.S. 753, 763 (1995) (relying on the endorsement

analysis in Lamb’s Chapel to hold that Establishment

Clause did not require state to prevent private group from

erecting cross on statehouse grounds, a traditional public

forum)38; Lamb’s Chapel, 508 U.S. at 395 (reciting the

Lemon test but relying primarily on the endorsement test to

hold that the Establishment Clause did not prohibit school

district from letting evangelical church group use publicly

available school facilities to show film series on Christian

family values); see also ACLU of N.J. v. Schundler, 168 F.3d

92, 103, 105-07 (3d Cir. 1999) (noting that Justice

O’Connor’s endorsement test is the governing standard and

applying it to uphold government-sponsored holiday display

_________________________________________________________________

37. When presented with Establishment Clause claims in the context of

public education, the Supreme Court considers not only whether a

reasonable, informed observer would perceive an endorsement of

religion, but also whether the challenged government practice coerces

students into participating in religious activity. See Good News Club, 533

U.S. at 115-16; Lee, 505 U.S. at 592-93. The Court has not applied its

coercion test outside the public education context.

38. Seven Justices in Capitol Square agreed that the reasoning of Lamb’s

Chapel controlled, Capitol Square, 515 U.S. at 762, three of these seven

expressly applied the reasonable, informed observer test, see id. at 772

(O’Connor, J., joined by Souter & Breyer, JJ.), and the two dissenting

Justices also applied the endorsement test, see id. at 797-98 (Stevens,

J., dissenting); id. at 817-18 (Ginsburg, J., dissenting). Four Justices,

however, recognized that the endorsement test controls when

government discriminates in favor of religion, but argued that there is no

need to apply the test to "purely private" religious expression that occurs

in a public forum "open to all on equal terms" because such expression

can never violate the Establishment Clause. Id. at 770 (opinion of Scalia,

J.). Notwithstanding the Justices’ divergent approaches, subsequent

Supreme Court decisions treat the reasonable, informed observer test

discussed at length in Justice O’Connor’s opinion as representing Capitol

Square’s holding with respect to the appropriate Establishment Clause

test. See Good News Club, 533 U.S. at 119; Santa Fe Indep. Sch. Dist. v.

Doe, 530 U.S. 290, 308 (2000).

41

against Establishment Clause attack). Each of these

decisions upheld the challenged government action because

it treated religion neutrally, and thus would not be viewed

by a reasonable, informed observer as endorsing religion.39

In contrast, government runs afoul of the endorsement

test and violates the Establishment Clause when it

affirmatively supports religion on preferential terms. See

Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 305-10

(2000) (invalidating school policy of encouraging and

sponsoring student-initiated, student-led prayers before

high school football games because reasonable, informed

observer would perceive school as endorsing religion);

County of Allegheny v. ACLU, Greater Pittsburgh Chapter,

492 U.S. 573, 598-601 (1989) (holding that county violated

Establishment Clause by giving Roman Catholic group

preferential access to display stand-alone creche depicting

birth of Jesus on main staircase of its seat of government

because reasonable observer would believe county’s action

was meant to support and promote Christianity); see also

ACLU of N.J. v. Black Horse Pike Regional Bd. of Educ., 84

F.3d 1471, 1484-88 (3d Cir. 1996) (en banc) (invalidating

scheme that allowed public high school students to choose

graduation prayer, but not any secular speech, by plurality

vote).40 In addition, some Justices have held out the

possibility that, even if government grants equal rather

than preferential access to religion, a reasonable, informed

observer could perceive an endorsement of religion in

_________________________________________________________________

39. While the Supreme Court’s Establishment Clause jurisprudence

consistently emphasizes neutrality toward religion, it allows government

to "accommodate religious needs by alleviating special burdens" on

religious practice unless the "accommodation" delegates political power

to a particular religious group or otherwise "singles out a particular

religious sect for special treatment." Kiryas Joel Village Sch. Dist., 512

U.S. at 705-06.

40. The Allegheny Court also held, with no majority opinion on this

point, that local officials did not endorse religion by erecting a display

including a menorah, a Christmas tree, and a sign entitled "Salute to

Liberty" in front of another government building. See 492 U.S. at 613-21

(opinion of Blackmun, J.); id. at 632-36 (O’Connor, J., concurring in part

and concurring in the judgment); id. at 663-67 (Kennedy, J., concurring

in the judgment in part and dissenting in part).

42

extraordinary cases. See Capitol Square, 515 U.S. at 777-78

(O’Connor, J., concurring in part and concurring in the

judgment). For instance, if one or more religious groups

dominated property the government made available to the

public, a reasonable observer might perceive an

endorsement of religion. See id.; cf. Freedom from Religion

Found. v. City of Marshfield, 203 F.3d 487, 489, 494-96

(7th Cir. 2000) (holding that Establishment Clause was

violated where sole display in public forum was fifteen-foot-

tall white marble statue of Jesus bearing inscription "Christ

Guide Us On Our Way" in twelve-inch block letters and

facing oncoming traffic on adjacent highway).

Applying these principles to this case, we believe that, if

the Borough ceased discriminating against the plaintiffs’

religiously motivated conduct to comply with the Free

Exercise Clause, a reasonable, informed observer would not

perceive an endorsement of Orthodox Judaism because the

Borough’s change of heart would "reflect[] nothing more

than the governmental obligation of neutrality" toward

religion. Sherbert, 374 U.S. at 409. A reasonable observer

"must be deemed aware of the history and context of the

community," Good News Club, 533 U.S. at 119 (internal

quotation marks omitted); see also Zelman, 122 S. Ct. at

2468-69; Black Horse Pike, 84 F.3d at 1486, and

"presumed to possess a certain level of information that all

citizens might not share." Capitol Square, 515 U.S. at 780

(O’Connor, J., concurring in part and concurring in the

judgment); see also Good News Club, 533 U.S. at 118

(stating that reasonable observer would know about non-

neutral implementation of policy); ACLU of N.J. v.

Schundler, 168 F.3d at 106 (noting that reasonable

observer would be aware of city’s year-round practices

regarding cultural displays and celebrations). Thus the

reasonable, informed observer would know that the lechis

are items with religious significance and that they enable

Orthodox Jews to engage in activities otherwise off limits on

the Sabbath, but would also know that the Borough was

allowing them to remain on the utility poles only because

its selective application of Ordinance 691 renders removing

the lechis a free exercise violation. See Allegheny, 492 U.S.

at 632 (O’Connor, J., concurring in part and concurring in

the judgment) ("In cases involving the lifting of government

43

burdens on the free exercise of religion, a reasonable

observer would take into account the values underlying the

Free Exercise Clause in assessing whether the challenged

practice conveyed a message of endorsement."). Cognizant

of the Borough’s secular purpose of complying with the

Free Exercise Clause, see Mergens, 496 U.S. at 249, and

the religion-neutral effect of treating the lechis like other

postings, the reasonable observer would not believe that the

Borough was promoting Orthodox Judaism. See Gregoire v.

Centennial Sch. Dist., 907 F.2d 1366, 1380 (3d Cir. 1990)

(concluding that religion-neutral treatment of Christian

group seeking access to public school facilities sent

message of neutrality toward, not endorsement of, religion).

This is true a fortiori because there is no evidence in the

current record that the unobtrusive lechis are intended to

send a religious message to anyone.

Further, there is a vital difference between purely private

religiously motivated conduct and conduct initiated or

sponsored by government. See Rosenberger, 515 U.S. at

841. No reasonable, informed observer would perceive the

decision of the plaintiffs to affix lechis to utility poles owned

by Verizon and to do so with Cablevision’s assistance as " ‘a

choice attributable to the State.’ " Santa Fe Indep., 530 U.S.

at 311 (quoting Lee, 505 U.S. at 587). Similarly, because

the eruv is maintained solely with private funds, and

because allowing the lechis to remain in place would

represent neutral rather than preferential treatment of

religiously motivated conduct, no reasonable, informed

observer would believe the Borough is "affirmatively

sponsor[ing]" an Orthodox Jewish practice. Santa Fe Indep.,

530 U.S. at 313.

To the extent that access to the utility poles on Borough

land constitutes a "benefit," "the ‘guarantee of neutrality is

respected, not offended"’ when religious persons benefit

incidentally from "‘neutral criteria and evenhanded

policies."’ Good News Club, 533 U.S. at 114 (quoting

Rosenberger, 515 U.S. at 839). In this context, there is "no

realistic danger" that, if the Borough treated the plaintiffs’

religiously motivated conduct on religion-neutral terms,

reasonable, informed observers would perceive an

endorsement of Orthodox Judaism. Lamb’s Chapel , 508

44

U.S. at 395. Moreover, even if there is some slight risk that

a reasonable, informed observer might "misperceive the

endorsement of religion," there is a much greater risk that

the observer would perceive hostility toward Orthodox Jews

if the Borough removes the lechis. Good News Club, 533

U.S. at 118; Mergens, 496 U.S. at 248; see also

Rosenberger, 515 U.S. at 846 (O’Connor, J., concurring)

("Withholding access would leave an impermissible

perception that religious activities are disfavored.").41

Because the Free Exercise Clause requires neutral

treatment of religion, see Smith, 494 U.S. at 879, only in a

most unusual case could compliance with free exercise

norms offend the Establishment Clause. Cf. Kiryas Joel

Village Sch. Dist., 512 U.S. at 717 (O’Connor, J.,

concurring) ("The Religion Clauses prohibit the government

from favoring religion, but they provide no warrant for

discriminating against religion.") (emphasis in original).

This is not such a case. Therefore, the Borough has no

Establishment Clause justification for discriminating

against the plaintiffs’ religiously motivated conduct.

Accordingly, the plaintiffs are reasonably likely to prevail on

their free exercise claim.

3. Requirements for preliminary injunctive relief

Where a district court has denied a motion for a

preliminary injunction, we may order the injunction to

issue if "the four factors required to grant a preliminary

injunction are apparent on the record before us." Tanimura

& Antle, Inc. v. Packed Fresh Produce, Inc., 222 F.3d 132,

140 (3d Cir. 2000); see also Council of Alternative Political

Parties v. Hooks, 121 F.3d 876, 883-84 (3d Cir. 1997);

Polaroid Corp. v. Disney, 862 F.2d 987, 1006 (3d Cir. 1988).

_________________________________________________________________

41. To the extent that the Lemon test retains some trace of vitality, see

Black Horse Pike, 84 F.3d at 1484, even after Zelman, Good News Club,

and Santa Fe eschewed it in favor of the endorsement test, it does not

support the Borough’s Establishment Clause defense. Allowing the eruv

to remain in place serves the secular purpose of complying with the Free

Exercise Clause, does not have the effect of advancing religion because

no reasonable, informed observer would perceive an endorsement of

religion, and involves no government entanglement with religion because

the Borough will not monitor or support the maintenance of the eruv.

45

Our review of the record leaves us convinced that, in

addition to the reasonable probability that the plaintiffs will

ultimately prevail on their free exercise claim, the

remaining three factors for injunctive relief--irreparable

injury, the balance of hardships, and the public interest--

also favor a preliminary injunction. Limitations on the free

exercise of religion inflict irreparable injury. Fifth Ave.

Presbyterian Church v. City of New York, 293 F.3d 570, 574

(2d Cir. 2002); Kikumura v. Hurley, 242 F.3d 950, 963

(10th Cir. 2001); see also Swartzwelder v. McNeilly, 297

F.3d 228, 241 (3d Cir. 2002) ("‘The loss of First Amendment

freedoms, for even minimal periods of time, unquestionably

constitutes irreparable injury."’) (quoting Elrod v. Burns,

427 U.S. 347, 373 (1976)). The plaintiffs have demonstrated

that, if the eruv is removed, they will be unable to push and

carry objects outside the home on the Sabbath, and those

who are disabled or have small children consequently will

be unable to attend synagogue. This showing easily

satisfies the irreparable injury requirement.

With respect to the balance of hardships, a preliminary

injunction would not harm the Borough more than denying

relief would harm the plaintiffs. Enjoining removal of the

eruv would cause neither the Borough nor its residents any

serious injury. Without an injunction, on the other hand,

the plaintiffs’ free exercise of religion will be impaired. The

balance easily tips in the plaintiffs’ favor.

Finally, where there are no societal benefits justifying a

burden on religious freedom, "the public interest clearly

favors the protection of constitutional rights." Council of

Alternative Political Parties v. Hooks, 121 F.3d 876, 884 (3d

Cir. 1997). We do not see how removing the lechis could

advance any interests sufficient to outweigh the

infringement of the plaintiffs’ free exercise rights.

In this context, the District Court should have

preliminarily enjoined the Borough from removing the lechis

pending a trial.

IV. Conclusion

Though the plaintiffs are not likely to prevail on their Fair

Housing Act claim and do not present a viable free speech

46

claim, they are reasonably likely to show that the Borough

violated the Free Exercise Clause by applying Ordinance

691 selectively against conduct motivated by Orthodox

Jewish beliefs. Because the three other factors for

injunctive relief also favor the plaintiffs, we reverse the

District Court’s denial of injunctive relief and will enter an

order directing the Court to issue a preliminary injunction

barring the Borough from removing the lechis.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

47