Establishment Clause challenge to utility pole Eruvs fails

Telephone poles in Suffolk County featured an Eruv. What is an Eruv, you ask? It's an outside religious space for certain Jewish residents. Plaintiffs sued the Town of Westhampton Beach under the Establishment Clause, claiming that plastic strips placed on telephone poles designating the Eruvs constitute a state-sponsored religious message. The Court of Appeals disagrees.

The case is Jewish People for the Betterment of Westhampton Beach v. Village of Westhampton Beach, a summary order decided on January 6. The Second Circuit (Jacobs, Livingston and Raggi) tells us about the Eruv:

An eruv is a “demarcation of a defined geographic area within which adherents subscribing to a certain interpretation of Jewish law believe that they may perform certain activities that are otherwise prohibited on the Jewish Sabbath and Yom Kippur.”

Wikipedia defines an Eruv as "a ritual enclosure that some communities construct in their neighborhoods as a way to permit Jewish residents or visitors to carry certain objects outside their own homes on Sabbath and Yom Kippur. An eruv accomplishes this by integrating a number of private and public properties into one larger private domain, thereby countermanding restrictions on carrying objects from the private to the public domain on Sabbath and holidays. The eruv allows these religious Jews to, among other things, carry house keys, tissues, medicines, or babies with them, and use strollers and canes. The presence or absence of an eruv thus especially affects the lives of people with limited mobility and those responsible for taking care of babies and young children."

In Westhampton, Eruvs are "inconspicuous strips attached to utility poles." Does their placement violate the First Amendment's Establishment Clause? The Second Circuit says they do not. "The Westhampton eruv was delineated by 'nearly invisible' staves and wires attached to utility poles.  Plaintiffs do not allege that these staves contain any overtly religious features that would distinguish them to a casual observer as any different from strips of material that might be attached to utility poles for secular purposes." Nor have plaintiffs plausibly alleged that the government action -- allowing the power company to place items of religious significance on utility poles -- serves no secular purpose.

And, the Court says, "No reasonable observer who notices the strips on [Long Island Power Authority] utility poles would draw the conclusion that a state actor is thereby endorsing religion, even assuming that a reasonable observer was aware that a state actor (LIPA) was the entity that contracted with a private party to lease the space." Nor do the Eruv strips on utility poles entangle the government with religion. As other courts have reached the same conclusion, the Second Circuit sides with the government in this case.