Sep 15, 2011

The plaintiffs challenged the Borough’s decision to disallow the erection of an eruv on the Borough’s telephone poles. (An eruv is created by using strips of plastic or cloth to create a boundary for an area in which Orthodox Jewish people can more easily observe the Sabbath.) The request was denied pursuant to an ordinance that forbids the placement of any items on telephone poles. The plaintiffs argued that the Borough had allowed other items to be displayed on the poles, and that they were thus entitled under the Free Exercise Clause to a similar exemption. The Third Circuit ruled for the plaintiffs, issuing a decision that we neither agreed nor disagreed with. However, in the course of its decision, the court made a series of sweeping statements narrowing the reach of the Establishment Clause (by holding that the Lemon test has been replaced by a standard that asks only if the government action would be perceived by a reasonable observer to endorse religion) and expanding the reach of the Free Exercise Clause in ways that could prove troublesome in other cases (by holding that a substantial burden need not be shown when government actions distinguishes between religious and non-religious conduct and that a state’s interest in imposing greater separation of church and state than federally required is not a compelling interest). Accordingly, in November 2002, we filed an amicus brief in support of a request for rehearing, but the request was denied later that month. The city filed a petition for certiorari with the U.S. Supreme Court, but it was denied in June 2003.