Mr. Feldman offered his services pro bono to the city of Tenafly, N.J., in its fight against Orthodox Jews who wanted to have an eruv, or Jewish ritual boundary, placed around the town. (On the Sabbath, Talmudic law prohibits carrying objects outside a dwelling, but it is allowed if a boundary is placed around a number of dwellings.) In most modern urban landscapes, barely distinguishable pieces of plastic and string are added to telephone poles to create the eruv.
The Tenafly eruv went up in late 1999, but when the mayor found out about it a year later the borough council demanded that it be taken down, prompting the Orthodox community to file a lawsuit claiming religious discrimination. Eventually the Third U.S. Circuit Court of Appeals ruled that the borough had indeed violated the Orthodox community’s right to free exercise of religion. The key to the decision was the court’s finding that the city had pursued an anti-Orthodox agenda, using for the purpose a semi-enforced local ordinance aimed at keeping telephone polls clean.
Wasn’t the eruv a perfect example of a religious symbol on public grounds? To judge by his own thesis, shouldn’t Mr. Feldman have helped the Orthodox community in their lawsuit instead of Tenafly in its effort to ban the eruv?
It was the neutrality of the local ordinance, Mr. Feldman told me in a recent interview, that was the basis of his defense of the city and that led him to get involved "when almost no one else would touch the case." Mr. Feldman contributed what borough officials estimate to be $75,000 worth of his time. The Tenafly dispute, Mr. Feldman argues, had nothing to do with the Establishment or Free Exercise clauses of the Constitution and everything to do with the fact that "there is a neutral, generally applicable law in place."
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