2002 Decisions

Opinions of the United

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Precedential or Non-Precedential: Precedential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 "UltraOrthodox" 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 "nonhousing 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 & JohnsonMerck 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., LeBlancSternberg 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 federalcourt 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, objectivelydefined 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 religionneutral 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 religionneutral. 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 onesentence 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 threeprong 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-foottall 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 nonneutral 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