Chicago-Kent Law Review

Volume 90 Issue 1 Shari'a and in North America Article 4

1-30-2015

Installations of Jewish Law in Public Urban Space: An American Controversy

Charlotte Elisheva Fonrobert Stanford University

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Recommended Citation Charlotte E. Fonrobert, Installations of Jewish Law in Public Urban Space: An American Eruv Controversy, 90 Chi.-Kent L. Rev. 63 (2015). Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol90/iss1/4

This Article is brought to you for free and open access by Scholarly Commons @ IIT Chicago-Kent College of Law. It has been accepted for inclusion in Chicago-Kent Law Review by an authorized editor of Scholarly Commons @ IIT Chicago-Kent College of Law. For more information, please contact [email protected], [email protected]. 35947-ckt_90-1 Sheet No. 39 Side A 01/14/2015 15:25:42 2 Boaz See community community ) devised ) eruv , Dec. 31, 2000, * IMES halakhah T , N.Y. controversy, although not solely although not solely controversy, . As per strictures of Jew- . As per strictures ) 1/5/2015) 9:31 AM eruv ONROBERT is a practice and, is a practice and, more accu- F ELETE 43, 43–71 (2004). Accordingly, no installa- Accordingly, (2004). 43, 43–71 D Replacing the Nation: , Diaspora, and Replacing the Nation: Judaism, Diaspora, and eruv OT halakhah and the ongoing case in the Hamp- and the ongoing N 63 63 1 O (D LISHEVA ed, other than marking the entrance to such courtyards entrance to such the than marking ed, other ISCOVERIES E , entitled D DOCX ). eruv EA S From Separatism to Urbanism: The Dead Sea Scrolls and the and the From Separatism to Urbanism: The Dead Sea Scrolls —allowing observant to circumvent this EAD EAD installations became a necessity only in modern cities. See in Charlotte installations became a necessity only modern eruv HARLOTTE eruv 42 (2007), and Shira J. the controversy, account of for an ethnographic , 11 D , C Jewish Space in Suburbia: Interpreting the Eruv Conflict in Tenafly, New New Eruv Conflict in Tenafly, Interpreting the Suburbia: Jewish Space in Church and State; Drawing a Line in Tenafly Church and State; WITH SMALL CHANGES SMALL WITH ( EWRY EWRY AN AMERICAN ERUV CONTROVERSY .J . of the L. 831 (2003), for a legal analysis , and has published a number of articles on the topic. , and has published a number ONST ONRORBERT ONTEMP C Charlotte Elisheva Fonrobert, Using an Eruv to Untangle the Boundaries of the Supreme Court’s Religion-Clause Jurispru- Religion-Clause the Supreme Court’s of the Boundaries Eruv to Untangle an Using INSTALLATIONS JEWISH OF LAW IN PUBLIC SPACE: URBAN P03 - F During the past two decades, the Jewish practice referredpast two decades, the During the as to in short See , 27 C , has been brought to the attention of a variety has been brought of public forums in the , 5 J. rately, law as defined and aiding the observance of Sabbath an installation discussed by law or traditional rabbinic Jews ish law, observant other on the Sabbath—among are prohibited the across houses, for instance street,of their anything out things—to carry house. However, at the same time as neighbor’s a or into to the synagogue law ( on the Sabbath, rabbinic such behavior prohibiting originate assumes pre-existing boundaries, paradigmatically the walls either of courtyards shared by a pre-existing boundaries, paradigmatically originate assumes as they were typical ancient in the residents, or of alleyways, of Mediterranean urban environ- number ment. Origins of the Rabbinic ‘Eruv Origins of the Neighborhood 1. George James, * Charlotte Elisheva Fonrobert is Associate Professor of Religious Studies in the Department* Charlotte Elisheva Fonrobert is Associateof Religious Studies Professor of Reli- for Jewish Studies. She is the Director University, and of the Taube Center gious Studies at Stanford on the currently working on a monograph tons, which I discuss below. Briefly, discuss below. tons, which I an Hutterer, The Courtyard in the Eruv Urban Space, fromIts Development the Time of the and Ph.D. dissertation, (2013) (unpublished the to Bar Ilan (onthe Twentieth Century University) file with author). The specific and alleyways. Over the course of the history of adapting classical Jewish law to changing urban envi- urban classical Jewish law to changing of adapting Over history the course of the and alleyways. city-wallsronments, European cities were of accepted as pre-existingmedieval boundaries. tion of boundary-marking structures was requir structures boundary-marking tion of focused on the Tenafly case. 2. of an for the establishment Classical rabbinic law in which prescriptions http://www.nytimes.com/2000/12/31/nyregion/church-and-state-drawing-a-line-in-tenafly.html. See generally Susan H. Lees, Jersey Schlaff, dence eruv few prominent cases,United States. In a it has ineven been litigated Amer- in the Tenaflyican courts, such as case a set of practices—the particular Sabbath prohibition under certain circumstances.particular Sabbath prohibition under In the modern the installa- this involves contexts, especiallylarger urban context, and in structures wheretion of boundary-marking pre-existing boundary-markers, not sufficient to operate as a boundary. such as fences, walls, or creeks, are 35947-ckt_90-1 Sheet No. 39 Side A 01/14/2015 15:25:42 A 01/14/2015 39 Side Sheet No. 35947-ckt_90-1 35947-ckt_90-1 Sheet No. 39 Side B 01/14/2015 15:25:42 in HE , eruv eruv : T EWISH EWISH REATER EW , G , 11 J .J 75–91 (Adam 75–91 (Adam EW VS EW installation. Lease installation. ,J ULTURE eruv C Kinyan Kesef note 1, at 61, for a discussion note 1, at 61, for a discussion REEDMAN ODERN ODERN F M [Vol 90:1 90:1 [Vol supra AM 24 (Adam ed., KTAV Publish- Mintz 24 (Adam ) 1/5/2015) 9:31 AM S , set by classical rabbinic law itself, is that , set ELETE D ULTURE eruv ALMUDIC TO The Political Symbolism of the Eruv OT C T N in New York, St. Louis and Toronto, but reaches O (D in American urban contexts should be- in American See generally installations in the United States can be attributed to a In the contemporary controversies, this controversies, In the contemporary (2000). See Lees, ODERN 3 The reasons for the recent The reasons for controversies M DOCX 5 ). RUV FROM eruvin EWRY J :E In fact, in some places, like New York, they New York, places, like some they In fact, in eruvin 4 INE L CHICAGO-KENT LAW REVIEW CHICAGO-KENT LAW that live in mixed neighborhoods and towns have to seek the consent consent have to seek the towns and neighborhoods in live mixed that ALMUDIC TO HIN MERICAN T T A , eruv have been installed in American cities withoutmany S A ’ WITH SMALL CHANGES SMALL WITH T ( note 3, focuses on the It’s A Thin Line: The Eruv and Jewish Community in New York and Beyond York and Jewish Community in New It’s A Thin Line: The Eruv and I OUL OF Sabbathdraehte, Sabbathschnuere, and Judentore: The German Century in the The German Century and Judentore: Sabbathschnuere, Sabbathdraehte, S . See Charlotte Fonrobert, Elisheva RUV FROM eruvin supra :E ORPORATION eruv note 2, and Adam Mintz, Halakhah in America: The History of City Eruvin 1894–1962 1894–1962 Eruvin of City The History Mintz,in America: Halakhah 2, and Adam note C INE ONRORBERT L . 9, 23–24 (2005), for a discussion of the symbolic of diaspora. See alsorent as a strategy of the symbolic for a discussion . 9, 23–24 (2005), RUV involves the public and in certain ways lays claim to the public, this and in certain ways claim lays involves the public supra E HIN P03 - F TUD That the installation of That the installation T .S eruv S A ’ OSTON TRUGGLE FOR THE OC T come come a is bymatter of public controversy self-evident, as those no means have us be- legislation would an issue for church-state who regard this as lieve. Urban controversy since the 1970s. the controversy since I www.bostoneruv.org/kinyan_kesef.htm (last visited Nov. 2014). For an 25, in Newwww.bostoneruv.org/kinyan_kesef.htm example York City at the Paul in an eruv 1959, displayed see Zachary exhibition, University Lev-Museum from ine’s curatorial article, of the argument proposed by Jachter, who served as an expert witness in the U.S. Appeals Court Rabbi Jachter, by proposed of the argument Civil Rights case attributes that proliferation to the effects of the in the Tenafly 2002. Rabbi Jachter in groups in the United States. enhanced assertiveness of Acts of the 1960s that minority ending up in litigation are therefore complex, not only the result of more or litigation are therefore complex, not only the result of more ending up in less willful misperceptions of what is actually involved and at stake with (2011) (unpublished Ph.D. dissertation, New York University) (on file with author), for a discussion(2011) (unpublished of of the of this component of the implementation the historical development spellingagreements are available to out the terms read online, for example, Hutterer, have existed a century.for over S S B Elisheva Fonrobert, Eruv,History of the in 64 64 invisible, relatively minor, relatively which—although this installation, It is becauseand entirelypermeable only—requires,symbolic bydesign, the Jewish communitypublic.” to “go those seeking to institute an those seeking to for the non-Jews representatives of rent from of symbolic form Such consent takes the of non-Jews. of the purposes Mintz ed., KTAV Publishing House 2014), for the discussion of a nineteenth century German German century nineteenth of a discussion for the 2014), House Mintz ed., KTAV Publishing controversy upon de-fortification of the German cities, such as in the case of Würzburg. 3. for the workability of an One of the conditions is first and foremost the because the installationcase foremost is first and in- of the structures and public, in volves the utility form of public cases in the companies many their installationsthe use of the installation space. In as far as in urban of an ing House 2014). ing House 2014). Mintz, installations and their legal representatives. 4. urban of and proponents again, the time as well as, historians, by out This is pointed 5. only to 1962. The proliferation of modern to 1962. The proliferation of only modern and anthropological sociological the than invoking of factors that I cannot rehearse here, other variety younger the and since the 1970s communities orthodox modern changes in scholarship that traces generation’s great interest in older traditions. particular aspect of Jewish Sabbath observance, therefore, defies the con- therefore, observance, of Jewish Sabbath particular aspect of liberal democra- to the private sphere as is the goal signment of religion cies. 35947-ckt_90-1 Sheet No. 39 Side B 01/14/2015 15:25:42 B 01/14/2015 39 Side Sheet No. 35947-ckt_90-1 35947-ckt_90-1 Sheet No. 40 Side A 01/14/2015 15:25:42 in the eruv ILLAGE OF OF ILLAGE 65 65 V ) 1/5/2015) 9:31 AM ,NY ELETE D EACH on constitutional, Establishment on constitutional, Establishment OT controversy this lawyer allud- that B N O eruv (D eruv DOCX ). ONTROVERSY IN THE C . They arguably have to do with local politics, politics, . They local to do with have arguably ESTHAMPTON RUV W E eruv JEWISH LAW IN PUBLICURBAN SPACE HE T WITH SMALL CHANGES SMALL WITH ( I. 6 ONRORBERT P03 - F In what follows, I In what follows, I controversywill discuss the ongoing in the Hamp- I was intrigued, of course, in the sudden interest in my academic work academic interest in my the sudden I was intrigued, of course, in Two years was contacted by ago I from a law firm New York intro- We represent a group of persons from diverse backgrounds, but largely diverse backgrounds, from a group of persons We represent the opposing who are Jews, reform Clause grounds. Your name has been given to us as a leading scholar in as a leading scholar in to us given has been Clause grounds. Your name as much. CV confirms impressive of your review brief a this area, and to better both on the issue, perspective in an academic We are interested clear of of steering but also for purpose it the ourselves about educate responses that tend to or political emotional of the understandably some regard, In that religious angle. a purely from arise when it is approached purely constitutional legal ques- the the litigation is likewise focused on tionsnot and in is way attempting any to advance an anti-orthodox sen- timent. 6. from Email Timothy with author). (Aug. 10, 2012) (on file F. Hill to author 2015] 2015] of an the installation a of such or anticipation and the perception demographics with changing Jews, between American divisions among and with deepening change, our importantly—for perhaps most Finally, orthodox Jews. liberal and and visi- constitute controversies purposes—such and contestation of religion a in public space.ble religiosity analytical reference description of the case with providing an tons, by first and bythen to other controversies, its implications discussing for the larger on that to focus The reason I want public sphere. the in issues of religion specific conflict is not so much because of the particulars of the case. In controversies sharefact, the various quite a few aspects in common, the in this politics notwithstanding. However, particularities of local case, my of the cultural politics origin and the own scholarly on the work C.E. was not only called classical rabbinic literature of the first millennium became subject of con- but in the litigation, testimony upon as providing entangled Historyof religion became flicting interpretation in and of itself. with the practice of law. ed to was one that had caught the attention of the wider public not only in in the wider public not only attention of ed to was one that had caught the in classical rabbinic legal literature by contemporary law. It did not take a contemporary literature by in classical rabbinic legal lot of research to figure out that the ducing themselves in the following manner: in the following manner: ducing themselves 35947-ckt_90-1 Sheet No. 40 Side A 01/14/2015 15:25:42 A 01/14/2015 40 Side Sheet No. 35947-ckt_90-1 35947-ckt_90-1 Sheet No. 40 Side B 01/14/2015 15:25:42 Michael , June 22, , IMES see also Rather, this this Rather, 7 The evolving The evolving , jpoewhb.com (last, jpoewhb.com 8 , provides a brief eth- , provides , N.Y. T , Aug. 15, 2012, 2012, 15, Aug. , , RUV E installation itself. IMES EACH B eruv [Vol 90:1 90:1 [Vol , L.A. T ) 1/5/2015) 9:31 AM (Mar. 23, 2011), 2011), 23, (Mar. PPOSED TO THE HOW ELETE O S D ESTHAMPTON W OT Jewish Space in Suburbia in Jewish Space N 9 AILY O D EOPLE P (D New Eruv Reopens Old Church-State Debates in Palo in Palo Church-State Debates New Eruv Reopens Old HE , T ILLAGE OF DOCX note 1. The Palo Alto found reflection controversy mostly note 1. ). EWISH EWISH on the Comedyin a faux on the Channel Central , V supra in Westhampton Beach their own website, whichestablished in Westhampton As a scholar of classic Jewish law and literature As a scholar literature of classic Jewish law and 10 CHICAGO-KENT LAW REVIEW CHICAGO-KENT LAW eruv See supra , July 18, 2007, 2007, 18, , July Orthodox Jews’ Request Divides a Resort Village Request Orthodox Jews’ as a form of going public for Jewish observance of Jewish observance of going public for as a form , The Thin Jew Line WITH SMALL CHANGES SMALL WITH ( eruv ORWARD F The Daily Show The Daily proponents took a liking of this segment, clearly not so took a liking of this segment, for its general much mockery proponents AILY Joseph Berger, Joseph Berger, D ONRORBERT An Eruv in the Hamptons? Why Not? The Fight over a Proposed Eruv in Westhampton Westhampton Eruv in Fight over a Proposed Not? The Why An Eruv in the Hamptons? eruv Eruv Information and Litigation See P03 - F The background of the controversy and evolution of the litigation can litigation of the evolution the controversy and The background of EWISH EWISH has rendered and continues to render visible. In as much as we canIn as has rendered visible. much to render and continues , J 9. 9. of the first millennium C.E., also known as rabbinic law and literature, I C.E., also known as rabbinic of the first millennium impartialinto that litigation the litigation, even as I was drawn to remained of religion, I consider this controversyitself. As a historian particu- as one social dynamics between Jews in all of history the long lar instantiation of the of the institution between Jews and non-Jews, that their variety, and eruv think about the of what to outsiders must seem like much ado about nothing. But the faux interviews end up ridiculing interviews end up faux the But nothing. ado about seem like much must outsiders of what to than the of the mechanics more the exasperation of the opponents much particular controversy had acquired some notoriety by being featured on featured by being notoriety acquired some had controversy particular Jon Stewart’s interview segmentinterview by “The Wyatt Cenac, Jew Thin Line”. http://thedailyshow.cc.com/videos/1jsrl7/the-thin-jew-line. itpersonal anecdotal evidence, Based on appears that traditional Jewish law, I considerwant to the relevance of the Westhamp- the pub- religion onto of ton controversy about the to our thinking mapping democracy. divide underwriting liberal lic and private 2008, http://www.nytimes.com/2008/06/22/nyregion/nyregionspecial2/22mainli.html; 2008, http://www.nytimes.com/2008/06/22/nyregion/nyregionspecial2/22mainli.html; A. Helfand, Beach, N.Y., is About Telephone Lines and Much More Than String visited Nov. 25, 2014). Other controversies have produced extensive ethnographies, with scholars have produced extensive 2014). Other controversies visited Nov. 25, recorded in courtgiving credence to the variety of voices documentation, and letters to theminutes, Jennifer A. Cousineau, see generally controversy, extended For the editors of local newspapers. of Experience and Construction, Representation The 1988–2003: Eruv, London Making the Northwest (on file Ph.D. dissertation, of California Berkeley) University a Sabbath Space (2006) (unpublished with Gardner Library, University of California Berkeley). the Palo For Alto controversy, which was never litigated in court, see generally John Mandsager, The ‘Eruv: A Space for Negotiating Identity (on file with Green Stanford University) Studies, in Religious Thesis Honors 2002) (unpublished (May Library,University).Stanford Susan H. Lees’ article, http://westhamptonbeach.org/eruv-litigation/ (last updated Aug. 11, 2014). (last http://westhamptonbeach.org/eruv-litigation/ J controversy. of the details the evolution 10. the of The opponents litigation of the case is well documented in the public sphere at the public sphere at in the of the case islitigation munici- documented well ofpal website presents a col- Beach, which Village of Westhampton The relevant court documents. lection of the 7. 7. 66 66 case in was the as reports, newspaper other controversies. nography of the Tenafly conflict. of the Tenafly nography http://forward.com/articles/11190/new-eruv-reopens-old-church-state-debates-in-p-/. http://forward.com/articles/11190/new-eruv-reopens-old-church-state-debates-in-p-/. 8. Central Comedy http://articles.latimes.com/2012/aug/15/opinion/la-oe-0815-helfand-eruv-westhampton-sikh-20120815. http://articles.latimes.com/2012/aug/15/opinion/la-oe-0815-helfand-eruv-westhampton-sikh-20120815. For the Tenafly case, see sources cited Josh Richman, in , for example, Alto only be told in brief here. be told in only 35947-ckt_90-1 Sheet No. 40 Side B 01/14/2015 15:25:42 B 01/14/2015 40 Side Sheet No. 35947-ckt_90-1 35947-ckt_90-1 Sheet No. 41 Side A 01/14/2015 15:25:42 : INE L 109– eruv eruv (He- HIN T available at available ULTURE The Eruv and The Eruv and C lechis lechis S A ’ will enable T However, in I Sociological Con- . To that end, . To that 12 in , , ODERN eruv eruv M proponents entered into an entered proponents EACH B 67 67 eruv , criticism of the project , criticism ALMUDIC TO , ) 1/5/2015) 9:31 AM For the purpose of an For the purpose in the contemporary in the contemporary United States. For T eruv 11 ELETE EACH ESTHAMPTON D B eruvin W proponent would not want to ap- proponent would OT N RUV FROM O eruv (D :E , 121–29 (Adam Mintz ed., KTAV Publishing House , 121–29 (Adam in the United States, see in the Blu Greenberg, INE ILLAGE OF L DOCX ESTHAMPTON ). , V 121 Press 1933). University (Oxford W eruvin HIN What ULTURE T 13 C S A S A ISHNAH ’ T M I ILLAGE OF ODERN ODERN in HE JEWISH LAW IN PUBLICURBAN SPACE , V M ,T See WITH SMALL CHANGES SMALL WITH ( ANBY D note 1, at 45. On the changing role of women in modern orthodox communities as a communities orthodox in modern of women role changing 45. On the 1, at note ALMUDIC TO T ONRORBERT ERBERT supra Map of Proposed Eruv Area 2008 Eruv Map of Proposed H P03 - F As the orthodox community of Westhampton Beach came forward Beach came of Westhampton As the orthodox community In March 2008, when the modern orthodox synagogue in Westhamp- synagogue orthodox the when 2008, In March modern RUV FROM agreement with Verizon. http://westhamptonbeach.org/wp-content/uploads/2012/10/whb-eruv-map-2008.pdf http://westhamptonbeach.org/wp-content/uploads/2012/10/whb-eruv-map-2008.pdf That after the (last updated Aug. 11, 2014). map was extended in 2010, http://westhamptonbeach.org/wp-content/uploads/2012/10/eruv-map.pdf (last visited Nov. 25, 2014). http://westhamptonbeach.org/wp-content/uploads/2012/10/eruv-map.pdf 12. (May 23, 2008), Board of Trustees, & Members Beach Community of the Westhampton 13. RabbiLetter from Marc Schneier to BeachWesthampton Mayor Conrad Teller, Village of This http://westhamptonbeach.org/wp-content/uploads/2012/10/hampton-synagogue-letter-5-23-08.pdf. is used overargument and over again urban for proposing Tenafly and Rabbi ’s argument in his testimony to the U.S. Court of Appeals in 2002, in 2002, to the U.S. Court of Appeals testimony in his Hershel Schachter’s argument and Rabbi Tenafly see Lees, E 11. 11. 2015] 2015] 21 (Adam Mintz ed., KTAV Publishing House 2014) and Sylvia Barack Fishman, Barack Fishman, and Sylvia Mintz 2014) ed., KTAV Publishing House 21 (Adam in American Jewish Communities of Eruv Construction texts and Complications started to foment, even though the orthodox rabbi employed the classic the employed rabbi orthodox started to foment, even though the arguments“the in defense of the eruv, namely, modern families to push childrenfamilies small in strollers or baby carriages when they go to services on the Sabbath.” the encounter between rabbiniclaw and the contemporary U.S. legal sys- valence of these plastic strips that are part symbolic it is the of the tem, will discuss. litigation, as I of an installation with the proposal for the the executive director of the orthodox community director of the executive a license obtained Island case the Long in this utility companies, with the public agreement poles and of their utility of some use to make (LIPA), Power Authority lines, where the natural andpre-existing markers in built environment did the map of the boundaries for boundary.not provide a contiguous A is readilyproposed in 2008 available online. ton Beach was about to celebrate its eighteenth anniversary its eighteenth was about to celebrate ton Beach in that village, an community of the orthodox proposed the installation the Changing Role of Women Role the Changing factor in the modern popularity of urban of urban popularity factor in the modern installation, use of utility poles and telephone lines entails minimal utilityinstallation, use of lines entails poles and telephone manipu- minimal affixing plastic strips on themselves by companies the utility lation, namely law, these plasticthe poles. In rabbinic strips are referred to as brew) or side-posts of what is to brew) or side-posts constitute symbolic . of In terms rabbinic law its founding legal text back to going second centuryof the and adaptations thereafter, such interpretations and its C.E., the Mishnah, symbolicplastic strips constitute a modern of what in the late emulation of as gateways were thought to a containedancient urban environment residential space, such as the walled courtyard or alleyways. 35947-ckt_90-1 Sheet No. 41 Side A 01/14/2015 15:25:42 A 01/14/2015 41 Side Sheet No. 35947-ckt_90-1 35947-ckt_90-1 Sheet No. 41 Side B 01/14/2015 15:25:42 estab- Charlotte E. Charlotte eruv See associations as the installations are to be attributed eruv [Vol 90:1 90:1 [Vol eruv ) 1/5/2015) 9:31 AM note 1, at 58. ELETE as a motivation by City some supra D 16 note 10. OT N O 14, gender as14 (2011). But either way, a strategic supra (D proposal in the Westhampton contro- proposal in the Westhampton 15 , in Washington D.C. installed in 1990. 1990. D.C. installed in Washington in installations, whether controversial or amicable. DOCX RUV eruv ). E eruv eruv CHICAGO-KENT LAW REVIEW CHICAGO-KENT LAW by any governmental, quasi-governmental or cor- quasi-governmental governmental, by any VISUAL CULTURE & note 1, at 44. Certainly, some contemporary proponents play up “tradi- play proponents contemporary some note 1, at 44. Certainly, eruv PPOSED TO THE PPOSED TO O supra WITH SMALL CHANGES SMALL WITH ( proposal. In May 2010, the EEEA entered an agreement 2010, the EEEA In May proposal. ? In response to the proposal, opponents of the opponents of to the proposal, ? In response EWISH ARTEWISH EOPLE P eruv eruv It bears emphasizing that this group represents itself quite ex- group represents this emphasizing that It bears :J.J 14 ONRORBERT to instigate intra-Jewish divisiveness, betweeninstigate intra-Jewish divisiveness, “the Reformed to . Diaspora Cartography: On the Rabbinic Background of Contemporary Ritual Eruv Prac- Ritual On the Rabbinic Background of Contemporary Diaspora Cartography: EWISH EWISH Id MAGES P03 - F After initial failure of the Arguably, this aids their strategy aids their Arguably, this conflict as an intra- of casting the Palo Alto controversy,In the Tenafly controversy, as in the Jews of a Jewish People for the Betterment of Westhampton Beach (Known as (Known as Beach of Westhampton for the Betterment Jewish People of those roots organization grass a the Eruv), to Opposed People Jewish home- who are and neighbors friends faith, their families, of the Jewish to opposed is and its environs, Beach Westhampton in reside or owners the erection of an porate authority in this community. eruv , 5 I versy, its proponents eventually incorporated themselves as the East Endthe East as themselves versy, eventually its proponents incorporated forming of The Eruv Association Inc. (EEEA). plicitly and strategically as Jewish: 14. J 14. argument certainlyargument plays a central role in Fonrobert, tice to “changes in the social position of women among modern Orthodox Jews” in favor of seeing it as it as seeing of in favor Jews” among modern Orthodox women of social position in the “changes to where gender community,” in the constitute which whole families of community “a concept about one sub-set. Lees, forms case of the values,” as in the tional family 16. cited in Lees, Richard Wilson, Council member, 2014). Susan H. Lees rejects the argument of that the proliferation 68 68 Americanto the basic peal equity gender sense of for the concern and basic ef- of the beneficial non-Jewish authorities in order to convince disabled fects of the Council members to vote against its installation. But the opposition did not opposition against its installation. But the to vote Council members Jewish.incorporate itself in the name of being entity to be responsible for the to carrymainte- forth the installation and the practice in almosthas of course been installation every nance of the other urban Jewish conflict, especially in legal terms. This is then how the law firm that the law firm how This is then Jewish conflict, especiallyin legal terms. contacted its clients. the email cited above represented in me variety liberal religious, political and secular of backgrounds provided representnot did but the opposition voices in the opposition, prominent itself as primarily or unified under a Jewish Jewish, Susan H. umbrella. Tenafly the concern voiced in the Lees documents conflict over the force of the 15. 15. lished themselves as a group as a to the Jewish People Opposed known as the lished themselves the controversy own website detailing with their Eruv (“JPOE”), and their take on it. Jewish people, Secular Jewish people . . . and Other Orthodox Jewish peo- and Other . . . Jewish people, Secular Jewish people of the sect,” ple who are not members 35947-ckt_90-1 Sheet No. 41 Side B 01/14/2015 15:25:42 B 01/14/2015 41 Side Sheet No. 35947-ckt_90-1 35947-ckt_90-1 Sheet No. 42 Side A 01/14/2015 15:25:42 19 namely the 17 The Daily Show as an institution to as an institution to , now envisioned as as , now envisioned 69 69 eruv eruv ) 1/5/2015) 9:31 AM available at available ELETE D association. On July 30 of the OT N O eruv (D DOCX ). JEWISH LAW IN PUBLICURBAN SPACE WITH SMALL CHANGES SMALL WITH ( The attorneys for JPOE claimed a violation of the Establish- 18 ONRORBERT available at Id. P03 - F In March 2013, the JPOE and its attorneya request to the LIPA made From that point forward, both camps have remainedthat From that point forward, both camps in litigation The eruv contemplated and intended for imminent construction by De- construction by for imminent and intended The eruv contemplated the aid and coopera- with (“EEEA”), Association East End Eruv fendant public wholly certain will mark Verizon and LIPA, of defendants tion will in- Indeed, it significance. religious with the Village within spaces religious and parochial narrow with a Village of the vest a large portion Clause.] of the Establishment a violation constitute function [and thus 526 (2011), 17. Beach, 2d 828 F. Supp. Westhampton of Vill. Eruv Ass’n, Inc. v. at 2, East End Complaint http://westhamptonbeach.org/wp-content/uploads/2012/10/east-end-eruv-federal-complaint.pdf. at 1, Jewish People for the BettermentComplaint Beach v. Vill. of Westhampton of 30, 2012), July (E.D.N.Y. CV-123760 No. Beach, Westhampton 18. http://westhamptonbeach.org/wp-content/uploads/2012/10/complaint-JPOE-against-village.pdf. 19. 2015] 2015] company their utility use of to make (Verizon) utility an additional with the the installation of the purposes of poles for covering a larger area. From there, the social dynamics in the Village, be- dynamics in there, the social From area. a larger covering tween hadwhat two solidified into now to the deteriorated opposing camps, an attorney. the Village hired degree that headedin turn, was The EEEA, member Hamp- of the by to be a founding who also happened an attorney against the Vil- EEEA filed a lawsuit in Federal Court The ton Synagogue. lage in January lawsuit that the actions of the 2011. That suggested defend- the Village and ants—at this point individuals— a number of named of and interference with Plaintiff’s rights deprivation ”constitute intentional and private contracts States and statutes, under the United Constitution EEEAentered into between and independent third parties,” ment Clause of the First Amendment to the United States Constitution: Constitution: ment Clause States to the United of the First Amendment our thinking about the place of religion in the public sphere. in the public of religion about the place our thinking agreement with the its to terminate the Village same year, JPOE filed a lawsuit in U.S. District Court, naming LIPA as Inc., and Beach, the EEEA, Verizon New York of Westhampton defendants. utility companies. That is, the EEEA utilitylaid claims companies. to the Free Exercise when is also the time This Amendment. Clause of the First became interested aired it’s in the controversy for its comedic purposes and version of it. now famous has only to escalate. In with legal counsel continued conversations my on for the of who is toboth sides, both have different versions escala- blame nor consider it my interest, to see myselfdo not in a position, tion, and I again, is in under- this. My main interest, to emphasize for assign blame of the “publicness” of the standing the implications 35947-ckt_90-1 Sheet No. 42 Side A 01/14/2015 15:25:42 A 01/14/2015 42 Side Sheet No. 35947-ckt_90-1 35947-ckt_90-1 Sheet No. 42 Side B 01/14/2015 15:25:42 , at 54. Suffice it to http://www.vberger- note 1 Deep Divisions over Symbolic Deep Divisions over supra have to be perceived as have to be [Vol 90:1 90:1 [Vol available at available ) 1/5/2015) 9:31 AM Lees, See lechis ELETE D OT Vivian Berger, N L. J. 51, O (D L ’ , at 42. AT DOCX ). note 1 See generally , 35 N 35 , , at 834–835 (providing the most extensive legal discussion of of extensive legal discussion most the (providing , at 834–835 (discussing, albeit briefly, only First Amendment issues involved in First only Amendment (discussing, albeit briefly, supra CHICAGO-KENT LAW REVIEW CHICAGO-KENT LAW note 1 Lees, note 18, at 3–4. Both parties thus copied Both parties of the parties the strategies See WITH SMALL CHANGES SMALL WITH ( 20 supra supra controversies yet, focusing primarily on the Tenafly case). Both the Establishment on primarily focusing controversies yet, If, so the argument goes, the If, so the eruv 21 Schlaff, ONRORBERT See would be a good tool to “untangle” the bewildering jurisprudence of the Supreme Court of the of the Supreme the bewildering jurisprudence would be a good tool to “untangle” P03 - F I received the email citedweeks after above two filed its the JPOE I received the email Clause argument concerns the of the Establishment One component The JPOE, therefore, relied on the First Amendment, just like the just like Amendment, the First relied on JPOE, therefore, The eruv 21. Complaint, 21. involved in the Tenafly litigation. The conflict in Westhampton Beach,Westhampton conflict in The litigation. Tenafly in the involved as we documented, all publically component, adds one interesting however, shall see momentarily. was tolawsuit. The request “academic” perspective, as opposed provide an Presumably, be a “purely this can meant perspective. religious” to one from scholar’s per- that is, to provide an academic only in institutional terms, I perspective. After some conversation, rabbi’s to a spective, as opposed incapable myself the invitation, as I considered decided to decline of to of one side in a conflict that I understand expertise on behalf providing be borne by local politics, want to intervene. The lawyersin which I did not Clause Establishment the of violation testimonyfor the JPOE sought on the with citations of those pieces of my provide them ways. did I in two main relevant to the case. published work that seemed nature of the plastic strips to be affixed to the public utility poles and whether indeed these are to As the as a religious symbol. be regarded plain- “a constant and ever-present symbol,tiffs argue, the plastic strips constitute to message, the communityand reminder secular public at large, that the spaces of the Village have for religiousbeen transformed identity.” use and They are a “symbolparticular of their [cef, the orthodox community’s] public on displayed openly to and affixed of observance permanently kind property.” contemporary contemporary and Free Exercise came arguments up in the Tenafly case. in the public sphere of religion say that I remain of all the unconvinced that contestations the United States with regard to religion. Have Ruled the Boundary: Courts ‘Eruv’ a Free Exerciseit Entangles Accommodation; Critics Say Religion with Public Property mediator.com/mediation/eruv.html the Westhampton Court itself turned down the request of the City ofBeach dispute). The Supreme Tenafly to hear the case. 20. 20. 70 70 EEEA in its federal complaint in 2011. But while the EEEA took recourse while the EEEA But its federal complaintEEEA in in 2011. Exercise Clause,to the Free in the JPOE turned to the Estab- its 2013 case Clause. lishment religious symbols, the Village’s permission to the religious community to community the religious to permission the Village’s religious symbols, particular religious commu- use property endorsement of a could constitute nity and would therefore violate the Establishment Clause. However, part Test introduced byof the Endorsement Religion- Justice O’Connor into 35947-ckt_90-1 Sheet No. 42 Side B 01/14/2015 15:25:42 B 01/14/2015 42 Side Sheet No. 35947-ckt_90-1 35947-ckt_90-1 Sheet No. 43 Side A 01/14/2015 15:25:42 , eruv supra The The , 24 EGAL ULTURE L note 8. See also note C Lynch v. Donnelly installment installment be- supra , ODERN visibility, and visibility, the propo- M eruv installation and the and the installation 22 25 71 71 eruv’s eruv IFFERENCE AS A AS IFFERENCE ) 1/5/2015) 9:31 AM ALMUDIC TO D T The Thin Jew Line ELETE D [cef: the rabbinic legal term for term [cef: the rabbinic legal OT ’s skit takes on the issue of visibility of the ’s skit takes N O RUV FROM or poles and fishing-line themselves. or poles and fishing-line themselves. (D ELIGIOUS lechis :E R RGUMENT DOCX INE uv are quick to tout what they contend is what they contend quick tout uv are to Daily Show ). A L The Endorsement Test was introduced in Test was introduced in Endorsement The lechis . 2. 2. í HIN T 23 S A ’ T ISIBILITY OF ISIBILITY JEWISH LAW IN PUBLICURBAN SPACE note 1 at 837 installation is not unique to the Westhampton contro- Westhampton unique to the installation is not V note 18, at 1 go unnoticed; rather, it unnoticed; and ever- go will be a constant note 1, at 45–46; Robert C. Ash, Mountains Suspended by a Hair: Eruv, by a C. Ash, Mountains Suspended Robert 1, at 45–46; note WITH SMALL CHANGES SMALL WITH ( not eruv supra supra UBLIC P controversy, in a variety of forms and shapes, and not only and shapes, and not only a variety of forms controversy, in Lees, at 3. Even Wyatt Cenac in the at 3. ONRORBERT focused on different aspects of visibility,namely the change in II. 26 See Id. Id. See Schlaff, supra See Schlaff, supra eruv P03 - F This is where the dispute over the visibility of the This is where the The dispute over the symbolic nature of the nature over the symbolic The dispute They emphasize that “indeed,They point of the eruv, for those the whole emphasize Although proponents of the er Although proponents of the invisible nature the nearly the plastic strips] and other components of the eruv, it is those same pro- those same of the eruv, it is components other the plastic strips] and particular interpretation their upon who insist, based themselves ponents of eruv, The of the eruv. physical presence actual on the law, of Jewish course, will present symbol, message and reminder to the community at large, that at large, that community to the reminder and message symbol, present for reli- beenthe Village have transformed of spaces public the secular use and identity. gious nents’ side for requiring something that is virtually invisible. that is virtually nents’ side for requiring something Adam Mintz’s Introduction to I to Introduction Mintz’s Adam Symbolic Act by Which the Legal Fiction of Community is Established 41, 239–42 (unpublished Ph.D. Ph.D. (unpublished 239–42 is Established 41, Community the Legal Fiction of Act by Which Symbolic thesis, University of Leicester) (on file with University of Leicester Library). installation with both parties—the opponents’ side for exaggerating the side for parties—the opponents’ installation with both This is the case alsoThis is the case complaint Beach dispute. The in the Westhampton filed by in July introduces2012, the JPOE in this way: the visibility issue visibility of the visibility of the comes important. The factor of visibility is at the center of almost every every of almost is at the center visibility of The factor important. comes recent regarding the visibility of the versy, although both the Tenafly conflict and the controversy in North versy,controversy in Tenafly and the both the although conflict London note 3, at xv. 26. 25. 25. 24. 24. 465 U.S. 668, 688 (1984) (O’Connor, J., concurring), but although accepted by the majority, as dis- the (1984) (O’Connor, J., concurring), accepted by 465 U.S. 668, 688 majority, but although Complaint, constitutes clear supposedly what from it is far since to criticism subject Schlaff, it has been cussed by an observer standard. 23. 22. 22. 2015] 2015] pur- of governmental that “irrespective requires jurisprudence Clause gov- whether determines observer and objective reasonable the . . . pose religion.” the effect of endorsing action has ernmental JPOE refers to the lechis as a “religious and its display,” with which “JPOE a dailybasis.” members . . . on . . . will be confronted who observe it, is to openly and visibly demarcate a certain geographic area demarcate who observe it, is to openly and visibly as a Jewish a Jewishprecinct, i.e., a symbolic extension of home.” 35947-ckt_90-1 Sheet No. 43 Side A 01/14/2015 15:25:42 A 01/14/2015 43 Side Sheet No. 35947-ckt_90-1 35947-ckt_90-1 Sheet No. 43 Side B 01/14/2015 15:25:42 ) reli- lechis mean noth- lechis Anyone who has 27 installation defy the [Vol 90:1 90:1 [Vol eruv on the pre-existing utility pre-existing utility on the ) 1/5/2015) 9:31 AM ELETE lechis D OT N O in that sense, already defy visibility. constitutes a interventionminimalist (D eruv DOCX installation exists, a non-informed or rea- or exists, a non-informed installation ). 2 (detailing argument by2 (detailing argument plaintiffs). í eruv ’s take on this will have to agree to that. That is,agree to that. to will have this ’s take on CHICAGO-KENT LAW REVIEW CHICAGO-KENT LAW note 18, at 1 WITH SMALL CHANGES SMALL WITH ( supra This applies even to those cases, where there are no pre-existing ONRORBERT The Daily Show The Daily 28 one at that, to a reasonable and objective observer: they one at are barely P03 - F watched unless one knows that the knows that the unless one sonable and observer will not notice it, andobjective certainlymost not be observer, whoable to decipher or meaning. Even the informed its function fromas the one in controversy a long, drawn-out emerges Palo Alto, such Tenafly, “be confronted by” will not or London, otherwise have his or it or way, as an “ever-presentupon in any significant intruded her field of vision symbol.” 27. Complaint, 27. located in the neighborhood but at the margins, and 28. the fact that utilityThis is aside from and the poles with fishing-line are poles not centrally 72 72 Jews Orthodox more supposedly with neighborhood of the the appearance would be easy Arguably, it to town. the argu- enough to counter moving plastic the visibilityment over of the the utilitystrips on poles (alias themselves and the other components of the eruv. of the components other and the themselves utility poles and lines that can be used, and where, therefore, additional thin be used, and where, therefore, additional can utility and lines that poles to be erected in order to span a street, have poles with fishing-lines which is Beach. As far as I know, of debate in Westhampton not what was subject were to one to prove this point. If andstop the hundreds no study exists eachperhaps thousands of cars that cross span- day under the fishing-line roads city leading into the ning one of the major of Palo Alto, and asked the drivers whether they had noticed that self-same fishing-line, or the posts on either side of the road supporting not a is it, there no doubt that simply in the affirmative. The to answer would be able the drivers single one of so, for the more be true, even same would semantic purpose of what makes a religious symbol a symbol, and a a symbol, religious symbol semantic purpose of what makes a gious any inherent significance or message. noticeable and do not bear They are even a or the way is readablepublic, to the the way a cross not readable in menorah or a creche are readable, because they in and of signify something buildings, and mosque Compared and to church, synagogue, themselves. their the and steeples, minarets poles. In that regard, these components of the poles. In that regard, these components ing other than to those who rely on them as to their Sabbath observance. on them who rely to those than ing other to figure jurisprudence the Court’s be beyond Arguably, however, it might constitutes a “religious” symbol.that out what it is in, and manipulation of, the built environment. Thus, the built environment. Thus, of, the in, and manipulation 35947-ckt_90-1 Sheet No. 43 Side B 01/14/2015 15:25:42 B 01/14/2015 43 Side Sheet No. 35947-ckt_90-1 35947-ckt_90-1 Sheet No. 44 Side A 01/14/2015 15:25:42 . OF . EWISH EWISH J respon- ONF responsa .C outright: ENT ,C eruv OURCES OF S RGUMENT Declaration of Rabbi A 2:13-cv-4810 (E.D.N.Y. (E.D.N.Y. 2:13-cv-4810 73 73 see also see EGAL ISTORY AND L H ) 1/14/2015) 9:13 AM In other words, the dispute is In other words, the dispute is , even though the articulation of rabbinical rabbinical articulation of the though , even 30 ELETE D OT N O responsa (D This is an absolutely amazing This is an absolutely move for 29 installationJewish project, as a sectarian DOCX ). NTRODUCTION TO THE installation would therefore constitute an I ECTARIANISM ASECTARIANISM A S N eruv A eruv See EWISH JEWISH LAW IN PUBLICURBAN SPACE -J See Contemporary American Reform Responsa: 178. Eruv note 18, at 2. WITH SMALLCHANGES WITH ( supra NTRA are readily available online at http://ccarnet.org/rabbis-speak/reform- III. I (Rabbi David Saperstein, who was then the Director and Counsel of the Religious Action (Rabbi David Saperstein, who was then the Director and Counsel of the Religious ONRORBERT (July 1983), http://ccarnet.org/responsa/carr-268-269/; Collections of rabbinic legal opinions constitute a historical practice that is part of tradi- historical practice that is part a constitute opinions Collections of rabbinic legal responsa Id. ABBIS P03 - F The second component of the complaint, to is unique so far however, component The second 207–10, 281–82, 362–63 (N.S. Hecht et al. eds., (N.S. Hecht et al. 362–63 207–10, 281–82, Oxford Univ. Press 1996). The Reform move- .R literature. This is by no means to say that such opinions do not represent valid articulations of Juda- do not represent valid that such opinions to say literature. This is by no means M AW Establishment to would give preference Clause infraction, as government be “reasonably seen andan intra-religious dispute, or could one side of particular as endorsing by[cef: understood JPOE and its them members] now cast as one over the correct interpretation of Sabbath law and its ob- The Vil- of Judaism. servance, rather than as one over divergent versions for the lage’s permission ism, authentic ones in their own right, any more or less than contemporary Jewish orthodox Jewish orthodox or less than contemporary any more own right, in their authentic ones ism, Reform can be found at http://ccarnet.org/responsa/carr-268- responsum and this particular responsa/index/, invoke the not does in 1984, in question who wrote the responsum 269/. In either case, Rabbi Wohl, ‘true’ spirit of Jewish law. A No. v. Town of Southhampton, Ass’n. David Saperstein at 2, East End Eruv Oct. 28, 2013) in Judaism “is ad- WashingtonD.C., declared that the Center of Reform wording of that responsum Sabbath, observe the for us to is important eruv community believes the the Reform dressed to whether oughtnot what a standard for the whole Jewish community to be”). 29. Complaint, 29. 30. literature. tional Jewish halakhic L as opinions rabbinical of its think continues to ment than traditional and interpretation very different style of legal argumentation follows a opinions sa 2015] 2015] a legal argument, since now the lawyersa legal argument, lay to an authentic (“true”) claim to a supposedly recourse author- They understanding of Judaism. are taking byitative decision, issued organization of Reform umbrella the rabbinic the of American RabbisCentral Conference Judaism, (CCAR). law- The CCAR’syers to have rejected the recommendation read the and this is where the incorporationand this of JPOE becomes of the opposition spellsrelevant. The document out: “Manythe very Jews reject concept of an eruv, and sincerely the particular believe that formJewish of belief and spiritual observance that elevates constructs over the true such legalistic views own religious is abhorrent to their and the Sabbath values of Judaism of Jewish law.” and interpretation the Westhampton Beach dispute, at least in its overt nature. The JPOEin its overt nature. dispute, at least Beach the Westhampton complaint to cast the seeks “Indeed, it is the official position of the Central Conference“Indeed, it is the official position of American that an eruv is a sort of ‘legal fiction’ which is incon- . . . Rabbi (‘CCAR’), sistent with the true ‘spirit’ of Jewish law.” 35947-ckt_90-1 Sheet No. 44 Side A 01/14/2015 15:25:42 A 01/14/2015 44 Side Sheet No. 35947-ckt_90-1 35947-ckt_90-1 Sheet No. 44 Side B 01/14/2015 15:25:42 But the 32 to say that in early rab- not served the early eruv eruv of persuading follow- as a misinterpretation as [Vol 90:1 90:1 [Vol eruv Sabbath law does not con- ) 1/5/2015) 9:31 AM ELETE strategies D OT biblical N O (D DOCX ). . The contemporary Jewish landscape in the . The contemporary CHICAGO-KENT LAW REVIEW CHICAGO-KENT LAW is the only possible, only appropriate, or even only or even only is possible, only appropriate, the only eruv eruv note 18, at 3. note 2, at 48–51. note 2, at 48–51. WITH SMALL CHANGES SMALL WITH ( supra supra 31 have been around for almost two millennia of Jewish cultural two millennia almost have been around for ) altogether a sectarian form This is of Judaism. ONRORBERT Sabbath law, even though the Sabbath law, even though the eruv P03 - F This is where two arguments that I in advance of classical reading my Second, another argument I advance in argument of classic rabbinic reading my Second, another as a mechanism to allow Jews to do just that on the Sabbath. the allow Jews to do just that on to as a mechanism Jewish halakhah the institution of an determination is beyondthe Such the Sabbath. authentic way to observe of scholarship realm of religious belief and interpretation. and a matter of point of considering the rabbinic legal strategypoint of considering in some way as sectarian the rabbinic strategies Jewish landscapes was to read within the late ancient interpretations and legal making law of its own innovations of casting the what theyof biblical law for were, namely ers of the scholars of clas- authoritativeness of their legal authority. Among sical rabbinic literature and law, this is a common by view now, beyond matters related to the United States is a very Jewish landscape compareddifferent religious and to the late ancient, not least of all because by the discourse now prac- and tice of it is difficult to construe the history. Therefore, tain much that would suggest such a that tain construct. Nor does it much make much sense to consider the eruv “sectarian” unless one considered rabbinic law ( 31. Complaint, 31. 32. Fonrobert, 32. 74 74 affirma- which theyor that they and practices beliefs religious do not hold tively oppose.” binic law could in that context be considered sectarian be considered could in that context binic law for the following that a variety evidence reasons. We Jewish groups of have strong textual in the Dead Sea Scrolls such as represented and the Book and movements, carry-of prohibition the rabbinic texts, observed the of Jubilees preceding residence as one the house, tent, or an otherwise private ing objects out of only The were the of the Sabbath prohibitions. to devise the ones eruv rabbinic law in its historical context came to play a role in legal argumenta- a role to play context came law in its historical rabbinic I have argued intion: First, the of that the invention print texts—one that I hold by—is that the institution of the by—is that the institution of the texts—one that I hold rabbis as a mechanism to draw a distinction insiders between and outsiders, that are beyondbetween those that belong, and those the purview of the strictures of rabbinic law. Over the course of history, in that distinction general has taken valences, on various on historical circum- depending stances, and certainly at times rabbinic scholars did not look upon those 35947-ckt_90-1 Sheet No. 44 Side B 01/14/2015 15:25:42 B 01/14/2015 44 Side Sheet No. 35947-ckt_90-1 35947-ckt_90-1 Sheet No. 45 Side A 01/14/2015 15:25:42 available at 33 75 75 3 (April 4, 2013), is just one such strategy is just one to ) 1/5/2015) 9:31 AM RUV E ELETE eruv D OT N O (D ONCLUSION C DOCX ). PPOSED TO THE O presents us with a particular form of religious of particular form presents us with a 34 EOPLE P : eruv JEWISH LAW IN PUBLICURBAN SPACE eruv EWISH WITH SMALL CHANGES SMALL WITH ( note 1, at 46. note 1, the project a collective identity of defining is to define ] creates a kind of residential commune that, as in rabbinic that, as in rabbinic commune of residential a kind ] creates supra , especially in its contemporary urban implementation, is to do urban implementation, contemporary , especiallyits in eruv ONRORBERT eruv of course P03 - F Sinnreich is not the only one who simply equates the late ancient rab- Sinnreich is not the only The practice of However, the path from theHowever, the path from Jewish ancient past to the contemporary In some ways, this amounts to contesting in court that the Catholic in court to contesting amounts In some ways, this [The [I]t is a symbol that communicates a deliberately divisive and indeed ex- indeed divisive and a deliberately communicates that [I]t is a symbol larger Jewish within the at least as understood clusionary message, been insightful- has meaning and exclusionary This divisive community. Fonrobert. Elisheva Charlotte Professor by ly described days, excludes or distances non-Jews and co-resident Jews who are not not Jews who are and co-resident non-Jews or distances days, excludes its members. by understood rabbinic law as of observant or not believers lies, in part, at the heart of the bitterness of I propose that this exclusion Tenafly. in the dispute Church excludes Protestants (and non-Jews) from its sacraments. That is to say, boundaries between those who belong and those who do not, those who those who belong and those who boundaries between in those terms, and force those who do not. The special define themselves of the so by physicalinstalling what are perceived markers in the urban boundary identity. collective landscape, thus bygeographyunderwrite drawing on to Jews and orthodox with contemporary (modern) bis and their opponents H. Susan As an anthropologist, liberal Jews or non-Jews. and other Reform Lees does so as well.the She explains acrimony of the Tenafly dispute in the following way: Beach, J Westhampton 33. of People for the Betterment Behalf of Jewish Statement of Jonathan Sinnreich, Esq. on 2015] 2015] This the kindly. put it to grace, with generositypurview and their beyond identity define their groups that other religious with numerous rabbis share by of belonging. The of practices variety a draw a boundarybetween in this case, by and outsider, insider way a of for JPOE, The lawyer spatial practice. Sinnreich, seizedJonathan upon this exclusionary to underline the argument and anthropological historical mechanism of the claim to the public, or publicness, and for that reason has seemed to so to the public, claim 34. Lees, http://jpoewhb.com/uploads/PDF_Number_5.pdf. 34. scene in urban America is not a straight path, and clearly, exclusion in others is the same not simply of as self-distinction from exclusion as terms with respect to minorities. a political tool of majorities 35947-ckt_90-1 Sheet No. 45 Side A 01/14/2015 15:25:42 A 01/14/2015 45 Side Sheet No. 35947-ckt_90-1 35947-ckt_90-1 Sheet No. 45 Side B 01/14/2015 15:25:42 in- eruv eruv as a communal project. as a communal [Vol 90:1 90:1 [Vol really poses. We have seen ) 1/5/2015) 9:31 AM eruv ELETE eruv D installation is barely perceptible. barely perceptible. installation is OT N O (D eruv since, from the days of the Mishnah Mishnah the days of the since, from 35 DOCX ). CHICAGO-KENT LAW REVIEW CHICAGO-KENT LAW WITH SMALL CHANGES SMALL WITH ( note 18, at 3. If the proponents cannot adequately explain the importance of the of the explain the importance adequately proponents cannot note 18, at 3. If the ONRORBERT supra installation. P03 - F By way of conclusion, I wish to emphasize one aspect of the one aspect of I wish to emphasize By way of conclusion, eruv the suggestion that JPOE’s members should not be concerned or offended by the prospect of of the prospect by or offended concerned be not should JPOE’s members that the suggestion where they live and work, because the neighborhoods the creation of an eruv to demarcate is truly conde- what it symbolizes, not understand ‘won’t notice it’ or somehow they might to JPOE and its members. scending and offensive for themselves, they are for the failure of the to be blamed eruv onwards, rabbinic law does in fact requireonwards, rabbinic a urban en- manipulation of the minute as it vironment, may did not The fact that classical rabbinic law be. manipulation of the urban environ- conceive of any the conflict regarding ment as they con- contemporary conceived of it is telling with regard to the sages only in the ancient context, the rabbinic text. As pointed out above, of the entrance to a shared space because contain- considered manipulation pre-existed in the late ancient urban environment walls ing and contiguous the con- life. In daily with one’s considered an interference and were not gateways of symbolic has to signify context, the installation temporary that walls somewhere urban landscape, even if there are also symbolic in the of theya creek such as in the form and intangible, are entirely symbolic part of the boundary.that forms Nonetheless, the very fact that now an behalf of JPOE when he argues that: 35. In this regard, be given credenceI think, Sinnreich has to filed on in his federal complaint Complaint, 76 76 many involved Those jurisdiction. Amendment to First a challenge to pose above, as the one discussed controversies, in the recent of in terms argue by upon the whether calling and protection, strictures First Amendment Establishment Free Exercise Clause or the and Clause. Anthropologists on draw as myself, religion such as historians of as well ethnographers, built into controversy the potentialityexplanations to explain different for the that visibility plays a role, yet the a role, plays that visibility Outright denial of perceptibility, the help either with Outright denial however, does not recent disputes, resolution of the installation takes the form of inscriptions on maps, readily accessible readily on maps, installation takes the form of inscriptions accessible online, clearly provides conceptual fodder for the perception that the Jew- Drawing to a geographical area of a town. ish community is laying claim maps of urban areas based identity of and practice is on religious a form laying claim to public space, however that symbolic fact that be. The may totallyno one can see the plastic strips becomes insignificant in light of that. stallation that escapes anystallation that escapes that it really poses; grasp of the challenge firm that is what to kind of claim the public the 35947-ckt_90-1 Sheet No. 45 Side B 01/14/2015 15:25:42 B 01/14/2015 45 Side Sheet No. 35947-ckt_90-1 35947-ckt_90-1 Sheet No. 46 Side A 01/14/2015 15:25:42 imposes a layer of layer a of imposes , in spite of all the , in spite 77 77 eruv eruv ) 1/5/2015) 9:31 AM ELETE D OT N O is what in negotiation public requires (D , and thus include the form of public that of form the , and thus include eruv DOCX ). eruvin JEWISH LAW IN PUBLICURBAN SPACE may include a church parish, as it most certainly does WITH SMALL CHANGES SMALL WITH ( eruv adds a dimension rather than shielding or suppressing an- or suppressing rather than shielding adds a dimension eruv ONRORBERT P03 - F The symbolic nature of the of the nature symbolic The the parish establishes. It may include the White House or the European It maythe parish establishes. the White House or the include In such of public imaginable. public form most the Parliament and thus cases, the that require forms of isomorphism other. It defies all an equation between collective identity and physical And it environment. is this dimension that potential. full out its has yet to play meaning onto an urban map that is physical anchored onto an urban meaning in the minimally of public— As a layerurban landscape. form it creates a new of meaning, one that the urban makes of ancientlegible in terms environment Jewish of public to waylaw, but in such a other forms it would allow for any that be part of it. An urban in the case of larger 2015] 2015] anxiety it has created in the recent conflicts: the the recent conflicts: has created in anxiety it order to explain such maps. And here I want to conclude with what I still to conclude with want here I And such maps. explain order to the of subversive nature radical and the consider 35947-ckt_90-1 Sheet No. 46 Side A 01/14/2015 15:25:42 A 01/14/2015 46 Side Sheet No. 35947-ckt_90-1 35947-ckt_90-1 Sheet No. 46 Side B 01/14/2015 15:25:42 35947-ckt_90-1 Sheet No. 46 Side B 01/14/2015 15:25:42 B 01/14/2015 46 Side Sheet No. 35947-ckt_90-1