By Judah A. Druck
What is a “domain”? As an insurance coverage attorney often tasked with interpreting individual policy terms, I would answer by looking at the usual suspects: the dictionary (“a region distinctly marked by some physical feature”); case law (“‘Domain’ is ordinarily understood to refer to ‘region’ or ‘area.’”)1; or simply common usage (a clearly demarcated territory).
For hundreds of thousands of Orthodox Jews, the question is not merely one of semantics, but of tangible religious practice. That’s because every Sabbath—Saturday, the seventh day of rest—Jews are prohibited from performing “work,” a term interpreted over thousands of years to encompass activities like gardening, cooking, and using electronic devices. One additional prohibition forbids Jews from carrying an object between a “private domain” and a “public domain,” such as from a house to a sidewalk. As a result, those observing the Sabbath are prohibited from carrying their house keys, pushing a baby stroller, or even using a walking cane outside of the home.
(Photo caption: Your author’s best attempt at capturing the Saint Louis Park eruv on an iPhone. The lechi is clearly visible running vertically along the tree, with the eruv wire itself hanging slightly above.)
Given the significant difficulty of observing the Sabbath with such restrictions, rabbinic decisors introduced the eruv, a wire that encompasses a large area in order to create a symbolic “private domain.” Thus, Jews can treat Manhattan as a “private domain” for purposes of carrying on the Sabbath because of an eruv wire circling the entire island. Closer to home and somewhat more modestly, the Saint Louis Park eruv spans approximately one square mile, servicing four different synagogues and their nearby members.
What is this odd tradition? How does it work? And given that the wire often encroaches upon public land and requires government approval, how can the eruv function without violating the First Amendment? This article explores and answers these questions, including the ways in which the eruv has been litigated and how it might impact Minnesota’s own eruvim.
The prohibition of carrying
“Remember the Sabbath day and keep it holy. Six days you shall labor and do all your work, but the seventh day is a Sabbath of the Lord your God: you shall do no work.” Thus begins the fourth of the Ten Commandments given to Moses at Mount Sinai, referring to the prohibition against melacha (work) on the Sabbath. Subsequent rabbinic commentaries in the Talmud and elsewhere have defined “work” to encompass 39 categories of conduct that correspond with the 39 types of work performed in the desert following the exodus from Egypt. These categories include, inter alia, field work (e.g., plowing); garment crafting (e.g., weaving); and writing/erasing.
Thousands of years of additional commentary have shaped how these 39 melachot affect observance of the Sabbath today. For example, the prohibition against igniting a fire is why observant Jews do not use electronics on the Sabbath, including phones, computers, or even light switches. The prohibition against cooking is why Jews do not cook, bake, or boil water on the Sabbath. The prohibition against separating wanted and unwanted items is why gefilte fish became a stereotypical Sabbath dish, as it contains no bones that one may not permissibly pull out (thereby “separating”). And so on.
One of the most impactful of the melachot is the prohibition against carrying from one domain to another (hotza’ah). Based on the biblical prohibition against collecting manna on the Sabbath (per Exodus 16:29), hotza’ah prohibits the transferring of an object from a private domain (such as a home) to a public domain (such as a street or courtyard) and vice versa. While the specifics of what constitutes a “public” and “private” domain (or even what “carrying” entails) are subject to numerous discussions, hotza’ah ultimately means that Jews observing the Sabbath today are prohibited from such basic acts as carrying items in their pockets to synagogue, pushing strollers and wheelchairs, and even carrying an infant. Thankfully, worn items of clothing are not considered “carrying” for purposes of hotza’ah.
Enter the eruv
Early rabbinic commentators recognized the significant impact hotza’ah would have on Sabbath observance. The response was to create the eruv, which is short for “eruv chatzeirot,” literally meaning “merger of domains.” The specifics of an eruv are incredibly complex, so much so that an entire tractate of the Talmud is dedicated to the subject. At its most basic, the modern eruv is a continuous piece of wire connected to poles that encompass a piece of territory, thereby creating “walls” around the area. A strip called a lechi is additionally affixed to the structures holding the eruv wire, thereby representing “doorposts.” Minnesota’s first eruv, completed in 1990 through communal efforts, spans the Fern Hill neighborhood of Saint Louis Park, while a second eruv was subsequently erected in St. Paul.2
Construction of an eruv necessarily includes overlap with civil government, for at least two reasons. First, the eruv wires are often placed on already existing utility poles and other public property (such as a tree in a park), thereby requiring permission from the local government for their use. Second, by Jewish law, construction of an eruv requires a formal lease from the local government (or governments, depending on the jurisdictions encompassed by the eruv) in order to convert what was previously a “public domain” into a “private” one. Such leases are largely ceremonial: The lease agreement with the City of Saint Louis Park for its eruv, for example, included payment of $1.
Because the eruv is subject to innumerable technicalities and prerequisites, its installation takes months of planning and often requires the hiring of rabbinic specialists. There are also more fundamental challenges: Because a downed tree branch or strong wind gust can break the eruv, weekly inspections are required, and repairs must be implemented immediately lest the eruv be unavailable come Saturday. This, in turn, raises the pecuniary element of an eruv. Between repairs, the hiring of contractors and inspectors, and the need to procure liability insurance,3 maintenance of the eruv can cost tens of thousands of dollars a year. Nevertheless, the existence of an eruv serves as a major boon for the Jewish community, and its existence is often one of the most basic questions an observant Jew will ask about before moving to a new area. (Because it also makes houses inside its boundaries more desirable, an eruv often has the added effect of increasing property values, colloquially known by prospective buyers as an “eruv tax”).
If you read my previous article on kosher food (“What is Kosher? From Moses to Minnesota,” Bench & Bar, December 2021), you would know that there is no such thing as a unified “Jewish view” on anything, and the eruv is no different. Many Jews do not accept—or “hold by”—an eruv at all, with varying bases offered. For some, the confinement of Jews into specific geographic territories evokes memories of the ghettos of pre-war Europe, whose liquidation by the Nazis causes some today to reject all notions of territorial demarcation. Others worry that the numerous possibilities of damage to the eruv, even assuming its proper construction, may lead one to inadvertently violate the Sabbath by carrying at a time that the eruv is down. Still others simply reject the notion that one can create a “private domain” containing thousands or even millions of people. These debates often spill over beyond the realm of philosophy: In 2016, for example, a new eruv in Brooklyn was vandalized because of theological objections.4
The eruv is litigated
Intra-religious fighting is not the only forum for eruv controversy, however. Rather, both state and federal courts have faced questions over the existence of the eruv and its potential First Amendment implications. While this article will focus on the legal analyses within these lawsuits, it bears noting at the outset that eruv challenges are typically based on antisemitic attempts at preventing Jews from moving into certain neighborhoods—or, in the case of lawsuits brought by Jews themselves, preventing the “wrong kind” of Jews from moving in. (Jon Stewart’s The Daily Show brought light to these beliefs in 2011 to great effect, including an interview with an anti-eruv activist arguing that the near-invisible wire would affect “the look of this town.”)5 Thus, litigation over the eruv carries not only constitutional significance, but is often at the forefront of the fight against religious bigotry.
The eruv on the defensive
One of the first legal challenges to an eruv occurred in 1987, when the ACLU of New Jersey sued the City of Long Branch in federal court on First Amendment grounds.6 The eruv at issue was built using preexisting utility poles, telephone poles, and fences, but also used two additional poles erected on public property—notably, all at the expense of the supporting congregation. The ACLU argued that this public use violated the establishment clause (which prohibits any law “respecting an establishment of religion”) because the eruv “constitutes the placement of ‘permanent symbols’ of the Jewish religion on public property.”
District Judge (now Senior District Judge) Anne E. Thompson disagreed. Applying the now-abandoned Lemon test,7 the court considered whether the city’s action (permitting the use of public land for the eruv) (1) had a secular purpose, (2) had a “princip[al] effect which does not advance religion,” and (3) did not foster “excessive entanglement with religion.” All three were answered in the affirmative. As to the first analysis, Judge Thompson explained that the city’s secular purpose was simply to “allow a large group of citizens to access public properties.” Critically, the court further explained that the eruv itself did not carry any religious significance: “They are not objects of worship nor do they play any theological role in the observance of the Sabbath…. [I]t merely allows observant Jews to engage in secular activities on the Sabbath.” Instead, the eruv constituted “an almost invisible boundary” that constitutionally provided “equal access to public facilities to people of all religions,” none of which “impose[d] any religion on the other residents of Long Branch.”
As to the second prong, the court similarly held that the city’s action did not advance a specific religion for the same reasons as before: The eruv “does not impose the Jewish religion on other residents of Long Branch, it merely accommodates the religious practices of those residents who are observant Jews.” And finally, as to the third Lemon analysis, the court found that there was no government “entanglement” with religion because the city’s role in the eruv process was limited to assuring that “the items are being maintained correctly.” All work, maintenance, and insuring of the eruv, on the other hand, were done at the congregation’s expense. “In fact, in the future it would appear that contact between the Congregation and the city regarding the eruv would be minimal.” Taken together, the court concluded that there was no First Amendment violation.
The eruv on the offensive
Disputes over the eruv erupted again in the 2000s, this time with the roles reversed. Litigation was brought by proponents of an eruv challenging governmental actions seeking to preemptively prevent its construction. Numerous cases were filed in state and federal court, filled with added rancor. The case of Tenafly Eruv Association, Inc. v. The Borough of Tenafly is illustrative.8 There, a group of Orthodox Jews sought permission from the Borough of Tenafly, New Jersey, to construct an eruv (as required by Jewish law, discussed earlier). The first meeting held by the Borough Council to discuss the request, where residents in attendance “expressed vehement objections prompted by their fear that an eruv would encourage Orthodox Jews to move to Tenafly,” set the tone for the dispute. The council members were no better, noting “a concern that the Orthodoxy would take over,” and that Jews “might stone cars that drive down the streets on the Sabbath.” Ultimately, and after months of debate and back-and-forths, the council belatedly relied on a city ordinance that prohibited the placement of “any sign or advertisement, or other matter upon any pole, tree… or elsewhere, in any public street of public place” as justification for its opposition to the eruv.
Supporters of the eruv soon brought suit, again in the Federal District of New Jersey, pursuant to the First Amendment’s free speech clause (prohibiting any law “abridging the freedom of speech”) and free exercise clause (prohibiting any law “prohibiting the free exercise” of religion). But the district court dismissed both theories. While recognizing that the council meetings included “statements that undeniably reflected the biases and prejudices of those who made them,” the court nevertheless found that “many of those comments reflected legitimate concerns about the propriety of committing public property permanently for a religious purpose, and the apparent entanglement with religion that might result.” Thus, according to the court, the city’s decision to ban an eruv was based on a “reasonable, neutral access restriction of general applicability.”
The Third Circuit reversed. After affirming the dismissal of the plaintiffs’ free speech claim—finding that the affixing of lechis to poles was not “expressive conduct” because 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”—the panel turned to the free exercise clause, and specifically to the issue of selective enforcement. While agreeing that the subject ordinance was “neutral and generally applicable,” the court cited the record to demonstrate that the borough had not uniformly enforced it, including by “granting exemptions from the ordinance’s unyielding language for various secular and religious—though never Orthodox Jewish—purposes.” These exemptions included allowing the placement of holiday displays, church directional signs, and ribbons in support of the local high school.
The court did not view the eruv any differently. To the contrary, “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.” And while both the council and the district court relied on the “permanent” nature of the eruv, the Third Circuit explained that items permitted by the Council such as “house numbers nailed to utility poles” were equally permanent yet still permitted. Here, the eruv supporters were “not asking for preferential treatment,” but rather “only that the Borough not invoke an ordinance from which others are effectively exempt.” Thus, the court held that “the Borough’s selective, discretionary application of Ordinance 691 against the lechis violates the neutrality principle” set forth in the Supreme Court’s First Amendment jurisprudence.
Subsequent efforts to restrict eruvim have failed on similar constitutional grounds,9 though this has not stopped opponents from continuing to try: In 2017, three municipalities near Tenafly attempted to stop construction of eruvim based on similar ordinances, which not only prompted lawsuits by eruv associations but caused the attorney general of New Jersey to file a civil suit to prevent “unlawful discrimination.”10 A negotiated settlement was ultimately reached in 2018, which allowed the eruv to proceed and further required a $10,000 payment to plaintiffs’ attorneys.11
Lest there be any doubt, the many concerns raised by eruv opponents have not come to fruition. Tenafly, a suburb of New York City (and adjacent to your author’s hometown), has seen its population and economic health grow. And if you drive through Saint Louis Park on a Saturday, the only thing that may be thrown at you is a wave. Instead, the eruv represents little more than an invisible but deeply important means of allowing observant Jews to enjoy their Sabbath like anyone else. And to Minnesota’s credit, the creation of its eruvim was openly supported by public and private individuals alike—and certainly did not require acrimonious litigation. As one New York state judge denying a request to enjoin the creation of an eruv said, “by their very nature religious institutions are beneficial to the public welfare.”12 Thankfully, Minnesota appears to be a state that agrees.
JUDAH DRUCK is a litigation attorney at Maslon LLP in Minneapolis. He represents corporate and individual policyholders in insurance coverage and complex business disputes, including recent cases involving coverage for covid-19 losses. He also maintains a robust commercial litigation practice spanning multiple industries and forums.
1 Chiron Corp. v. Genentech, Inc., 266 F. Supp. 2d 1172, 1199 (E.D. Cal. 2002).
2 Special thanks to Allan Baumgarten, one of the founders of the Saint Louis Park eruv, for taking the time to discuss the history and intricacies of its construction.
3 The need for insurance was illustrated in Egar v. Congregation Talmud Torah, 885 N.Y.S.2d 711 (N.Y. Sup. Ct. 4/16/2009), where the plaintiff alleged that a downed eruv wire caused her to trip and fall.
6 Am. Civil Liberties Union of New Jersey v. City of Long Branch, 670 F. Supp. 1293 (D.N.J. 1987).
7 Lemon v. Kurtzman, 403 U.S. 602 (1971), overruled by Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407 (2022).
8 Tenafly Eruv Ass’n, Inc. v. Borough of Tenafly, 309 F.3d 144 (3d Cir. 2002). Much thanks to Bob Sugarman, retired partner at Weil, Gotshal & Manges LLP and former lead counsel for plaintiffs, for taking the time to discuss this litigation with me.
9 E.g., Jewish People for the Betterment of Westhampton Beach v. Vill. of Westhampton Beach, 778 F.3d 390 (2d Cir. 2015) (affirming dismissal of complaint brought by eruv opponents and finding that “[e]very court to have considered whether similar government actions violate the Establishment Clause has agreed that they do not.”).
12 Smith v. Cmty. Bd. No. 14, 128 Misc. 2d 944, 491 N.Y.S.2d 584 (Sup. Ct. 1985).