On January 6, 2015, the Second Circuit issued a decision in Jewish People for the Betterment of Westhampton Beach v. Village of Westhampton Beach, 14-1441, affirming a decision by the EDNY dismissing plaintiffs’ claims that various utilities violated the Establishment Clause by agreeing to allow Jewish groups to attach “inconspicuous strips” to utility poles to “delineate an ‘eruv,’ which is significant to some as a matter of Jewish law.” See our earlier posts on EDNY decisions on the eruv controvery here and here.
The Second Circuit affirmed the EDNY’s dismissal of the plaintiffs’ claims. The court held that two of the defendants–Verizon New York, Inc., and the East End Eruv Association, Inc.–were not state actors. The court agreed with the plaintiffs that the third defendant, Long Island electrical supplier LIPA, was a state actor. However, it held that LIPA had not violated the Establishment clause by permitting its poles to be used to create an eruv, explaining:
Although “much criticized,” the Lemon test still governs cases alleging violations of the Establishment Clause. Under Lemon, for government action to satisfy the neutrality principle of the Establishment Clause, it must (1) have a secular purpose, (2) have a principal or primary effect that neither advances nor inhibits religion, and (3) not foster an excessive government entanglement with religion.
An eruv is a demarcation of a defined geographic area within which adherents subscribing to a certain interpretation of Jewish law believe that they may perform certain activities that are otherwise prohibited on the Jewish Sabbath and Yom Kippur. It is undisputed that the Westhampton eruv was delineated by nearly invisible staves and wires attached to utility poles. Plaintiffs do not allege that these staves contain any overtly religious features that would distinguish them to a casual observer as any different from strips of material that might be attached to utility poles for secular purposes.
Plaintiffs have not plausibly pleaded that there was no secular purpose to the governmental action here–LIPA’s entry into a paid licensing agreement allowing the installation of items of religious significance on utility poles. While plaintiffs repeatedly state in their complaint that the establishment of an eruv serves no secular purpose, the complaint does not contain similar allegations with regard to LIPA’s action of permitting the EEEA to attach lechis to its utility poles, and does not allege that LIPA granted access to its utility poles in a non-neutral manner. Neutral accommodation of religious practice qualifies as a secular purpose under Lemon. And other courts have held that absent evidence that the erection of an eruv is facilitated in a non-neutral manner, permitting an organization to attach lechis to utility poles serves the secular purpose of accommodation.
In religious display cases, Lemon’s second consideration collapses into the question whether a reasonable observer of the display in its particular context would perceive a message of governmental endorsement or sponsorship of religion. No reasonable observer who notices the strips on LIPA utility poles would draw the conclusion that a state actor is thereby endorsing religion, even assuming that a reasonable observer was aware that a state actor (LIPA) was the entity that contracted with a private party to lease the space.
Finally, it is undisputed that private parties will finance, install, and maintain the strips; so there is no risk of excessive government entanglement with religion.
(Internal citations and quotations omitted).