                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             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Precedential or Non-Precedential: Precedential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 "Ultra-
Orthodox" 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 "non-
housing 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 & Johnson-
Merck 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., LeBlanc-
Sternberg 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 federal-
court 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, objectively-
defined 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 religion-
neutral 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 religion-
neutral. 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 one-
sentence 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 three-
prong 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-foot-
tall 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 non-
neutral 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
