The "reasonable observer," lynchpin of legal decisions that allow an eruv Orthodox Jewish boundary, is a concept from 1971. Supreme Court Justice Sandra O'Connor gavethe modern definition.

O'Connor, the first woman on the Court who retired in 2006 after serving from 1981, gave a new definition of "reasonable observer" in a 1995 decision on refusal of a state agency to allow a cross of the Klu Klux Klan on a park across from the Ohio state capitol.

“O’Connor”O'Connor

O'Connor, as quoted by UCLA Law Prof. Alexandra Susman in her 35-page treatise on eruvim, said a reasonable observer is one "more informed than the casual passerby."

Susman says that "how the reasonable observer is defined may determine whether a court would find an eruv a constitutional or unconstitutional endorsement of religion. It is quite clear that Justice O'Connor's view has prevailed…that is, O'Connor's reasonable observer assumes knowledge of both the government act and the religious significance of the act."

The "reasonable observer" of 1971 is cited in two court decisions—the 2002 Appeals Court decision on the Tenafly eruv and the Jan. 6, 2015 Appeals Court decision upholding the Westhampton Beach eruv.

Both decisions are hanging on a peg that is not only loose, but that has fallen from the wall.

Both decisions also reference a "casual" observer.

There are few if any "casual" observers left in the Hamptons about the subject of eruvim which has raged as a topic since 2008 and has cost WHB, Southampton, Quogue and Jewish People Opposed to the Eruv more than $1 million in legal fees plus uncounted hours of their own employees.

The towns remain under threat of millions in penalties, fines and costs not to mention its citizens being labeled as anti-Semitic and "bigoted" by the New York Post and other media.

O'Connor's "reasonable observer" is "a hypothetical observer who is presumed to possess a certain level of information that all citizens might not share."

Writes Susman: "Applying this standard, a reasonable observer, acquainted with the religious significance of an eruv, its conversion of the public space into private religious domain, and the government proclamation leasing land to the Orthodox Jewish community, would find a government endorsement of the eruv."

Claims of Numerous Eruvim Dismissed

Susman attacks the argument often made by eruvim supporters and in legal documents that there are hundreds of such boundaries in the U.S. and therefore they must be legal.

She calls that a "tautological argument" that ignores the failure of many courts and local governments to "seriously consider the Establishment [of religion] Clause or the Free Exercise clause of the Constitution."

She adds: "Since an eruv's many implications have not been considered by the courts, and a thorough evaluation of an eruv in relation to the Establishment Clause and the Free Exercise Clause has not been developed, Orthodox Jewish communities who seek an eruv, the people who oppose them, and city councils and other legislative bodies that make the ultimate decision in regard to them, lack a constitutional framework in which they can decide the issue."

WHB Town Meeting Postponed by Snow

The WHB board of trustees was to meet last night but the meeting was cancelled after seven inches of snow fell in the area.

It has been rescheduled for March 18 which is 12 days away. Critics wondered about such a delay when there are many questions about the status of the lawsuits against the village on the eruv matter. The eruv litigation was not among 27 items on the agenda for last night's meeting.

The board held a private "work meeting" on March 5 to discuss the eruv litigation but released no details of the session.