Eruvin, the symbolic boundaries erected by some Orthodox Jewish communities, are unconstitutional, says Prof. Marci Hamilton of the Benjamin N. Cardozo Law School, Yeshiva University, New York.

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Hamilton has been retained on First Amendment issues by Quogue which was sued by the East End Eruv Assn. after Quogue refused to allow construction of an eruv using utility poles.

She was sent by this website an article in the Feb. 12 forward.com in which Prof. Michael Helfand of the Pepperdine Law School argues that eruvim are constitutional and not a “symbol of impermissible government entanglement with religion.”

Forward.com yesterday posted an article on the battle over eruvim in the Hamptons that has cost Westhampton Beach, Southampton, Quogue and Jewish People Opposed to the Eruv more than $1 million in fees to their law firms so far since they oppose such religious boundaries. This is a welcome article since it shines light on a planned eruv in WHB and undercuts the argument that citizens are not aware of the "almost invisible" eruv markings and don't know what they mean. They mean that public land has become the "private domain" of believers, a violation of church/state separation.

Hamilton said she agrees with Helfand that lechis are “symbols” but they are “symbols with religious content.” Helfand contends that an “eruv stands as a symbol of pluralism, rejecting the impulse to lock our beliefs and identities in a closet—and encouraging us to invite our society’s diversity into the public square for all to celebrate.”

Hamilton says information is transmitted through symbols and that Helfand’s admitting that lechis are symbols “undermines” his argument. Eruvim are highly informative to believer, she says. Lechis cannot be treated “as though they have no content,” she says.

Both Hamilton and Helfand have ties to Yeshiva University, founded in 1886, the oldest institution of higher learning in the U.S. that combines Jewish scholarship with many other studies including those in the Cardozo Law School. It describes itself as an institution of “modern Orthodox Judiasm.” Undergrads number 6,400 and graduate students, 3,500. It is named after the Supreme Court Justice who was appointed in 1932 by President Herbert Hoover to succeed Oliver Wendell Holmes.

Cardozo, according to Wikipedia,yeshiva was “renowned for his integrity, social consciousness and important opinions. In six years on the court he “handed down opinions that stressed the necessity of law to adapt to the realities and needs of modern life,” according to WP. One of his “acclaimed” off-the-bench writings was “The Nature of the Judicial Process.”

Helfand a Yeshiva Grad, Hamilton a Yeshiva Prof

Helfand is a 2002 grad of Yeshiva who received a J.D. from Yale University in 2007 and a Ph.D. from Yale in 2009. He joined the Pepperdine Law faculty in 2010 where he teaches contracts, arbitration law and seminars in Law and Religion and Multiculturalism and the Law.

Hamilton, whose bio describes her as “one of the United States’ leading church/state scholars” and who holds the Paul R. Verkuil Chair in Public Law at Cardozo Law, received a B.A. from Vanderbilt University in 1979; an M.A. in 1984 from Pennsylvania State University and a J.D. from the University of Pennsylvania in 1988.

god v gavelShe authored in 2014 God vs. the Gavel: The Perils of Extreme Religious Liberty.

Topics include clergy sex abuse, polygamy, children dying from faith healing, companies that refuse to do business with same-sex couples, and residential neighborhoods forced to host homeless shelters.

She says they are examples of religious believers harming others and demanding religious liberty regardless of the harm. The new set of rights is not derived from the First Amendment, she says, and argues for a return to common-sense religious liberty. All Americans need to read this book, she says, “before they or their friends and family are harmed by religious believers exercising their newfound rights.”

Circumsized Babies Victims

An example of what Hamilton is talking about is the Orthodox practice of having the person performing a circumcision suck the blood off the penis. This practice has resulted in 17 babies being infected with herpes since 2000, two of them dying, and two others suffering brain damage, according to the NYC Health Dept.

The political power of the Orthodox community was shown in its ability to force Mayor Bill de Blasio to back away from his bid to stop this practice, reported the Feb. 25 New York Times.

Rabbi David Zweibel sued NYC when it passed a rule requiring Jewish parents to sign a consent decree before allowing it The decree was “profoundly offensive” to Zweibel’s Orthodox group, the rabbi said.

Capital New York quoted infectious disease specialist Dr. Jonathan Zenilman of Johns Hopkins Medical School as saying, “This is an embarrassing political capitulation.”

The New York Post, a supporter of eruvim in the Hamptons, hailed de Blasio’s retreat as “a huge victory for religious freedom.”

Hamilton Statement on Helfand

Following is the complete statement of Hamilton on First Amendment issues involved in eruvim.

“I represent Quogue in the case on the First Amendment issues.

“Speaking as a First Amendment scholar, responding to that argument: I agree with Prof. Helfand that the lechis are symbols. And they are symbols with religious content. Therefore, when the government posts them, it is endorsing a particular religious entity's religious viewpoint.

“That is unconstitutional. The only way to avoid the conclusion that there is a violation of the Establishment Clause is by ignoring the obvious symbolic content of the lechis and treating them as though they have no content.

“Such a conclusion requires the rejection of longstanding linguistic theories on how information is transmitted through symbols and the rejection of the Supreme Court's doctrine under the First Amendment that provides protection for "symbolic speech," e.g., things that carry messages, like draft cards that are burned for political communication in O'Brien.

“Lechis carry as much communication, and for a longer period of time, as do those draft cards, and for that reason, Prof. Helfand's argument undermines the argument in favor of the eruv.

From Wikipedia:

United States v. O'Brien, 391 U.S. 367 (1968), was a decision by the Supreme Court of the United States, which ruled that a criminal prohibition against burning a draft card did not violate the First Amendment's guarantee of free speech. Though the Court recognized that O'Brien's conduct was expressive as a protest against the Vietnam War, it considered the law justified by a significant government interest unrelated to the suppression of speech and was tailored towards that end.

O'Brien upheld the government's power to prosecute what was becoming a pervasive method of anti-war protest. Its greater legacy, however, was its application of a new constitutional standard. The test articulated in O'Brien has been subsequently used by the Court to analyze whether laws that have the effect of regulating speech, though are ostensibly neutral towards the content of that speech, violate the First Amendment. Though the O'Brien test has rarely invalidated laws that the Court has found to be "content neutral", it has given those engaging in expressive conduct — from wearing of black armbands to burning of flags—an additional tool to invoke against prohibitions.