[MUSIC PLAYING]

[DESCRIPTION] Touro Talks intro displaying photos of students and faculty across the university, fading into the Touro University logo.

[TEXT] Securing Religious Freedom: The Eruv Litigations: Robert G. Sugarman, Esq. & Yehudah L. Buchweitz, Esq., March 9, 2022, Tour Talks is sponsored by Robert and Arlene Rosenberg

[DESCRIPTION] Sam Levine speaks to the camera from an office setting, with a Touro University logo on the bottom right of the screen.

[SAM LEVINE] It's an honor and a pleasure for me to welcome the audience this evening and to welcome tonight's distinguished presenters. Bob Sugarman is a retired partner at the global law firm Weil, Gotshal, where Bob served as part of the litigation group based here in New York City. Bob focused at Weil, Gotshal on intellectual property and First Amendment matters.

In addition, as many of you know, Bob Sugarman has served as a leader in various organizations within the Jewish community, including serving as chair of the Anti-Defamation League and as chair of the Conference of Presidents of major American Jewish organizations. Bob is a graduate of Yale College and Yale Law School. Bob will be joined this evening by Yehudah Buchweitz. Yehudah, also a partner at the global law firm Weil, Gotshal, also based here in New York City, is an expert commercial litigator and really has distinguished himself over the years as one of the top litigators in New York.

Yehudah graduated from Fordham University School of Law and from Brandeis University. And this evening, we will hear from Bob and Yehudah, speaking about their pioneering work in securing religious liberties, in particular their work on several landmark eruv cases. So without any further ado, I'd like to turn things over to Bob Sugarman.

[DESCRIPTION] Bob Sugarman joins, and shares his screen with a presentation to accompany his spoken words.

[BOB SUGARMAN] Thank you, Sam. Thank you, Nahum for suggesting this in the first instance, and thank you, Yehudah, for all his efforts, which I'll talk a little bit about later. I don't want to embarrass him, but I will.

So with apologies to those of you listening who know about Eruvin, let me just start by saying, why an eruv? What is an eruv? And it starts 2,000 years ago, and the situation is that observant Jews cannot carry or push objects outside their houses, their homes on Shabbat and Yom Kippur. And that was a problem, and the rabbis, 2,000 years ago, established the convention to solve the problem. And that was the eruv, and indeed, there is a tractate in the Talmud devoted to a ravine.

An eruv is constructed mainly using overhead wires. You see the overhead wire in this photo here, sometimes, natural boundaries and lechis, OK? This is a lechi. It is a wire, a rubber housing. It could be wood, and it goes up the utility poles and somewhat joins the overhead wire to create a doorway.

It's absolutely necessary for there to be an eruv. You also need a proclamation from a public official who has jurisdiction over the area that you want to encompass, and that public official "rents" the area to the Eruv Association for a nominal fee. And that is absolutely necessary.

Usually, the establishment of a Eruvin is uneventful. There are Eruvin all over the country, including Washington, DC. And the Washington, DC, eruv of encompasses the capital, the Supreme Court. And, as I say, usually, there is no controversy in terms of establishing an eruv.

However, there have been five litigations, the first that we know of in Belle Harbor, Queens, then one in Long Branch, New Jersey, then Tenafly, then the Hamptons, and the last that we know of, Montvale, Mahwah, and Upper Saddle River. While his first involvement was in Tenafly, and at that time, I think we can take this down or-- good. One of our corporate associates lived in Tenafly, and she came to the pro bono people at the firm and asked whether we would represent the Tenafly association in what likely was going to be a litigation.

I was asked two questions. One, should Weil do it, and two, would you do it? And I answered yes to both of those, and that was the start of our involvement. This was in December of 2000. At that point, the eruv in Tenafly was up.

The Eruv Association had secured a proclamation from the Bergen County supervisor. The overhead wires set the boundaries, and the Eruv Association made an agreement with Verizon, using Verizon standard form eruv agreement, which is an indication of how common this all was, to arrange to put up the lechis. Cablevision volunteered to actually do it, and the eruv in Tenafly was completed in September of 2000.

And there were no problems, until it was realized that two houses in Tenafly were not in the eruv. And in order to remedy that situation, it was decided that they would string a wire through the Nature Center without permission. That did not sit well with the people in Tenafly, and as a result of that, the Borough council decided that the Eruv Association had to make application to allow the lechis to stay up. And that application was filed.

There were two public meetings, one, late November, one December 12, while it was retained somewhere just before the December 12 meeting, which I attended. There were many supporters. There were many opponents, and the district court judge, in his opinion, quoted some of the comments that were made at these two meetings, and I will read some of them. And Yehudah's going to read or show some of the comments that emanated from the Hamptons cases.

But one person said, "In a small, diverse town such as Tenafly, an eruv's artificial contrivance to get around Orthodox Judaic religious laws would set a terrible precedent." Another described the attempt "hostile takeover." Another said, "Residents like the town the way it is and did not want to visit the change wrought by eruv."

We faced that in the Hamptons. It's code for we don't want any more Orthodox Jews in our town. And then one said, "If they wanted to, they could live in a town that had decided to accommodate them, as opposed to forcing accommodation on Tenafly."

As I say, I attended the December 12 meeting, and those kinds of comments continued. I felt, at the time, that, if I closed my eyes and substituted Blacks for Jews, I would be in Selma, Alabama, in the '60s. It was that unfortunate.

At the end of the council meeting, the council voted 5-0 to deny the application to leave the lechis up, and among the five votes was the mayor of Tenafly, who, until the November 28 meeting, was a supporter of the eruv. She, obviously, caved to the political reality and voted no. The next day, the Borough wrote a letter to Cablevision, demanding that they take the lechis down as soon as possible. That was December 13.

We were in court, in New Jersey, the morning of December 15 to apply for a temporary restraining order, which was granted. So the eruv stayed up, and the eruv of stayed up, fortunately, throughout the litigation and remains up to this day. We then drafted a complaint.

Our main argument was then, and always was, that the Boroughs actions violated the plaintiff's rights under the First Amendment. And the First Amendment, as you see, states two things, "Congress shall make no law respecting an establishment of religion, which is known as the Establishment Clause, or prohibiting the free exercise thereof, the Free Exercise Clause." And that was going to form and did form a significant part of our complaint.

There was a suggestion made by a very well known and experienced lawyer that we should include in the complaint, a claim that the lechis were symbolic speech and therefore violated the Free Speech Clause of the First Amendment. I frankly did not see the validity of that argument, but I didn't see any reason not to include it. And, so we did.

Discovery ensued, and there was a preliminary injunction hearing in April and May of 2001. Again, the main argument was the free exercise argument. The Borough relied on Ordinance 691, which prohibited the placement of anything on the poles, and the response that we made to that was it never enforced, or it was selectively enforced.

And, so we were able to establish that there had been, on the polls, undisturbed house number signs, lost animal signs, orange ribbons, and a long controversy over school regionalization, the annual Chamber of Commerce holiday displays, including red ribbons, wreaths, and holiday lights, and in the right of way, not on the polls, but in the Boroughs right of way, church directional signs bearing crosses. The district court judge rejected both the free speech and free exercise arguments, never even addressing the selective enforcement argument. Thus, he dissolved the TRO and refused to give us a stay of his order, so that we could go to the Court of Appeals in the Third Circuit to appeal.

He did, fortunately, temporarily stay his order, so that we could go to the Court of Appeals and ask the court to stay the order, which we did. And, fortunately, the Court of Appeals, indeed, granted the motion and stayed his order, and the eruv remained up. The Court of Appeals rejected the free speech argument, but relying on our selective enforcement argument, reversed the district court judge.

And what you see here is a quote from the Third Circuit opinion. The inside quotes are references to Supreme Court precedent. But what they said was, "The Borough's selective discretionary application of Ordinance 691 devalues Orthodox Jewish reasons for posting items on utility poles by judging them to be of lesser import than non-religious reasons, and thus singles out the plaintiffs' religiously motivated conduct for discriminatory treatment."

We then went back to the district court, and with the assistance of one of the magistrate judges, who is now a district court judge, we arrived at a settlement with the Borough, which guarantees, in effect, that the eruv will stay up for as long as the proclamation is in place. And indeed, it's got to be renewed in about five, six years. And in addition to that, the settlement included the payment by the Borough of $325,000.

At that point, or some months later, I got a call from Rabbi Marc Schneier of the Hampton Synagogue, who said, "Your reputation precedes you. We're having a problem in the Hamptons. Would you and your firm represent us in that situation?"

I said, "We would." And in one of the smartest moves of my legal career, I enticed, convinced Yehudah Buchweitz to join me in the Hamptons cases, and he really ran with them. And it's a pleasure for me now to turn it over to him, so that he can describe those cases. Yehudah?

[DESCRIPTION] Yehudah Buchweitz joins.

[YEHUDAH BUCHWEITZ] Thanks, Bob. Bob has been, for many, many years, one of my best mentors, a great roll model for how people should have both a very important and significant legal career, while, at the same time, giving back very significantly, and also for showing how to utilize the amazing gifts that we have as Weil, Gotshal lawyers, which is a firm that's incredibly dedicated to pro bono. Never said no once to any of the many, many, many, many, hundreds, thousands of hours that we've had people spend on these matters and to use that gift that we have as being long time Weil lawyers to do good for people.

And Sam mentioned that I went to Fordham, but he did not mention that I was his student. And that's how I, in part, ended up with this, working with Sam on some of these things. So the Hamptons cases, what do the Hamptons cases tell us?

OK, so the Tenafly case was supposed to be the eruv case to end all the eruv cases. That was wrong, OK? So what was different about the Hamptons? So a few things were different.

First of all, the eruv was not up, OK? It is a lot more sympathetic when you have the eruv already up, and people have been relying on it, and someone's trying to take it down, take away a right from you, as opposed to trying to put something up when people haven't had it. And in this case, some of the people that have been living there for quite some time without any eruv.

So to argue that there was an emergent need to have an eruv was one challenge. Another challenge was we had three different municipalities with three different local laws. We didn't have just local law 691. And the next challenge, the biggest challenge of all was when we showed up to our preliminary injunction hearing, and we were ready to make all of our arguments about selective enforcement, and we had photographs of all sorts of things.

What we had were a series of cops that came in, one after another after another, with boxes and boxes and boxes of signs that they had been taking down over time. So the selective enforcement argument was not going to work. And that's OK, because we had lots of other arguments, too. But we had to pivot from that. And, because the eruv wasn't up, we were not able to initially get a preliminary injunction. And what ended up happening was we had to go back to each of these towns, go through all of their local processes, go through various appeals of that, and it ended up spawning five separate litigations within the litigation.

There was a federal case against each of the three municipalities, Westhampton Beach, Quogue, and the town of Southampton. There was also a litigation brought by people who call themselves the Jewish people opposed to the eruv, who sued us and Westhampton Beach with strange bedfellows. And then there was a fifth litigation that Verizon and LIPA, the Long Island Power Authority, ended up bringing about their authority, but only when, basically, we threatened that we were going to have to sue them if they didn't. So we had five different litigations, years and years and years of litigation, many, many, many, many, many issues, but there were three seminal decisions that came out of these things, which I'm going to get into a second.

Just two of our more despicable quotes happen to be-- it doesn't matter what they are. But these are two of the quotes you see. "If you need an eruv, this is not the place. Why does the town have to change for certain people? There are other seaside communities. If you are Orthodox, know that not every place in the world for you."

So this is not even code, not code at all. We've had plenty of code over the years. I've seen code from here, until doomsday. This is just straight up a discrimination.

"It's like social engineering. We fought like hell to get out of the ghetto, and now they want to create it again. The opposition in the village is very, very high."

OK, yes, it was true. There was opposition that was very high. But I'll tell you, the eruv has been up there now for many years, and nothing has changed, OK? It's not, all of a sudden, the whole world has changed. It's still a very nice area out there.

OK, so three issues, three seminal legal issues in three different courts at three different points in time with three different sets of parties. But each of those legal issues have set up and have eliminated legal questions that plagued all of the eruv cases going back, the Belle Harbor case, the Long Branch case, Tenafly case, and they were resolved in this case. The first one is-- so you saw the First Amendment item that Bob showed you. There's the Establishment Clause and the Free Exercise Clause, and the eruv has a push and a pull on both, OK?

So on the Establishment Clause, the question is, how much is the town or a municipal utility or public utility doing to establish religion here, OK? So that was an argument that the Jewish people opposed to the eruv, and this was the issue in the Second Circuit. But at the same time, we have a free exercise argument that people have a free exercise.

So where is that line drawn in an eruv case, where people have an ability to freely exercise their religion, but we do not want to have the municipality establish a religion? So this was argued in the Second Circuit Court of Appeals, which is the appellate court for New York, Connecticut, and Vermont. We had three different judges up there.

We did a lot of research on all of them. It just so happens, one of the judges was the mayor of the city of West Hartford in 1985, when the eruv went up in West Hartford without any dispute at all. He actually didn't even remember that he signed off on it, but he did, and other items as well.

So here, what did the court rule? The court ruled no, OK? The way you guys have these eruvs set up, that it's, really, the Eruv Association that does virtually everything, all the town does is say, OK, do whatever you normally do with these other poles. The municipality here, the public authority, public utility LIPA, all they do is enter into an agreement with an Eruv Association.

They don't give any benefit. They actually charge a price. It was $5 a pole at the time. The prices have gone up. I've heard complaints about that. I told them not to complain, and you pay the same price to put a lechi on, as you would to put a light on, as you would to put a cable box on, as you put anything that's a permitted use on these poles. And that was a super important issue for the judges, and they concluded that it is not an establishment of religion for LIPA to allow lechis to go on poles.

Sitting here now, looking back, it seems like it's an obvious thing, but I can tell you that there was thousands of pieces of paper litigated over this, many, many, many arguments with all the different litigations, whether this is a establishment of religion. And not only that, the really important thing that this court did was it said that a neutral accommodation of religious practice qualifies as a secular purpose, and that is something that leads the way to other things, such as what you'll see in one of the other decisions, where it is a secular purpose to accommodate religion. And this is something we say all the time now, whenever somebody tries to make noise about any eruv. It hasn't happened in a little while now.

We go in, and we say, "No, no, no." It's not just that you have to stand out of the way. It's actually your affirmative duty to accommodate religion. Now, I'm not saying you have to help religion, but you have an affirmative duty to accommodate religion.

That was the Second Circuit. Here's the town of Southampton. Now, this is in state court in Suffolk County with a judge who-- and there's not a lot. There are few eruv in Suffolk County. I know that Touro is in Suffolk County, and that's the court we were in, in Central Islip out there.

And here, you each one of the towns had a slightly different law, slightly different law that they were trying to apply and see if they can get it to apply to an eruv. And what these towns did was they kept trying to find a way to ban the eruv. And what we did was we found, in New York State cases, going back for some time, including in the Belle Harbor case, at one point, at the very end, it says there was a duty under New York law, an affirmative duty in religious land use to suggest measures to allow religion to be accommodated, OK?

That doesn't mean you have to agree to every religious application. They certainly don't, and they certainly have no duty to do so whatsoever. But in this circumstance, where we're talking about something that is so unobtrusive, that you literally would not know, if you're looking at a pole, whether a plastic strip is part of a lechi, or it's covering a wire that's for the power company or the phone company, in this kind of a circumstance, you have a duty to try to assist them, OK?

They said, it's not discernible, truck drivers would not know whether there are lechis on it or not, it's not a message. And they failed in their duty to accommodate religion. After this decision, the town of Southampton lawyers who were the ones who were the most adamantly against us, I remember her calling me and saying, "this is a very hard call for me to make," because she wanted to try to settle, at that point, which we let her, because we wanted an eruv, if not a lawsuit, which is what I said repeatedly to people, again and again, and still say.

But this is probably the decision, even though it's from state court, Suffolk County, that we quote the most, because this one really brings home when a town is thinking about trying to make a move, pass a little law, do something. We said, "No, this is what this court ruled, and this is what you're going to be faced with." So this is--

[BOB SUGARMAN] Yehudah, let me just say something. When the federal judge that was running the cases referred this particular issue to a state court judge in Suffolk County, we were not happy, because we figured and thought that whoever this judge is going to be is going to be a local political appointee and would sympathize with the zoning boards and give us a big problem. We could not have been more incorrect. And one of the-- I mean, I've learned this lesson many times over a career. You never, ever know how a litigation is going to go.

[YEHUDAH BUCHWEITZ] Yeah, and this is Judge Farneti. So very important decision. It's one that's been quoted now many times, certainly by us, but also in other things.

OK, so the third decision, another very important issue that came up repeatedly in all the different eruv cases and was really, in many ways, in our view, resolved by this was, what is the authority of Verizon or LIPA, in this case, in other cases, Orange & Rockland, Cablevision, whatever, to allow these Eruv Associations or these local synagogues or people to just put up these "religious symbols?" They're not religious symbols, but that's what people like to say, on their poles. Like, why do they get the right to do that, and who has the power in the debate over the poles?

Is it the utility, or is it the municipality, OK? And this was a huge, huge fight, and we really wanted to Verizon and LIPA to take this up, and they really didn't want to. And in the end, we had to really pressure them in various ways, in order to get them to bring a lawsuit, and they brought their own lawsuit.

As you can see, it's Verizon New York, et all. It's also LIPA against the village of Westhampton Beach and then the other ones. So they brought the lawsuit. This was case number five within the whole group. They were a plaintiff in this case about one issue, their legal authority to allow lechis to go on poles.

Now, why did they care so much about this? Not just because they thought we were going to sue them. That's part of it. But also, it goes to the very deep nature question of, what authority do they have? And there's a bunch of cases in New York about this when it comes to a municipality trying to force a utility to put lights on that they don't want.

Who is it that really controls those poles? This is something that no one in normal, regular life ever thinks about. All you think about is these poles are-- you know, they're going to fall on my-- the tree is going to fall on the power line, whatever. But this is a big, big, big issue, and the utilities fought hard for it, and they won. And what they won on was that their authority came from the state, and the state was supreme to these municipalities, and the municipalities could not trump them, even though, at this point, Verizon was a completely private company, completely private.

LIPA was a public authority, but Verizon was completely private. But it got its authority from the state, and the state authority trumped the locals. And as a result, the authority of Verizon and LIPA was supreme.

Now, this became very, very important in other cases later down the road, because, for example, and we'll get to it in a little bit, but just to give you a preview, slight previews, in the cases in upper Saddle River, Mahwah, and Montvale, there, those guys figured out something. Each case, the towns try to figure out something else. The people who want to keep the Orthodox Jews out, they said, "OK, well, old laws didn't work in the other one. So let's make new laws, and let's make sure these new laws don't look like they're trying to discriminate. So we're going to make them appear neutral, even though they're not, and we're going to regulate these poles."

So all the Eruv Association has, in order to say they have the authority to put these lechis up, even if it's not under these new local laws, is the license that they have from Verizon or from Orange & Rockland. And to the extent anyone ever tries to say that license isn't worth anything, you point back to this decision, and you say that this is the one that says they have the right. So the three cases, so First Amendment, no issue under the Establishment Clause and a duty to accommodate under state law, duty to accommodate, and then under-- also, the state law trumps the local law on the authority. So those were the three big kind of decisions. Those are the three big issues.

There were lots of other issues, lots and lots of issues in all the litigation. But once those three things were decided, you could see it was in 2014 and 2015, all three of them. Everything kind of fell after that, and each of the towns came to us, and they wanted to settle. And it was-- this says it was a five years. I think it might have even been eight years. I think the firm donated $5 million of legal fees throughout the entire thing, and we got some nice press here.

This is Am Law. It was also covered by The New York Times, and it was a big, big moment in litigation history and also, frankly, in religious civil liberties history, because what you have here is a straight up attempt to keep a certain type of people from living where they want and from practicing their religion the way they think sees fit. And it will never, ever, ever impose anything on anyone else. By having this, basically, imaginary border around them, that they feel is important to them and that doesn't impose anything on anyone else, it is the epitome of the kind of thing where you should be reasonably accommodating religion. I said-- and you were about to say something, Bob.

[BOB SUGARMAN] Yehudah, two other observations. One, in the midst of the Hamptons case, a reporter for The Daily Show went out to Southampton and, first, interviewed one of the officers of the Jewish people opposed to the eruvs and then interviewed a proponent of the eruv. In the second interview, he put on what he called his eruv hat, which was a hat with poles and wires and said something, like, "Well, now that I've got my eruv hat on, I can have a ham and cheese sandwich and a glass of milk, right?"

Anyway, the piece is called The Thin Jew Line. It's on YouTube, and I think you will enjoy it, if you see it. And the other thing is our involvement in these cases literally changed the lives of Orthodox Jews, whether it's the young families who could then push their little kids to shul, or whether it's the grandfather who needed the wheelchair to go. And the greatest pleasure that I've had, as a result of all these cases, is the knowledge that we've really changed the lives of Orthodox Jews, and for that, it was all worth it.

[YEHUDAH BUCHWEITZ] Yeah, and I'll just say, I'm not going to say anyone's name. But I'm getting texts from people who were also very involved in this, including political behind the scenes, and you know who you are. And all that was very important. I mean, these were-- I remember being at different points in time, thinking, like, OK, if we screw this up, there's going to be no eruvs in the entire United States anymore. So we really can't. And, so we really had to pull out all the stops, not just us, but a lot of other people as well.

OK, we have a few minutes. I want to do a little bit on the Bergen County cases before we go to Q&A. I just also want to say, there is a Q&A in, I guess, the bottom of your screen. You can put any questions in. Sam will curate them, and we'll answer them in the last 10 minutes.

OK, so in 2017, just two years after the Hamptons case is settled, we ended up having new problems here, new problems, new issues, but a lot of the same old discrimination. These were in Upper Saddle River, Mahwah, and Montvale. Basically, where it is, is at the very bottom of New York State. There was many, many communities of people moving in, where they hadn't moved before.

And if you know that area, there's no, like, big streets with roads that have power lines on them. That would be, obviously, easy to make an eruv. So what they did was they dipped into New Jersey with their plans. They got licenses from Orange & Rockland or from Verizon in order to create the eruv.

But here, for the first time, we really had people moving. We had an eruv of going, where there really weren't any people, which was a little odd. And just so you could see, like on the map, this is Mahwah. So Mahwah is this whole big square, and the part that was going to be the eruv is this tiny, little sliver over here in order, basically, for the people in Airmont to be able to be within an eruv.

And that didn't sit well, and they had to do something, couldn't allow this to happen, and they passed a law called 1812 that would prohibit affixing any sign, advertisement, notice, poster, paper, device, or other matter to any public utility pole. So that doesn't look discriminatory on its face. It's not something that could have been selectively enforced, because they just passed it. So what do you do?

OK, so with all these cases now, what we had to start doing was arguing that these laws were passed. And there was one in Upper Saddle River, one in Mahwah, that these laws were passed with discriminatory intent. So here's some of what we saw in Mahwah, which was pretty bad.

And this also, really, was in the era of social media and people hiding behind the internet. So it wasn't necessarily in public meetings, but it was people saying very terrible things anonymously, so, you know, "scum, virus, and all this other stuff, dirty town, and be infested with these nasty people." So this is talking about just regular people who want to live their lives and have the ability to carry, to push a stroller, push a wheelchair, carry a bottle of water up to shul on [INAUDIBLE].

So another thing that's different about this case was we got massive support from the state of New Jersey. We tried many times in New York and really didn't get any help. They were kind of happy that we were doing the cases, and they saw that as taking one thing off their plate. But Chris Perrino, who's now in private sector, was incredible, and he brought this lawsuit against Mahwah, investigated all three. He only needed to sue Mahwah, and it had the intended effect. And just like Bob was saying, he likened it to the 1950s, and shortly after this lawsuit was filed, Mahwah caved.

On Upper Saddle River, it was not the state that made them cave. It had to be us. So Upper Saddle River had a portion of the eruv that was up and a portion that wasn't yet up. The portion that was up, just like what happened in Tenafly, they ordered it to be taken down, and they were about to do that. And we ran in for a TRO, and we saw on the other side, Bob's old friend, Bruce Rosen, who was the lawyer for the Borough of Tenafly, who was representing Upper Saddle River.

They gave in, as we were in court, going through the TRO on a Friday morning, and they said they could stay up. But we would have to then file for a preliminary injunction, which we did. So how did we figure out that the eruv law was discriminatory? This one is Ordinance 1615.

So we did public record searches. One of the benefits of suing and being in a litigation against a municipality is there are public records laws. So we were able to determine that they learned about an agreement with Orange & Rockland, and then the very next week, they passed this law. So that's good, but not quite enough, OK?

Again, this is a law that they passed, that had no reference to an eruv, totally neutral on its face. We had to show the discriminatory intent. So what we were able to determine throughout the preliminary injunction papers and with the open records laws was that they, basically, had a bogus justification. All these guys said, "Oh, well, you know, we needed to protect political signs.

Political signs? Really? OK, well, there's nothing in your law saying anything about political signs. You passed it right after you found out an eruv was going on, and you already have laws that regulate political signs.

So we presented all of that to the judge at the preliminary injunction hearing in New Jersey and in Newark, and the judge, basically, ripped them out, made us go into chambers. And he told them, basically, that he's going to rule against them, unless they settle, and they did. And Bob was there for that one.

Then there was Montvale. That one was kind of the dog that wagged the tail, and they said-- they didn't even have a new law. They said the eruv was litter. But as soon as they saw the other two fall, they fell, too, and all the cases settled.

And for these, we did make them-- in the Hamptons, Bob probably thinks it was a mistake. But we did not make anyone pay any legal fees. I thought it was important to just get them done. Here, we made everyone pay a little bit, and all of the legal fees that were paid were donated back to the Eruv Association for maintenance of the eruv. We didn't keep any of it.

And then there's just two very brief ones, and then we'll be at the exact right time that I told Sam I would be at. Just two little ones right after this. Orangetown, that's a place that's in New York. It's sort of near Nyack. So they tried to pass a law.

We went up there. We sent them a letter. I met the guy face to face. I told him what was going to happen.

I said, "If you go forward with this, we're going to sue you. You're going to pay your fees, you're going to pay our fees, and it's going to ruin you. Or you could just let these little strips go up on the poles, and nothing will change in your town." And guess what? He gave up.

And then the same thing in Woodbury, very similar. This guy, though, he also said something stupid in the press, basically, showing that it was all discrimination. So are these the cases to end all eruv cases? Who knows? But we hope so, and we've been spending our time on Shabbos elevators, shuls, and schools since. And that's it.

[SAM LEVINE] Well, thank you so much, Yehudah, and thank you so much, Bob, for such a wonderful presentation. So substantive, covering so much ground in such a concise method, and so helpful for our audience. One point I wanted to clarify for the audience before I turn to a question or two, you did mention in passing, I think, that you took these cases pro bono. And I think a number of members of our audience are lawyers and law students know what that means, but maybe not everyone.

So pro bono publico, a Latin term, that means for the public good, that while took these cases on without charging a fee to the clients, which is quite substantial, as Yehudah mentioned, for a global law firm. Likewhile, most of your clients, Yehudah, of course, and Bob, are big corporations, which do pay a substantial fee for your excellent services. And I think it speaks very well of the firm and, of course, very well of both of you.

And on that note, we saw the photo of the team that worked with you, and I've met a number of members of the team. And a number of the questions that came in from the audience were curious about some of the technicalities. Some of the participants this evening had heard of the term Eruv for many years, but they had never heard of the term lechi.

And what was it like for you? Both of you, of course, have a background in Judaism and Jewish law. What was it like to have to educate, both the members of your team and to, quite frankly, educate the judges who were appearing before on these very technical aspects of Jewish law?

[BOB SUGARMAN] I didn't come to these cases with a very significant knowledge of Jewish law. My wife has much more of a significant knowledge of that than do I, but it never was difficult for me to explain the components of the eruv, and what is a lechi, and why do you need it. And the one piece of this that was somewhat difficult for me was the argument that your clients are trying to evade and avoid their obligations under their religion, and how can that be?

I mean, they choose what religion to observe, and they can't just say, well, we're going to put some wires up and some strips, and all of a sudden, we can push. And the answer that I've always given is, 2,000 years ago, this was what the rabbis established and wrote about it, and it's a convention, just like there are conventions in many other areas and aspects of our existence. Yehudah, I don't want-- add whatever you.

[YEHUDAH BUCHWEITZ] Yeah, I mean, look, we've learned a lot over the years. I mean, it's interesting that the different rabbis who supervised the different areas that we've dealt with have slightly different views of things, but the lechis are the thing that ends up getting litigated, right? Because the mountain is there. The fence is there.

You're not able to put up-- it's not going to be a reasonable accommodation of religion necessarily to say, OK, we need to put a big, huge wall. So the place we end up litigating is the lechis. And the other sides have argued, "Oh, it's a legal fiction, oh, this, oh, that."

And I remember one time, at one point, we were talking, where they were going into-- the woman from the town of Southampton was going to one of the arguments about how, like Bob said, people just want to get a way around their religion. And I scoffed at her, and she said, "Are you scoffing at me?" And I said, "Yes, because what you're saying deserves to be scoffed at."

And I think one of the best things that we had in each of these cases were people of different levels of religiosity. One of our best witnesses in the Hampton's case, really important witness, was a guy who did not keep shops. But he lived out there, and he thought it was very, very important that anybody who believes this and who wants this should be able to have it under the circumstances we were talking about. And that's really where the freedom of religion comes in, and that's what this is really about.

[SAM LEVINE] Thank you. And the eruv within Jewish law is certainly one of the most complex areas of Halakha, one of the most complex areas within the Jewish legal system, though, it's quite disingenuous for an opponent of the eruv to criticize you for not following your own religious practices. And as you well know, you mentioned, you were my student many years ago at Fordham Law School in my Jewish law class, and I do want to take this opportunity to thank you publicly for your service on the Jewish Law Institute advisory board at Touro Law, an inaugural member of the advisory board. And Bob, likewise, although not formally a member of the board, we've appreciated your wise counsel and advice over the years. There's another question that has to do with some of the political aspects that you alluded to, Yehudah, and a curiosity as to whether the government, the DOJ, in particular, was involved in the proceedings, at any point, in defending the civil rights of the Jewish community.

[YEHUDAH BUCHWEITZ] OK, so the DOJ gets involved in-- so the answer to the question is, in all of the cases, all the recent cases, the DOJ was aware and indicated, at least in the Hamptons, in the Bergen County cases, that they would get involved potentially at some point. They typically get involved through RLUIPA, which is Religious Land Use and Institutionalized Persons Act, if there's a violation there. And that is much more, like, when there's a building being built, a synagogue, a whatever.

There's an open legal question on whether a lease or use of a pole would fall under RLUIPA, and they have not wanted to-- at least, the prior administrations have not wanted to delve into that. But, like I said, the New Jersey Attorney General's Office and the Department of Civil Rights, they're fabulous, amazing. I mean, the lawsuit they brought against Mahwah was a game changer, and they've been involved in other cases, where I know-- they can't tell-- they don't tell me everything. But I know that they're doing things, so that's important.

[SAM LEVINE] Thank you. And maybe a final question moving forward, you mentioned that it's been some time since the eruv cases have been brought, and you've sort of moved on, in some ways, to many other areas of religious liberty, in particular within the Orthodox Jewish community. Do you anticipate any cases arising regarding eruvs? Is there a chance would ever reach the Supreme Court, and do you think maybe society and/or legal attitudes have changed over the years?

[YEHUDAH BUCHWEITZ] Well, maybe I'll start, and Bob, you can go on. I mean, they did deny cert in Tenafly. Bob gave them a chance for no legal fees, if they wouldn't have gone for it, but the Supreme Court did deny cert.

You know, the interesting thing about all these cases, if you listen, every single one of them is in New York and New Jersey. There are dozens and dozens, scores, maybe even hundreds, at this point, of Eruvin outside of the New York, New Jersey area, which have never had a real challenge. There's a couple of letters that were in Miami and a little bit in Chicago, but no real litigation, OK? And I think that there may be something to what you're saying, Sam, that people just realize it's just not that big a deal.

It's not the thing that's going to change their neighborhood one way or another. And even if it does, they should be embarrassed themselves if that's the way they're thinking. People should not be trying to exclude people from living where they choose and practicing religion that they want to practice because of who they are. And I think that people have, hopefully, come around to that, and I think they've also seen the hard lesson that they're really not going to win. And I'm hopeful that that's the case.

[BOB SUGARMAN] Yeah, I think that's right, and I think that people look at Tenafly, 15 years later, the Hamptons, 10 years later, and they realize that they haven't changed one bit because of an eruv. And, so the pressure to oppose Eruvin, I think, has lessened. I probably shouldn't have said that, because I suspect there might be another case. And as I said, way at the beginning, this is all political.

Members of boards, of Borough councils and city councils value more than everything else getting re-elected. And if they face political opposition, as the Tenafly council faced, they're, unfortunately, potentially going to take the easy way out and say, "No." And then the only way they say yes is because some court tells them that they have to do it, and then they have the argument, well, we fought, we lost, and there's nothing we can do. Hopefully, that's not going to happen, but who knows?

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[TEXT] Touro Talks, Touro University, touro.edu/tourotalks

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