Publication Date: Wednesday Aug 11, 1999
TightropeWith eruv proposal, Palo Alto tries to walk the line between church and state
What's an eruv?" asked the voice at the other end of the telephone.
This was a somewhat surprising response to what had seemed a straightforward inquiry. The voice belonged to Benita Miller, an employee in the communications and marketing office for the city of Beverly Hills. And although she may not be aware of it, the building in which she spends her working days actually sits within the boundaries of a long-established eruv.
For Miller and the many others who are unfamiliar with the word, an eruv (pronounced ay-roove) is a continuous physical boundary around a city or a portion of a city. By representing an extension of the home, it allows Orthodox and other Sabbath-observant Jews to undertake the normally prohibited activities of carrying and pushing outside of the house between sundown Friday and sundown Saturday.
In fact, Beverly Hills actually has two eruvs. The original, built in the mid-1970s, was encircled by a larger one about 12 years ago to accommodate the growing Orthodox Jewish population. The newer eruv has a 31-mile perimeter and incorporates part of western Los Angeles. It consists of already existing boundaries, such as fences along back yards, a golf course and the Santa Monica Freeway, together with telephone wires. Where there are gaps in these "walls," clear plastic monofilament line has been strung between poles, primarily street lights, to symbolize "doorways." According to local Orthodox Jew Roger Parrell, this line is somewhat difficult to see, even when you know where to look. To those, like Miller, who don't, it's practically invisible.
Beverly Hills is by no means alone in having an eruv. In addition to two others in the Los Angeles area, there are eruvs in more than 100 other U.S. cities, including Seattle, Baltimore and the nation's capital.
Now a group of local Sabbath-observant Jews, led by Rabbi Yitzchok Feldman of Congregation Emek Beracha Palo Alto Orthodox Minyan, are trying to add Palo Alto to this list. Their hope is that someday, they can do such simple tasks on the Sabbath as carrying house keys or pushing a stroller outdoors.
But the concept of an eruv, harmless as it may appear on the surface, has led to a furious debate in Palo Alto. Since the proposal was brought to the City Council in May by Councilwoman Sandy Eakins, it has become one of the most widely discussed issues in years. Both supporters and opponents have flooded newspapers with letters. City Council members have been similarly deluged. The strong tone of the discussion has even prompted the city Human Relations Commission to hold a public hearing so both sides could be heard.
While many Jews and non-Jews have expressed support for the eruv, there has also been notable dissent, including some murmurs from the non-Orthodox Jewish community. The main problem? A possible breach of the constitutionally protected separation of religion and state, because the city would have to approve the stringing of twine between some of its utility poles to create the eruv.
The persistence of the debate in Palo Alto comes as something of a surprise, because eruv proposals in other cities have, for the most part, been routinely approved for decades, usually with little fanfare. While eruvs have been challenged in court on two occasions--both on the East Coast--none of the California cities that have approved eruvs has faced a public outcry.
In Palo Alto, the issue will return to the City Council for a vote, possibly as early as next month. The discussion will likely be wide-ranging, yet the arguments about the separation of church and state will probably set the tone.
While the Bill of Rights' proscription that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof" is better known, it is wording within the California Constitution that raises warning flags in some observers' minds: "Free exercise and enjoyment of religion without discrimination or preference are guaranteed." By allowing the construction of the eruv, would the Palo Alto City Council be giving a religious preference, thereby acting unconstitutionally?
Feldman and other supporters say the issue has been blown out of proportion. They say opponents seem to view the eruv as a threat or an intrusion on their own religious beliefs. They blame such attitudes on a misunderstanding of the eruv's purpose and, just as importantly, what it will look like.
For most Palo Altans, Saturday has become a day for such activities as shopping, going to the movies, taking a road trip or even just watching TV. Not so for Sabbath-observant Jews. For them, the time between sundown Friday and sundown Saturday is for complete rest and serenity, just as God rested from creation on the seventh day.
In today's society, achieving this can be more difficult than it first may appear. According to Jewish law, there are 39 so-called "creative labors" that must be avoided on the Sabbath, including cooking, building and kindling a fire. Adapted to 20th-century life, this last provision precludes driving a car or switching on or off any electrical item.
But it is perhaps the prohibition on carrying that creates the biggest difficulty. As the definition includes pushing, families with children too young to make the journey on foot are effectively unable to attend synagogue together. And something as simple as taking a dish or a bottle of wine to a friend's house for a Sabbath meal becomes impossible.
The rules relating to carrying are very specific. To be precise, the Torah forbids a transfer between private and public domains and allows carrying or pushing in a public domain only for a distance of less than 8 feet. Feldman explains that a public domain is defined in the Torah as a "congested area." However, in order to clarify this definition, the rabbis who wrote the ancient Talmud interpreting the law of the Torah chose to label everything outside the home as public domain. As a result, Sabbath-observant Jews can carry nothing more than the clothes they wear when they put a foot outside their front door on the Sabbath. Feldman puts it in simple terms:
"I could carry a couch from one end of the room to the other, but I couldn't take a spoon outside the house," he said.
Of the estimated 10,000 Jews in Palo Alto, an estimated 700 are members of the city's two Orthodox synagogues. In addition, a minority of the much larger Conservative Jewish population also strictly observe the Sabbath laws. It is for these Palo Alto residents that the eruv would make such a difference, allowing them to consider the bounded area an extension of their homes for the purpose of carrying. No more putting the house key under the mat, no more staying at home with the children, no more arriving at friends' houses empty handed.
To those outside the Orthodox Jewish community, the idea of an eruv can seem a little bewildering. Surely it's just a loophole to avoid some more inconvenient parts of Jewish law? Not so, says Feldman. He explains that the concept of an eruv dates to the time of King Solomon and is laid out in the Talmud as an alternative to the restriction on carrying.
The eruv's boundaries mark the end of the private domain, making it clear exactly where it is permissible to carry. And Feldman is quick to stress that an eruv only affects carrying and does not allow Sabbath-observant Jews to ignore any of the day's other restrictions. Nor does it permit the carrying of items associated with these prohibited activities, such as car keys or money.
"It's not a loophole. It's not a dispensation. It's just another way (the rabbis) protect the Biblical law," he explained.
In fact, Jewish law lays down such precise and complicated rules for the building of an eruv that not all cities are suitable. For example, an eruv must be continuous: Any gaps in existing boundaries are deemed to be doorways and must be strung with some sort of twine. And it can't include highly congested areas, such as freeways or, at the other end of the scale, "dead space," defined as uninhabitable areas that could include mountains and bodies of water. This explains why an eruv is being considered just for Palo Alto and not, for example, for the Peninsula as a whole.
Even with these and many other restrictions, Palo Alto is the almost perfect place for an eruv. The idea is to enclose about 90 percent of the city within the eruv, together with part of Stanford University, encompassing all the homes of most Sabbath-observant Jews.
About 75 percent of the proposed route is already enclosed symbolically by San Francisquito Creek to the north, the Highway 101 sound wall to the east, Adobe Creek to the south and the fence along Foothill Expressway to the west. There are about 20 to 25 gaps in this boundary, where twine would be strung at a height of 20 feet. Existing telephone or street light poles could be used as supports where possible, although in some instances plastic side poles would need be installed to satisfy Jewish law.
Feldman insists that the eruv would be virtually invisible. The Beverly Hills experience certainly backs up this claim. Beverly Hills City Attorney Larry Wiener is fully aware of the existence of the eruvs. However, despite having grown up and now working in the city, he does not know where they actually are.
The geographical suitability of Palo Alto for an eruv was noted as long as 15 years ago. But it was not until 1994 that the Orthodox community formed a nonprofit organization, Palo Alto Community Eruv, to examine the possibility of its construction. The effort gained momentum in 1995, when Feldman was hired. With his support, as well as a report from an eruv expert who assessed the project's feasibility in Palo Alto, PACE submitted a proposal to the City Council in May.
If the proposal is approved, PACE would cover the cost of construction, estimated at up to $50,000. The group has also agreed to be responsible for maintenance of the project.
When the eruv proposal reached the City Council in May, it was immediately treated with caution. Council members passed it on to city staff for technical and legal reviews.
On the technical level, the Utilities and Public Works departments are studying the proposal's practicality and safety issues. Utilities Director John Ulrich explains that the route map is still a work in progress, with some details needing to be finalized. Once that's been done, his department can evaluate which poles could be used as supports for the twine and to whom they belong: Many are jointly owned by the city and independent utility companies. Ulrich also points out that parts of the eruv would come under the jurisdiction of Stanford University and possibly Santa Clara County.
The Public Works Department is considering the potential impact of any new poles on rights of way and traffic flow. Indeed, the possibility that the eruv could cause disruptions to the public if parts were to fall down has concerned some residents. Feldman explains that PACE would be required to have insurance covering such risks.
Meanwhile, the more serious issue of constitutionality is being examined by City Attorney Ariel Calonne. To date, the legality of eruvs has been challenged twice, once in New York state Supreme Court in 1985, and again in federal District Court in New Jersey in 1987. In both cases, the courts decided in favor of the eruvs, which were considered to be constitutional by virtue of having secular as well as religious purpose.
Calonne points out, however, that neither of these court cases is binding in California. There is also the extra burden of the more strongly worded California Constitution. The Palo Alto eruv would not, of course, be the first in California, but the eruvs in the Los Angeles area do not set a legal precedent, since no court has ever passed judgment on them.
Calonne is investigating two distinct points--the potential use of public property and the proclamation from the local authority that, under Jewish law, must accompany the eruv. With no Californian legal precedents for guidance, Calonne is studying other cases involving public property and possible breaches of the church/state divide, to see if they might apply.
"The law doesn't say that (government) can never deal with religion. It says that you can't have excessive entanglement," he explained. "I'm not trying to make more of it than it really is, but there are some novel issues in California."
The American Civil Liberties Union and Americans United for Separation of Church and State are keeping a close eye on Palo Alto's handling of the issues. On the question of public property, both organizations allow that an eruv may be permissible if all other groups are given the same freedoms in the future.
The proclamation, however, is seen as a completely different matter.
At first glance, the proclamation simply may appear as a piece of paper issued by the local government, granting the rights requested to the head of the eruv organization for the rental of $1. But Martin Kassman of the Bay Area Americans United chapter thinks that issuing such a statement goes beyond the scope of the council.
"For the government to declare this eruv to be in effect is for the government to make a religious act," he said.
Margaret Crosby, an attorney with the ACLU in San Francisco, agrees.
"The thought on this that gives us pause is the proclamation," she said. "That, it seems to me, comes much closer to the constitutional line. It is not the purpose of governments to make religious proclamations."
She adds that the two East Coast cases upholding eruvs were based on the "easier" issue of public property and that the concept of the proclamation has not yet been challenged in court. Midpeninsula ACLU member Paul Gilbert has no doubt in his mind that the proclamation breaches the constitution.
"The city hasn't any business saying (the streets of Palo Alto) are anything else than the streets of Palo Alto," he argued.
Feldman believes the eruv falls well within the constitutional boundaries. He says the eruv is not a religious symbol but merely a boundary and, as such, has no religious meaning. He stresses that the eruv would not be consecrated. It would, in fact, have a definite secular purpose, making it easier for Jews to visit friends and family on the Sabbath. Feldman adds that the proclamation is merely a formality in Jewish law; he likens it to a license.
Calonne is hoping to finish his report within the next few weeks. For now, civil liberties watchdogs say they are monitoring the situation and plan to hear the council's verdict before deciding on their next step.
It has now been nearly three months since the eruv issue made a brief appearance before the City Council and was quickly dispatched to staff to analyze. Yet the public debate is just as furious today as it was in May.
The Weekly still receives dozens of letter a week on the subject. Councilwoman Eakins, who brought the issue to the council, says she is still receiving large amounts of correspondence from the public. So is Feldman.
The level of public outcry in Palo Alto is a surprise to Wiener in Beverly Hills. As far as he knows, non-Orthodox residents there have never showed much interest in either eruv, and the constitutional questions have not surfaced. This has also been the experience on the other side of Los Angeles, in Long Beach, where an eruv proposal currently under council consideration has gone virtually unnoticed by the public.
In Palo Alto, the majority of letters support the eruv, while those opposed generally raise the church/state issue as the point of concern. Not all of the opposition has been temperate, however. Some comments, said Wynn Hausser, chairman of Palo Alto's Human Relations Commission, have "smacked of anti-Semitism."
The HRC invited Feldman to its meeting last month to explain the thinking behind the eruv, hoping this might encourage a more tolerant response from some members of the public. Hausser said he believed the meeting, attended by about 35 people, served its purpose.
"When he (Feldman) laid it out, it just made a lot of sense. It doesn't seem like an intrusion, and it doesn't seem like a place where the government shouldn't go," Hausser said. "There has been sort of a tenor of intolerance over this. I think (the meeting) alleviated those feelings."
Some of the opposition in Palo Alto has come from within the Jewish community itself. Rabbi Sheldon Lewis, leader of Conservative synagogue Congregation Kol Emeth, thinks that worry about potential intolerance from non-Jews has made some Jews wary of the eruv proposal.
"There are some fears of the Jewish community having too high a profile, and that makes some people uncomfortable," he explained.
Yitzhak Santis of the Jewish Community Relations Committee agrees.
"I think some Jews are responding to the history of anti-Semitism," he said. However, given the levels of support from outside the Jewish community, he believes such fears are unwarranted. "I think it's a nonissue," he added.
And while there may be dissent from some members of the Jewish community, it's a completely different story when it comes to the religion's leadership.
Although only Orthodox and some Conservative Jews typically observe the Sabbath prohibitions that the eruv helps to ease, Palo Alto's Jewish leaders are presenting a united front on this issue. Feldman has received endorsements from all secular and religious Jewish leaders in the city.
"That level of unanimity is unprecedented," he said.
Rabbi Ken Carr leads Congregation Beth Am in Los Altos Hills, which is just across the Palo Alto border on Arastradero Road. Although the eruv would be of no personal benefit to the vast majority of his members, he still supports the project.
"I don't see any good grounds for objection to it. It doesn't seem that it will impact on the life of Palo Altans, and it will be of help and assistance to our Orthodox community," he said.
Lewis says that a minority of his Conservative members will find the eruv of direct use, but nonetheless he is "relishing" the prospect of an eruv in Palo Alto.
"The other wonderful dimension is that it's a marvelous opportunity for education," he explained.
The proposal has also received the support of the Jewish Community Relations Committee, which represents 80 religious and secular organizations in the Bay Area. The committee is strongly committed to the separation of religion and state but feels that an eruv does not cross the boundary between the two.
"This is more akin to zoning--more to do with getting a zoning permit to build a synagogue, church or mosque than it is to do with a religious symbol," said Santis, who is the committee's Peninsula regional director. "This is not a breach of religion and state. If it were, we wouldn't support it."
There has also been positive support from non-Jewish religious leaders, with both of the Stanford deans of religious life and the Palo Alto Ministerial Association backing the eruv. The deans group is made up of three deans--one Christian, one Jewish and one Islamic. The ministerial association represents about 40 local houses of worship that include all the major religions.
The Rev. Jeff Vamos, co-chair of the association, explains his thinking. "The issue here is that a member of our religious community is seeking to get something done so they can remain faithful to their tradition," he said, adding that he considers the religion/state issue to be a "red herring."
On the whole, Feldman is pleased with the level of support the eruv proposal has received in Palo Alto. And while he acknowledges that some members of the Jewish community may think the idea is "crazy," he believes most don't see it as an issue worth opposing.
"Most people's moral calculus follows the idea that if something is going to help someone and not harm anyone else, then it might as well be permitted," he said.