The Next Salvo

Thursday, November 06, 2008

The Next Salvo

Updated 11/08/2008 - 6:25 pm

Constitutional law professor Marci Hamilton and attorney Bruce Rosen have reviewed attorney Robert Sugarman's pro-eruv brief of October 19th, and find fault with it.

(Ms. Hamilton and Mr. Rosen have been retained by the Alliance for Separation of Church and State for the Greater West­hampton Area, while Mr. Sugarman rep­resents, pro bono, Hampton Synagogue.)

The thrust of their position is that...

"The Sugarman Memo uses selective cita­tion and misrepresentation of Supreme Court cases to argue that the Constitution permits and would even require the Village of Westhampton Beach to approve both a proclamation and a geographically defined boundary and zone specific to one religious congregation. Mr. Sugarman's reasoning should not be taken as a sound guide to the law in this arena."

One of their points would seem especially heartening to anti-eruvians:

"It is black letter law that no government may take a position on religious law or theology, especially when there is a dis­pute over its meaning among adherents."

This would appear to afford the Village "cover" if it decides to take no action should the Syna­gogue novate its application.

Disturbing, however, is the penultimate paragraph:

"Finally, in light of the (Sugarman) Memo's implicit suggestion that the Village go forward with the Petition regardless of constitutional doctrine in order to avoid a lawsuit, the Village should understand the ramifications of choosing to implement the Petition. If the Village violates its resi­dents' constitutional rights by endorsing and validating religious law, beliefs, and practices and choosing sides in a debate over religious theology, the Village would be liable for attorneys fees and damages. The only means of avoiding such fees is to obey the Constitution's dictates."

In essence, the Synagogue will likely sue the Village if the eruv proclamation isn't approved, and the Alliance may sue the Village if the eruv proclamation is approved.

It would seem that the safest course of action is "No Action!"

Read the entirety of this most recent Hamil­ton-Rosen opinion.

Mr. Sugarman, the ball is in your court.


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