To the casual observer, the eruv (pronounced A-roove) in Miami Beach looks like little more than long sections of string tied to light stanchions and tall poles. Orthodox Jews say it's a religious practice that makes their lives easier and does no harm to anyone else. The Miami chapter of the American Civil Liberties Union isn't so sure.
During the Sabbath -- which begins at sundown Friday and lasts until nightfall Saturday -- Orthodox Jews are prohibited by scripture from engaging in a number of otherwise routine activities, such as raising or lowering a flame (a prohibition that extends to physically turning lights on or off), writing (with a pen or on a computer), and driving. There are 39 categories of prohibitions in all. The most onerous, from a practical standpoint, is the one preventing the "carrying" of any object outside the home. Given that the law applies to everything from keys to kids, this stipulation pretty much puts the kibosh on normal existence for those 24 hours over the weekend.
Hence the eruv, which isn't Yiddish for "loophole" but it might as well be. "An eruv," explains Rabbi Donald Bixon of the Orthodox congregation Young Israel of Miami Beach, "is the imaginary boundary that makes a public area private," or put another way, that extends the concept of "home" to a portion of the outside world.
The size of this imaginary home is determined by rabbinical experts who map out the surrounding area in terms of existing structures, both natural and manmade: buildings, highways, and anything else that could be interpreted as representing a discernible edge.
There are limits to the imagination, however. For one, an eruv can't be of infinite size. As Rabbi Bixon points out: "It's hard to call a city of 600,000 a private space." For another, a string, wire, or other marker must be installed around areas where no clear boundary exists. In North America more than 100 eruvin have been created, including one surrounding the White House.
So how big is the Miami Beach eruv? As it turns out, pretty big.
"All of Miami Beach is encompassed in the eruv," says Abraham Galbut, an attorney and president of the Miami Beach Eruv Council, which repairs and maintains the string and poles. "In fact the eruv extends through Bal Harbour" -- or roughly from Government Cut north to Haulover Cut.
But it isn't the size of the thing that has attracted the attention of the local chapter of the ACLU. The organization believes the eruv's boundary markers, most of which are located on city property, might be a violation of the constitutional separation of church and state.
"What first brought the issue to our attention was a complaint regarding the poles," relates Randall Marshall, legal director of the ACLU of Florida, explaining that the rights group was recently approached by a private Miami attorney working on behalf of a client. The "poles" that spurred the ACLU to get involved include PVC tubing, thin metal pipes, and wooden two-by-fours affixed to the boardwalk in mid-Beach. They are connected by string and spaced 200 to 300 feet apart along the edge of the manmade sand dunes on the shore. The string is also stretched between city-owned light poles. This defines the eastern border of the eruv; the existing seawalls along Biscayne Bay serve as the western boundary.
Rabbi Bixon, while not familiar with the facts of the complaint, doesn't believe the installation could possibly offend anyone. "If you walked by [the boundaries] a hundred times," he emphasizes, "you wouldn't even know they were there."
Nevertheless, says the ACLU, they are there, on public property, and that -- constitutionally speaking -- may not be kosher. "We're concerned the City of Miami Beach and other local municipalities [who permitted the eruv to be erected] may be involved in [establishing] religion," explains Marshall. "We need to figure out if this is an establishment-clause issue and if so, what can be done about it." The ACLU is currently meeting with Miami Beach officials, attempting to determine, among other things, how the eruv came to be.
Not that its existence has ever been a secret. It was erected in 1985 with the help of the police and fire departments of Miami Beach, Surfside, and Bay Harbor Islands. The Miami Herald described it at the time as "23 miles of wires and wooden fence ... across telephone poles, between buildings, over streets, and above causeways." If government employees erecting a religious symbol on public property is not a violation of the separation of church and state, says the attorney who first approached the ACLU, what the heck is?
That question, as well as the fate of the Miami Beach eruv, may eventually be decided, albeit indirectly, by a case currently on appeal in federal court. In 1999 the Tenafly, New Jersey, Eruv Council approached town officials seeking permission to string wire from the city's utility poles for the purpose of defining and establishing an eruv. The Tenafly town council, citing a local ordinance prohibiting the posting of any object on municipal utility poles, rejected the request. "We don't allow political posters, garage-sale signs, or anything else to be displayed on those poles," explains Mayor Ann Moscovitz, a Reform Jew.
The Eruv Council responded by suing the city, claiming Tenafly was violating its First Amendment rights to freedom of expression and religion. As the case wended its way through the judicial process, tensions grew. Name-calling became common. "“The self-hating Jews of Tenafly,'" recites Moscovitz. "“The anti-Semitic Jewish mayor of Tenafly.' When I hear those references, I see red."
Last August a federal judge upheld the town's refusal to allow the eruv. According to the judge, Tenafly's position amounted to nothing more than an equitable enforcement of the city statute. The Eruv Council has appealed.
Miami Beach chief deputy city attorney Don Papy admits the legal dispute has attracted attention but doesn't think it is applicable to Miami Beach. "It's not a comparable situation," asserts Papy, pointing out that the court ruling doesn't mean a municipality can't allow an eruv if it chooses.
The Miami attorney who brought his client's complaint to the ACLU (and who requested anonymity) is familiar with the Tenafly case and says the court never considered the fundamental question. "The ACLU [which filed an amicus brief in the case] wanted the judge to rule on the [church-state] issue," he explains, "but the case didn't warrant that." Nevertheless, the lawyer maintains, the language of the judge's decision so closely followed the ACLU's line of reasoning on the subject that, had the question been raised, the court might have ruled an eruv does constitute an example of state-sponsored religion.
Abraham Galbut isn't worried. "City officials haven't told me there's a problem with the eruv," he says, adding that he can't imagine a scenario in which there ever would be a problem. "The city grants licenses to people who sell ice cream on the beach. I can't put up a string that does no harm to anyone?"
Galbut points out that those who argue the eruv exists only for the benefit of a small group in Miami Beach overlook a key element of the equation: economics. "Call the Fontainebleau hotel and find out how much they make over the Passover holiday," he offers. "They're booked solid. [Orthodox Jews] from New York like to come here because they can practice their religion and walk around on a Saturday afternoon."
Ultimately, though, it won't be tourists who decide if the eruv stays or goes. It'll be the courts. Unless Miami Beach outsmarts them. If the city were to allow displays of all sorts in all locations, no one could challenge the eruv because, under those circumstances, restricting it would constitute discrimination. The Miami lawyer who brought the complaint to the ACLU doesn't think the city is likely to choose that option, though. "Okay," he says, "the eruv can stay -- if I'm allowed to paint a lavender line down the middle of Lincoln Road."
