Tenafly Eruv Assn v. Tenafly , 309 F.3d 144 ( 2002 )


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  •                                                                                                                            Opinions of the United
    2002 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    10-24-2002
    Tenafly Eruv Assn v. Tenafly
    Precedential or Non-Precedential: Precedential
    Docket No. 01-3301
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    Recommended Citation
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    http://digitalcommons.law.villanova.edu/thirdcircuit_2002/667
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    PRECEDENTIAL
    Filed October 24, 2002
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    No. 01-3301
    TENAFLY ERUV ASSOCIATION, INC.;
    CHAIM BOOK; YOSIFA BOOK;
    STEPHANIE DARDICK GOTTLIEB;
    STEPHEN BRENNER,
    Appellants
    v.
    THE BOROUGH OF TENAFLY;
    ANN MOSCOVITZ, individually and
    in her official capacity as Mayor
    of the Borough of Tenafly;
    CHARLES LIPSON; MARTHA B KERGE;
    RICHARD WILSON; ARTHUR PECK;
    JOHN T. SULLIVAN, each individually
    and in their official capacities as
    Council Members of the Borough of Tenafly
    Appeal from the United States District Court
    for the District of New Jersey
    (D.C. Civil Action No. 00-cv-06051)
    District Judge: Honorable William G. Bassler
    Argued March 21, 2002
    Before: NYGAARD, ROTH and AMBRO, Circuit Judge s
    (Opinion filed October 24, 2002)
    Robert G. Sugarman, Esquire
    (Argued)
    Harris J. Yale, Esquire
    Craig L. Lowenthal, Esquire
    Weil, Gotshal & Manges
    767 Fifth Avenue, 27th Floor
    New York, NY 10153
    Richard D. Shapiro, Esquire
    Hellring, Lindeman, Goldstein &
    Siegal
    One Gateway Center, 8th Floor
    Newark, NJ 07102
    Nathan Lewin, Esquire (Argued)
    Alyza D. Lewin, Esquire
    Mintz, Levin, Cohn, Ferris,
    Glovsky & Popeo
    701 Pennsylvania Avenue,
    N.W., Suite 900
    Washington, D.C. 20004
    Attorneys for Appellants
    Bruce S. Rosen, Esquire
    McCusker, Anselmi, Rosen, Carvelli
    & Walsh
    127 Main Street
    Chatham, NJ 07928
    Walter A. Lesnevich, Esquire
    Lesnevich & Marzano-Lesnevich
    15 West Railroad Avenue
    Tenafly, NJ 07670
    Noah R. Feldman, Esquire (Argued)
    New York University Law School
    40 Washington Square South
    New York, NY 10012
    Attorneys for Appellees
    2
    Kevin J. Hasson, Esquire
    Anthony R. Picarello, Jr., Esquire
    Roman P. Storzer, Esquire
    Derek L. Gaubatz, Esquire
    The Becket Fund for Religious
    Liberty
    1350 Connecticut Avenue, N.W.,
    Suite 605
    Washington, D.C. 20036
    Nathan J. Diament, Esquire
    Union of Orthodox Jewish
    Congregations
    1640 Rhode Island Avenue, N.W.
    Washington, D.C. 20036
    Abba Cohen, Esquire
    Agudath Israel of America
    1730 Rhode Island Avenue, Ste. 504
    Washington, D.C. 20036
    David Zwiebel, Esquire
    Mordechai Biser, Esquire
    Agudath Israel of America
    42 Broadway, 14th Floor
    New York, NY 10004
    Ronald K. Chen, Esquire
    Rutgers Constitutional Litigation
    Clinic
    123 Washington Street
    Newark, NJ 07102
    Edward Barocas, Esquire
    J.C. Salyer, Esquire
    American Civil Liberties Union of
    New Jersey Foundation
    35 Halsey Street, Suite 4B
    Newark, NJ 07102
    Attorneys for Amicus-Curiae
    3
    OPINION OF THE COURT
    AMBRO, Circuit Judge:
    The primary issues presented in this appeal from the
    District Court’s order denying preliminary injunctive relief
    are whether the Free Speech and Free Exercise Clauses of
    the First Amendment allow the Borough of Tenafly, New
    Jersey, which has permitted various secularly motivated
    violations of a facially neutral ordinance, to invoke that
    ordinance against comparable religiously motivated acts by
    Orthodox Jews. Because there is no evidence that the acts
    in question are expressive, we hold that the Free Speech
    Clause does not apply. We further hold, however, that the
    Borough’s selective enforcement of its ordinance likely
    violated the Free Exercise Clause. Because the other
    requirements for injunctive relief are satisfied, we reverse
    and direct the District Court to issue a preliminary
    injunction.
    I. Background
    An ordinance in the Borough of Tenafly, which
    encompasses 4.4 square miles and has a population of
    13,806,1 provides in pertinent part: "No person shall place
    any sign or advertisement, or other matter upon any pole,
    tree, curbstone, sidewalk or elsewhere, in any public street
    or public place, excepting such as may be authorized by
    this or any other ordinance of the Borough." Tenafly, N.J.,
    Ordinance 691 Article VIII(7) (1954).2 Although Ordinance
    691 does not allow Borough officials to make exceptions on
    a case-by-case basis, in practice they have often done so.
    House number signs nailed to utility poles in plain view are
    _________________________________________________________________
    1. See Borough of Tenafly, About Tenafly, at http://www.tenaflynj.org/
    about.htm (last visited September 20, 2002).
    2. Our description of the facts is based on our independent review of the
    record because, as explained in more detail below, the First Amendment
    bars us from deferring to the District Court’s factual findings unless they
    involve witness credibility. See Hurley v. Irish-American Gay, Lesbian &
    Bisexual Group of Boston, 
    515 U.S. 557
    , 567 (1995).
    4
    frequently left in place. Local churches are tacitly allowed to
    post permanent directional signs bearing crosses on
    municipal property. Lost animal signs and other private
    postings often remain undisturbed by Borough officials.
    Orange ribbons were affixed to utility poles "for a lengthy
    period of time" by supporters of the local high school during
    a protracted controversy over school regionalization, but
    Borough officials made no effort to remove them. Every
    year, officials in the small community permit the local
    Chamber of Commerce to affix holiday displays to the
    Borough’s utility poles for approximately six weeks during
    the Christmas holiday season. Red ribbons, wreaths, and
    seasonal holiday lights are attached to the Borough’s utility
    poles as part of these displays.
    The plaintiffs in this case are Orthodox Jewish residents
    of Tenafly3 whose faith forbids them from pushing or
    carrying objects outside their homes on the Sabbath or
    Yom Kippur.4 In accordance with a religious convention
    practiced by Orthodox Jews for over two thousand years,
    however, the plaintiffs believe they may engage in such
    activities outside their homes on the Sabbath within an
    eruv, a ceremonial demarcation of an area. Tenafly Eruv
    Ass’n, Inc. v. Borough of Tenafly, 
    155 F. Supp. 2d 142
    , 146
    (D.N.J. 2001). An eruv extends the space within which
    pushing and carrying is permitted on the Sabbath beyond
    the boundaries of the home, thereby enabling, for example,
    the plaintiffs to push baby strollers and wheelchairs, and
    carry canes and walkers, when traveling between home and
    synagogue. Without an eruv Orthodox Jews who have small
    children or are disabled typically cannot attend synagogue
    on the Sabbath.
    _________________________________________________________________
    3. Tenafly Eruv Association, Inc. ("TEAI") is an organization formed to
    promote the creation of an eruv in Tenafly. Chaim Book, Yosifa Book,
    and Stefanie Dardik Gotlieb live in Tenafly. At the time of briefing in this
    appeal, Stephen Brenner was not a Tenafly resident, but was building a
    house in Tenafly and planned to move there once it was completed. For
    simplicity, we refer to TEAI and the individual plaintiffs collectively as
    "the plaintiffs" throughout this opinion.
    4. For simplicity, we refer throughout the remainder of our opinion only
    to the Sabbath.
    5
    Centuries ago, an eruv would be built using ropes and
    wooden poles. Today, Orthodox Jews can construct an eruv
    by attaching lechis--thin black strips made of the same
    hard plastic material as, and nearly identical to, the
    coverings on ordinary ground wires--vertically along utility
    poles. Along with preexisting horizontal overhead utility
    lines, the lechis designate an eruv’s boundaries.5 Unless one
    knows which black plastic strips are lechis and which are
    utility wires, it is "absolutely impossible" to distinguish the
    two. 
    Id. at 149
    . Throughout this litigation, the plaintiffs
    have maintained that an eruv (as well as each constituent
    lechi) is "not a religious symbol," but rather is an item with
    "religious significance." 
    Id. at 148
    .
    On June 1, 1999, Erez Gotlieb and Gary Osen, two
    Orthodox Jews who are not parties to this case, met with
    Tenafly Mayor Ann Moscovitz to discuss creating an eruv in
    the Borough. Gotlieb and Osen met with Moscovitz because
    under Orthodox Jewish law an eruv is not valid unless a
    civil official with jurisdiction over the circumscribed area
    issues a ceremonial proclamation "renting" the area for a
    nominal fee (e.g., one dollar). The Mayor said she lacked
    authority to issue the requested proclamation, but agreed
    to bring the matter to the attention of the Borough Council,
    the Borough’s legislative branch.6 She did not mention
    Ordinance 691 or suggest that affixing lechis to utility poles
    might violate any other ordinance.
    At the next Council meeting, on July 8, 1999, the
    Council and approximately thirty Tenafly residents debated
    whether the Borough should grant the proclamation. Many
    of those present expressed vehement objections prompted
    by their fear that an eruv would encourage Orthodox Jews
    to move to Tenafly. A Council member whom the District
    Court was unable to identify noted "a concern that the
    _________________________________________________________________
    5. Many major cities across the United States--such as Washington,
    D.C., New York, Chicago, Philadelphia, Los Angeles, Baltimore, Atlanta,
    and Cincinnati--have one or more eruvs. Both the White House and the
    United States Supreme Court are within the boundaries of an eruv.
    6. Six Council members compose the Borough’s legislative branch. The
    Mayor does not participate in lawmaking unless the Council is
    deadlocked, in which case she casts the tie-breaking vote.
    6
    Orthodoxy would take over" Tenafly. 
    Id. at 151-52
    . One
    Council member voiced his "serious concern" that "Ultra-
    Orthodox" Jews might "stone[ ] cars that drive down the
    streets on the Sabbath." 
    Id. at 153-54
    . The Borough
    Attorney participated in the debate. Neither he nor anyone
    else mentioned Ordinance 691 or indicated that attaching
    lechis to utility poles might be unlawful.
    The Council decided to demand a formal, written
    proposal before voting on whether to issue the
    proclamation. Mayor Moscovitz advised Gotlieb and Osen,
    who did not attend the meeting, that the Council was
    unlikely to grant their request for a proclamation, but
    invited them to submit a formal application. Frustrated by
    the Borough’s reticence, in August 1999 TEAI asked Bergen
    County Executive William P. Schuber, whose jurisdiction
    includes Tenafly, to issue the ceremonial proclamation
    necessary to validate the eruv. On December 15, 1999, he
    did so. The constitutionality of this action is not challenged
    in this case, and neither Schuber nor any other Bergen
    County official is a party.
    Verizon, the local telephone company, owns the utility
    poles in Tenafly, though the poles are located on the
    Borough’s property.7 In April 2000, the plaintiffs asked
    Verizon for permission to attach lechis to its utility poles.
    The plaintiffs said in a sworn statement, which the District
    Court found "credible," that they did not believe any
    municipal ordinance prohibited them from doing so, and
    thus that they did not need the Council’s permission. 
    Id. at 155
    . After the plaintiffs informed Verizon about the
    proclamation, they say, the company’s in-house counsel
    researched whether municipal approval was required and
    advised the plaintiffs that it was not.
    In June 2000 Cablevision, holder of the local cable
    television franchise, volunteered to help the plaintiffs affix
    lechis to Verizon’s utility poles as a community service.
    With the help of Cablevision personnel and equipment, an
    _________________________________________________________________
    7. When some of the events pertinent to this case occurred, the company
    now known as Verizon was named Bell Atlantic Telephone Company.
    
    155 F. Supp. 2d at 154-55
    . For convenience we refer to it as Verizon
    throughout.
    7
    eruv was completed in Tenafly sometime in September 2000.8
    The plaintiffs represent, and the Borough does not disagree,
    that only private funds have supported the eruv and that
    no municipal assistance of any kind will be needed to
    maintain it.
    Borough officials apparently did not learn that an eruv
    was being erected in Tenafly until late August 2000. Mayor
    Moscovitz and Councilman Charles Lipson met with two
    local Jewish leaders on September 14, 2000, to discuss the
    matter. One of the Jewish leaders perceived some of the
    Mayor’s remarks as derogatory toward Orthodox Jews, and
    the meeting was unproductive. Twelve days later, Borough
    Administrator Joseph DiGiacomo, acting at the Mayor’s
    behest, asked Cablevision why it helped attach the lechis
    without the Borough’s permission. According to DiGiacomo,
    the company told him that "a Rabbi" had advised it that
    TEAI had the necessary government approval. 
    Id. at 158
    .
    On October 10, 2000, Mayor Moscovitz and the Council
    directed the Borough Administrator to ask Cablevision to
    remove the lechis from the utility poles"as soon as
    possible." 
    Id.
    On October 23, 2000, Cablevision wrote to the plaintiffs
    and informed them that the Borough instructed it to take
    down the lechis. Cablevision said it would begin complying
    with the Borough’s order within three days unless the
    plaintiffs demonstrated they had municipal approval.
    Counsel for the plaintiffs subsequently negotiated from the
    Borough a thirty-day reprieve to give TEAI an opportunity
    to apply for permission from the Council to maintain the
    eruv. The letter setting out this agreement, sent by the
    plaintiffs’ counsel to Borough Attorney Walter Lesnevich,
    states in part: "I also appreciate your advice that the
    Borough has no specific ordinance covering this matter or
    any particular format for the Eruv Association to follow in
    submitting its request." 
    Id. at 159
    . By the beginning of
    November 2000, neither Lesnevich nor any other Borough
    _________________________________________________________________
    8. According to the District Court, a map of Tenafly, which does not
    appear in the appellate record, "suggests" that the eruv enables the
    plaintiffs to push and carry objects in 35-40% of the Borough. 
    155 F. Supp. 2d at 149
    .
    8
    official had raised the possibility that Ordinance 691 or
    another ordinance might be relevant to the dispute over the
    lechis.
    On November 7, 2000, the plaintiffs filed their application
    with the Borough, asking the Council not to remove or
    order the removal of the lechis. On November 21, 2000, the
    Council decided to hold two hearings to allow members of
    the public to comment on the plaintiffs’ proposal. The
    Council scheduled the first hearing for November 28, 2000,
    and the second for December 12, 2000. Fifty-four members
    of the public, including plaintiff Chaim Book and other eruv
    proponents, spoke at the two hearings. The speakers were
    evenly divided between supporters and opponents of the
    eruv. During the hearings, Council members did not
    express their views until the conclusion of the December 12
    hearing. At that hearing, just before the Council voted on
    the plaintiffs’ application, one Councilman stated that "[t]o
    the best of my knowledge," the Borough had "no ordinance,
    no resolution that says that you cannot hang something
    from a utility pole." Mayor Moscovitz responded by saying
    "[t]here is an ordinance," and Lesnevich then described
    Ordinance 691. This exchange was apparently the first time
    that Borough officials mentioned Ordinance 691 with
    regard to the lechis.
    Shortly after Lesnevich brought Ordinance 691 to the
    Council members’ attention, the Council voted 5-0 to force
    the plaintiffs to remove the lechis.9 The next day, the
    Borough ordered Cablevision to take the lechis off the utility
    poles "as soon as possible." 
    155 F. Supp. 2d at 163
    . The
    plaintiffs responded by suing in the District Court on
    December 15, 2000, alleging violations of the First and
    Fourteenth Amendments, 42 U.S.C. SS 1983 and 1985, and
    the Fair Housing Act ("FHA"), 42 U.S.C. S 3604(a), and
    seeking an injunction barring the Borough from interfering
    with the eruv.10
    _________________________________________________________________
    9. One Council member was not present and thus did not vote.
    10. The plaintiffs did not allege an Equal Protection Clause violation. In
    addition, though not relevant to this appeal, the plaintiffs sought
    compensatory damages and attorneys’ fees.
    9
    Pursuant to Federal Rule of Civil Procedure 65(b), the
    District Court issued a temporary restraining order
    precluding the Borough from disturbing the eruv . Consent
    orders extended the duration of the restraint until the
    Court ruled on the plaintiffs’ request for a preliminary
    injunction. After the parties completed limited discovery,
    the Court held an evidentiary hearing that spanned four
    days, received additional affidavits, and heard oral
    arguments. On August 10, 2001, the Court issued an
    opinion denying the plaintiffs’ request for injunctive relief
    on the ground that they are not reasonably likely to
    succeed on the merits of any of their claims.
    The District Court’s discussion began with the plaintiffs’
    claim that the Borough violated the First Amendment’s Free
    Speech Clause. The Court concluded (albeit without citing
    our decision in Troster v. Pennsylvania State Department of
    Corrections, 
    65 F.3d 1086
     (3d Cir. 1995)) that the act of
    affixing lechis to utility poles is "symbolic speech." 
    155 F. Supp. 2d at 173
    . Next the Court determined that the
    Borough’s utility poles are a nonpublic forum, and that the
    Borough did not discriminate against the plaintiffs’ religious
    viewpoint when it ordered the lechis removed. 
    Id. at 174-80
    .
    The Court acknowledged that the Borough had expressly or
    tacitly permitted various facial violations of Ordinance 691,11
    such as the holiday displays and church directional signs.
    But it distinguished the lechis, reasoning that the other
    materials affixed to the utility poles served commercial or
    functional purposes, were not religious in nature, and were
    not intended to be attached permanently. 
    Id. at 176-78
    .
    Other items frequently affixed to utility poles in violation of
    Ordinance 691, such as the lost animal signs and
    permanently attached house numbers, did not show
    discriminatory enforcement because the Borough said it
    made efforts to remove some of them after the plaintiffs
    sued. 
    Id. at 177-78
    . As for the orange ribbons, the Court
    _________________________________________________________________
    11. The Borough submitted a copy of a separate ordinance that prohibits
    posting signs on utility poles. The Borough has not suggested, either to
    the District Court or to our Court, that its decision to remove the lechis
    was based on that ordinance. Instead, it has maintained throughout this
    litigation that its decision was based only on Ordinance 691. See, e.g.,
    
    155 F. Supp. 2d at 159-60
    .
    10
    stated that, notwithstanding Mayor Moscovitz’s testimony
    and other evidence in the record, it "lack[ed] sufficient
    information" to find that the Borough knew about and
    tacitly approved them. 
    Id. at 177
    . The Court concluded that
    the Borough’s application of the ordinance did not
    discriminate against the plaintiffs’ religious viewpoint, and
    thus their free speech claim could not succeed. 
    Id. at 180
    .
    The District Court also rejected the plaintiffs’ claim that
    the Borough violated the First Amendment’s Free Exercise
    Clause. 
    Id. at 180-86
    . The Court disagreed with the
    plaintiffs’ position that the objective effect of the Borough’s
    decision was to discriminate against religiously motivated
    activity. It noted that, under Lyng v. Northwest Indian
    Cemetery Protective Ass’n, 
    485 U.S. 439
     (1988), the
    Borough can deny access to utility poles on its land for a
    religion-neutral reason even if doing so imposes an
    "incidental" burden on Orthodox Jews’ ability to practice
    their religion. 
    155 F. Supp. 2d at 180-81
    . The Court
    reasoned that because the Borough ordered the lechis
    taken down pursuant to Ordinance 691, "a pre-existing,
    neutral law of general applicability," the issue was
    controlled by the Supreme Court’s ruling in Employment
    Division v. Smith, 
    494 U.S. 872
     (1990), rather than by its
    subsequent decision in Church of the Lukumi Babalu Aye,
    Inc. v. City of Hialeah, 
    508 U.S. 520
     (1993). 
    155 F. Supp. 2d at 181
    . The Court did not consider whether its earlier
    conclusion that Borough officials chose not to enforce
    Ordinance 691 with respect to some secularly motivated
    commercial and functional postings, see 
    id. at 177-80
    ,
    affected the free exercise analysis. Under Smith , the District
    Court reasoned, the Borough Council’s decision to enforce
    Ordinance 691 against the eruv had an objectively neutral
    effect that did not implicate the Free Exercise Clause. 
    Id.
    The Court thought, however, that the Council members’
    improper subjective motivations nonetheless necessitated
    strict scrutiny under Lukumi. 
    Id. at 183
    . It found that,
    while the Council members had no religious animosity, they
    acted because of the "constitutionally impermissible" fear
    that the eruv would facilitate the formation of an insular
    Orthodox Jewish "community within a community" in
    Tenafly. 
    Id. at 182-83
    . Nevertheless, no Free Exercise
    11
    Clause violation occurred because the Council members’
    decision was "narrowly tailored to further their interest in
    avoiding the appearance of an Establishment Clause
    concern." 
    Id.
     at 184 n.26 (emphasis added).
    Finally, the Court held that the plaintiffs lack standing to
    sue under the FHA because the Borough did not "make
    unavailable or deny" housing within the meaning of the
    relevant provision, 42 U.S.C. S 3604(a). 
    Id. at 186-90
    . Every
    case finding a violation of S 3604(a), the District Court
    noted, involved conduct that "directly affected the
    availability of housing," whereas the plaintiffs seek a "non-
    housing use of municipal property." 
    Id. at 187
    .
    The Court concluded that, because the plaintiffs were not
    reasonably likely to succeed on any of their claims,
    injunctive relief was not appropriate. The plaintiffs timely
    appealed, giving us jurisdiction pursuant to 28 U.S.C.
    S 1292(a)(1),12 and we granted their request for an
    injunction prohibiting removal of the lechis pending our
    decision. Tenafly Eruv Ass’n, Inc. v. Borough of Tenafly, No.
    01-3301 (3d Cir. Sept. 19, 2001) (order).
    II. Standard of Review
    We review the District Court’s ultimate decision to deny
    a preliminary injunction for abuse of discretion. See Dam
    Things from Denmark, a/k/a Troll Co. ApS, v. Russ Berrie &
    Co., 
    290 F.3d 548
    , 556 (3d Cir. 2002); St. Thomas-St. John
    Hotel & Tourism Ass’n, Inc. v. Virgin Islands, 
    218 F.3d 232
    ,
    235 (3d Cir. 2000). But "‘any determination that is a
    prerequisite to the issuance of an injunction . . . is reviewed
    according to the standard applicable to that particular
    determination."’ Southco, Inc. v. Kanebridge Corp., 
    258 F.3d 148
    , 150-51 (3d Cir. 2001) (quoting Am. Tel. & Tel. Co. v.
    Winback and Conserve Program, Inc., 
    42 F.3d 1421
    , 1427
    (3d Cir. 1994)). Thus "we exercise plenary review over the
    District Court’s conclusions of law and its application of the
    law to the facts."’ Id. at 151 (quoting Duraco Prods., Inc. v.
    Joy Plastic Enters., Ltd., 
    40 F.3d 1431
    , 1438 (3d Cir.
    1994)).
    _________________________________________________________________
    12. The District Court had jurisdiction under 28 U.S.C. SS 1331 and
    1343.
    12
    Ordinarily we will not disturb the factual findings
    supporting the disposition of a preliminary injunction
    motion in the absence of clear error. See Fed. R. Civ. P.
    52(a); Novartis Consumer Health, Inc. v. Johnson & Johnson-
    Merck Consumer Pharm. Co., 
    290 F.3d 578
    , 586 (3d Cir.
    2002); S. Camden Citizens in Action v. N.J. Dep’t of Envtl.
    Protection, 
    274 F.3d 771
    , 777 (3d Cir. 2001). This case,
    however, involves First Amendment claims, and "the
    reaches of the First Amendment are ultimately defined by
    the facts it is held to embrace." Hurley v. Irish-American
    Gay, Lesbian & Bisexual Group of Boston, 
    515 U.S. 557
    ,
    567 (1995). Therefore, we have "a constitutional duty to
    conduct an independent examination of the record as a
    whole," and we cannot defer to the District Court’s factual
    findings unless they concern witnesses’ credibility. Id.; Bose
    Corp. v. Consumers Union of United States, Inc., 
    466 U.S. 485
    , 499, 510-11 (1984); Christ’s Bride Ministries, Inc. v.
    Southeastern Pa. Transp. Auth., 
    148 F.3d 242
    , 247 (3d Cir.
    1998). Accordingly, we examine independently the facts in
    the record and "draw our own inferences" from them.
    Christ’s Bride, 
    148 F.3d at 247
    .
    III. Discussion
    Four factors governed the District Court’s decision
    whether to issue a preliminary injunction barring the
    Borough from removing the eruv. To obtain an injunction,
    the plaintiffs had to demonstrate (1) that they are
    reasonably likely to prevail eventually in the litigation and
    (2) that they are likely to suffer irreparable injury without
    relief. See S. Camden Citizens, 
    274 F.3d at 777
    ; Adams v.
    Freedom Forge Corp., 
    204 F.3d 475
    , 484 (3d Cir. 2000). If
    these two threshold showings are made the District Court
    then considers, to the extent relevant, (3) whether an
    injunction would harm the Borough more than denying
    relief would harm the plaintiffs and (4) whether granting
    relief would serve the public interest. See S. Camden
    Citizens, 
    274 F.3d at 777
    ; Freedom Forge, 
    204 F.3d at 484
    .
    Because the District Court ended its analysis after
    concluding that the plaintiffs did not show that their claims
    are reasonably likely to succeed, see 
    155 F. Supp. 2d at 171, 191
    , our discussion focuses on that factor. Disposing
    13
    of the plaintiffs’ FHA claim in the margin,13 we will first
    _________________________________________________________________
    13. We can dispense quickly with the plaintiffs’ contention that they have
    a valid FHA claim. One necessary element of a cause of action under the
    FHA is that the plaintiffs must be "aggrieved person[s]," 42 U.S.C.
    S 3613(a)(1)(A), which in this context means victims of "a discriminatory
    housing practice," 
    id.
     S 3602, that"make[s] unavailable or den[ies]"
    housing to them based on their religion. Id.S 3604(a). Some of the
    plaintiffs lived in the Borough before the eruv was established. 
    155 F. Supp. 2d at 188
    . Therefore, while the plaintiffs claim that the Borough
    wants to remove the eruv to discourage Orthodox Jews from moving into
    town, they do not claim that removing the eruv would make housing
    within the Borough "unavailable" to them. Instead, they argue that
    removing the eruv would make their living in the Borough much less
    desirable. But they concede that the Borough’s decision did not directly
    affect anyone’s current or future home. To our knowledge, no court has
    stretched the "make unavailable or deny" language of S 3604(a) to
    encompass actions that both (1) do not actually make it more difficult (as
    opposed to less desirable) to obtain housing and (2) do not directly
    regulate or zone housing or activities within the home. See, e.g., LeBlanc-
    Sternberg v. Fletcher, 
    67 F.3d 412
    , 424 (2d Cir. 1995) (stating that the
    pertinent language "has been interpreted to reach a wide variety of
    discriminatory housing practices, including discriminatory zoning
    restrictions"); South-Suburban Hous. Ctr. v. Greater S. Suburban Bd. of
    Realtors, 
    935 F.2d 868
    , 882 (7th Cir. 1991) (stating that the relevant
    language of S 3604(a) applies to "actions by individuals or governmental
    units which directly affect the availability of housing") (internal quotation
    marks omitted). We believe that expanding S 3604(a) as the plaintiffs
    suggest is unwarranted, as it would "create an FHA claim in every
    circumstance where a religious group is denied a request to use
    municipal property to make an area more appealing for the private
    practice of their religion," even if the municipal action has nothing to do
    with housing. 
    155 F. Supp. 2d at 189
    .
    We note, however, that we do not agree with the Borough’s contention
    --and the District Court’s acquiescence, if its use of the word "standing"
    was meant to signify a perceived lack of subject-matter jurisdiction over
    the plaintiffs’ FHA claim--that the issue is jurisdictional. When the
    presence or absence of a cause of action depends on how statutory
    language is interpreted (as the plaintiffs’ FHA claim does), the absence of
    a valid statutory cause of action does not preclude jurisdiction unless
    the claim is frivolous or a transparent attempt to manufacture federal-
    court jurisdiction where none existed. See Verizon Md., Inc. v. Pub. Serv.
    Comm’n of Md., 
    122 S. Ct. 1753
    , 1758-59 (2002); Steel Co. v. Citizens for
    a Better Env’t, 
    523 U.S. 83
    , 89 (1998); Bell v. Hood, 
    327 U.S. 678
    , 682-
    85 (1946). Because the plaintiffs’ FHA claim is neither, we have
    14
    consider the plaintiffs’ free speech claim and then discuss
    their free exercise claim.14
    A. The Free Speech Claim
    The First Amendment’s Free Speech Clause provides that
    "Congress shall make no law . . . abridging the freedom of
    speech." U.S. Const. amend. I. "Speech" is not construed
    literally, or even limited to the use of words. Constitutional
    protection is afforded not only to speaking and writing, but
    also to some nonverbal acts of communication, viz.,
    "expressive conduct" (or "symbolic speech"). Affixing lechis
    to utility poles does not involve the use of words, so the
    plaintiffs’ behavior is protected by the Free Speech Clause
    only if it constitutes expressive conduct.15
    _________________________________________________________________
    jurisdiction to consider it. See Growth Horizons, Inc. v. Delaware County,
    
    983 F.2d 1277
    , 1280-84 (3d Cir. 1993) (holding that district court’s
    determination that defendant did not "make unavailable or deny"
    housing under S 3604(f) was "a judgment on the merits rather than a
    jurisdictional decision" because the plaintiff’s claim, though ultimately
    unsuccessful, was not frivolous).
    14. Citing Elber v. City of Newark, 
    256 A.2d 44
     (N.J. 1969), the plaintiffs
    attempt to raise a claim under New Jersey law. Presumably because the
    plaintiffs did not include this claim in their complaint, the District Court
    did not discuss it. We shall do likewise.
    15. The Borough failed to contend in its brief that the act of affixing
    lechis to utility poles is not "speech" within the meaning of the First
    Amendment. Ordinarily we avoid addressing issues not raised in a
    party’s opening brief. See, e.g., Kirschbaum v. WRGSB Associates, 
    243 F.3d 145
    , 151 n.1 (3d Cir. 2001). However, "[w]hen an issue or claim is
    properly before the court, the court is not limited to the particular legal
    theories advanced by the parties, but rather retains the independent
    power to identify and apply the proper construction of governing law."
    Kamen v. Kemper Fin. Servs., Inc., 
    500 U.S. 90
    , 99 (1991). Thus we "may
    consider an issue ‘antecedent to . . . and ultimately dispositive of ’ the
    dispute before [us], even an issue the parties fail to identify and brief."
    United Nat’l Bank v. Indep. Ins. Agents, 
    508 U.S. 439
    , 447 (1993)
    (quoting Arcadia v. Ohio Power Co., 
    498 U.S. 73
    , 77 (1990)) (omission in
    original). Whether the Free Speech Clause applies is a threshold question
    necessary to a proper analysis of the parties’ arguments. Therefore, we
    requested that the parties provide supplemental memoranda on the
    issue, at which time the Borough initiated its argument that no
    protected expression is involved here.
    15
    Conduct is protected by the First Amendment when"the
    nature of [the] activity, combined with the factual context
    and environment in which it was undertaken," shows that
    the "activity was sufficiently imbued with elements of
    communication to fall within the [First Amendment’s]
    scope." Spence v. Washington, 
    418 U.S. 405
    , 409-10 (1974);
    Troster v. Pa. State Dep’t of Corrections, 
    65 F.3d 1086
    , 1090
    (3d Cir. 1995). Context is crucial to evaluating an
    expressive conduct claim because "the context may give
    meaning to the symbol" or act in question. Spence, 
    418 U.S. at 410
    .
    Until 1995, the Supreme Court determined whether
    speech is "sufficiently imbued with elements of
    communication" by asking "whether ‘[a]n intent to convey a
    particularized message was present, and [whether] in the
    surrounding circumstances the likelihood was great that
    the message would be understood by those who viewed it."’
    Texas v. Johnson, 
    491 U.S. 397
    , 404 (1989) (quoting
    Spence, 
    418 U.S. at 410-11
    ). Applying this two-prong test
    (the "Spence-Johnson test"), the Supreme Court held that
    the First Amendment shelters certain forms of nonverbal
    communication. For instance, Johnson held that burning
    an American flag as part of a demonstration against the
    Reagan Administration’s policies that coincided with the
    1984 Republican Party convention was "speech" because its
    "expressive, overtly political nature" was"both intentional
    and overwhelmingly apparent" to the protestors’ audience.
    
    491 U.S. at 399, 406
    . Similarly, Spence held that attaching
    a peace symbol to an American flag and displaying the
    "peace flag" upside down was protected expression. The
    actor "testified that he put a peace symbol on the flag and
    displayed it to public view as a protest against the invasion
    of Cambodia and the killings at Kent State University,
    events which occurred a few days prior to his arrest," and
    "it would have been difficult for the great majority of
    citizens to miss the drift of appellant’s point at the time
    that he made it." 
    418 U.S. at 408, 410
    . Additional types of
    nonverbal communication have also been deemed
    constitutionally protected. See, e.g., Schacht v. United
    States, 
    398 U.S. 58
    , 62-63 (1970) (wearing United States
    military uniforms as part of theatrical presentation
    opposing Vietnam War); Tinker v. Des Moines Indep.
    16
    Community Sch. Dist., 
    393 U.S. 503
    , 505-06 (1969)
    (wearing black armband at school to protest Vietnam War);
    W. Va. Bd. of Educ. v. Barnette, 
    319 U.S. 624
    , 632 (1943)
    (saluting the American flag to show allegiance to the United
    States); Stromberg v. California, 
    283 U.S. 359
    , 369 (1931)
    (displaying red flag to express opposition to organized
    government). In other cases, the Court assumed, without
    deciding, that the nonverbal political demonstrations at
    issue implicated the First Amendment. Clark v. Community
    for Creative Non-Violence, 
    468 U.S. 288
    , 293 (1984)
    (sleeping in a public park in front of the White House and
    on the Washington Mall, in the middle of winter, to protest
    homelessness); United States v. O’Brien, 
    391 U.S. 367
    , 376
    (1968) (burning Selective Service registration certificate on
    courthouse steps to protest war).16
    The Supreme Court’s unanimous 1995 opinion, Hurley v.
    Irish-American Gay, Lesbian and Bisexual Group of Boston,
    
    515 U.S. 557
     (1995), modified somewhat the test for
    determining when conduct constitutes "speech." In Hurley,
    a group of gays, lesbians, and bisexuals of Irish ancestry
    sued under a state public accommodations law barring
    discrimination on the basis of sexual orientation in an
    attempt to gain admission to a private St. Patrick’s Day
    parade in which an array of disparate groups participated.
    While the parade organizers asserted their First
    Amendment right to shape the content of their speech, the
    _________________________________________________________________
    16. Some Justices have viewed other examples of nonverbal political
    protest as sufficiently communicative to receive First Amendment
    protection. See Brown v. Louisiana, 
    383 U.S. 131
    , 142 (1966) (plurality
    opinion) (finding that black citizens who silently assembled in public
    library to protest segregated public facilities engaged in expressive
    conduct); Garner v. Louisiana, 
    368 U.S. 157
    , 201 (1961) (Harlan, J.,
    concurring in the judgment) (concluding that black persons who sat at
    "white" lunch counters to protest segregated dining facilities were
    engaging in symbolic speech and that their disturbing-the-peace
    convictions, which the majority reversed on insufficient evidence
    grounds, violated the First Amendment). In addition, the Supreme Court
    recently recognized a symbolic speech claim in a different context. See
    City of Erie v. Pap’s A.M., 
    529 U.S. 277
    , 289 (2000) (plurality opinion)
    (stating summarily that nude erotic dancing is "expressive conduct,"
    though "it falls only within the outer ambit of the First Amendment’s
    protection").
    17
    plaintiffs maintained that the organizers had no First
    Amendment interest because their lack of selectivity in
    accepting participants made it impossible for spectators to
    discern a specific message. Rejecting the plaintiffs’
    contention, the Supreme Court explained that "a narrow,
    succinctly articulable message is not a condition of
    constitutional protection, which if confined to expressions
    conveying a ‘particularized message,’ would never reach the
    unquestionably shielded painting of Jackson Pollak, music
    of Arnold Schoenberg, or Jabberwocky verse of Lewis
    Carroll."17 Id. at 569 (quoting Spence, 
    418 U.S. at 411
    ).
    By establishing that "a private speaker does not forfeit
    constitutional protection simply by combining multifarious
    voices, or by failing to edit their themes to isolate an exact
    message as the exclusive subject matter of the speech,"
    Hurley eliminated the "particularized message" aspect of the
    Spence-Johnson test. Id. at 569-70. The Hurley Court had
    no need to formulate a new test, however, because--unlike
    conduct that is not normally communicative--parades are
    inherently expressive. Id. at 568 ("Parades are thus a form
    of expression, not just motion, and the inherent
    expressiveness of marching to make a point explains our
    cases involving protest marches."). Thus Hurley left open
    how courts should evaluate symbolic speech claims.
    Before Hurley, we treated the Spence-Johnson factors as
    prerequisites for conduct to be deemed expressive. See
    Steirer by Steirer v. Bethlehem Area Sch. Dist., 
    987 F.2d 989
    , 995, 997 (3d Cir. 1993) (holding that participating in
    community service is not expressive conduct). But after
    Hurley, our decision in Troster v. Pennsylvania State
    Department of Corrections, 
    65 F.3d 1086
     (3d Cir. 1995),
    concluded that Spence (and, implicitly, Johnson as well) set
    signposts rather than requirements, and that its two factors
    can no longer be viewed as the only criteria. See 
    id.
     at 1090
    & n.1. Because Spence "contained no language of
    necessity," we adopted the following standard: conduct is
    _________________________________________________________________
    17. The Hurley Court proceeded to hold that applying the public
    accommodations law to force the parade organizers to include the
    plaintiffs violated the organizers’ First Amendment right to select the
    components of their message. Id. at 579.
    18
    expressive if, "considering ‘the nature of[the] activity,
    combined with the factual context and environment in
    which it was undertaken,’ we are led to the conclusion that
    the ‘activity was sufficiently imbued with elements of
    communication to fall within the scope of the First and
    Fourteenth Amendments."’18Id. at 1090 (quoting Spence,
    
    418 U.S. at 409-10
    ) (alteration in original). We emphasized
    that this "is a fact-sensitive, context-dependent inquiry,"
    and that the putative speaker bears the burden of proving
    that his or her conduct is expressive. 
    Id.
    We then applied this formulation to reject a state
    corrections officer’s claim that a regulation mandating that
    each corrections officer wear an American flag patch on his
    uniform’s right shirt-sleeve, with the star field facing his
    rear, violated the First Amendment by compelling him to
    engage in expressive conduct. Id. at 1088. The officer
    believed that compulsory display debases the flag and that
    "displaying the flag with its star field to the rear signifies
    cowardice and retreat from the principles for which the flag
    stands." Id. Though we recognized the strength of the
    officer’s convictions, we determined that he did not show
    that the act of wearing a flag patch was sufficiently
    communicative to receive First Amendment protection, as
    he did not present "evidence to support his otherwise bare
    _________________________________________________________________
    18. Outside our Circuit, courts continue to view the Spence-Johnson test
    as the governing standard for determining whether conduct constitutes
    protected expression. See, e.g., Gun Owners’ Action League, Inc. v. Swift,
    
    284 F.3d 198
    , 211 (1st Cir. 2002); Littlefield v. Forney Indep. Sch. Dist.,
    
    268 F.3d 275
    , 283 (5th Cir. 2001); Hutchins v. District of Columbia, 
    188 F.3d 531
    , 548 (D.C. Cir. 1999); Colacurcio v. City of Kent, 
    163 F.3d 545
    ,
    549 n.1 (9th Cir. 1998); Stephenson v. Davenport Cmty. Sch. Dist., 
    110 F.3d 1303
    , 1307 n.4 (8th Cir. 1997); United States v. Lewis, 
    2002 WL 31055185
    , *8 (S.D. W. Va. Sept. 11, 2002); Daly v. Harris, 
    215 F. Supp. 2d 1098
    , 1108 (D. Haw. 2002); Isaacs ex rel. Isaacs v. Bd. of Educ., 
    40 F. Supp. 2d 335
    , 336 (D. Md. 1999); Al-Almin v. City of New York, 
    979 F. Supp. 168
    , 172 (E.D.N.Y. 1997); Fighting Finest, Inc. v. Bratton, 
    898 F. Supp. 192
    , 195 (S.D.N.Y. 1995); Gallo v. County of Sonoma, 
    120 Cal. Rptr. 2d 550
    , 569 (Cal. Ct. App. 2002), State v. Machholz, 
    574 N.W.2d 415
    , 419-20 (Minn. 1998); Binkowski v. State, 
    731 A.2d 64
    , 70 (N.J.
    Super. Ct. App. Div. 1999); State v. Janssen, 
    580 N.W.2d 260
    , 266 n.11
    (Wis. 1998); State v. Berrill, 
    474 S.E.2d 508
    , 516 (W. Va. 1996).
    19
    assertion that the flag patch regulation compels expressive
    conduct." 
    Id.
     at 1091 n.4.
    Our discussion in Troster focused on two inquiries. First,
    we examined whether the officer intended subjectively (i.e.,
    actually intended) for his conduct to communicate to
    persons whom he expected to observe it (i.e., his intended
    audience). We determined that there was no proof that his
    conduct was "demonstrative of an attitude or belief" or that
    he "actually assert[ed] anything to anyone." Id. at 1091-92.
    Second, we considered whether observers understood the
    message the officer intended his conduct to convey. The
    record contained no evidence that "observers would likely
    understand the patch or the wearer to be telling them
    anything about the wearers’ beliefs" or "that the flag patch
    on the correctional officers’ uniform will relay any message
    (ideological or otherwise) to anyone." Id. at 1091-92
    (emphases in original). Therefore, the officer’s compelled
    speech claim failed because he did not show that the
    conduct in which he was forced to engage was expressive.
    Our emphasis in Troster on the putative speaker’s burden
    of proving that his conduct is "sufficiently imbued with
    elements of communication" is important to our resolution
    of the plaintiffs’ expressive conduct claim in this case. If the
    putative speaker’s burden were "limited to ‘the
    advancement of a plausible contention’ that [his or her]
    conduct is expressive"--a view espoused by a plurality of
    the D.C. Circuit but rejected by the Supreme Court in Clark
    --the result "would be to create a rule that all conduct is
    presumptively expressive." Clark, 
    468 U.S. at
    293 n.5. Such
    a rule would be inconsistent with the Supreme Court’s
    repeated admonition that "[w]e cannot accept the view that
    an apparently limitless variety of conduct can be labeled
    ‘speech."’ O’Brien, 
    391 U.S. at 376
    ; see also Johnson, 
    491 U.S. at 404
    ; Spence, 
    418 U.S. at 409
    . Therefore, as we
    stressed in Troster, 
    65 F.3d at 1091-92
    , and as the
    Supreme Court held in Clark, "it is the obligation of the
    person desiring to engage in assertedly expressive conduct
    to demonstrate that the First Amendment even applies."
    Clark, 
    468 U.S. at
    293 n.5.
    With this background as context, we conclude that the
    plaintiffs have not met their burden of showing that affixing
    20
    lechis to utility poles is "sufficiently imbued with elements
    of communication" to be deemed expressive conduct. The
    record indicates that the lechis were attached for the benefit
    of other Orthodox Jews, not the general public. Therefore,
    if the plaintiffs’ conduct is expressive, their intended
    audience is other Orthodox Jews. But the plaintiffs have
    not introduced evidence that the lechis are meant to
    demonstrate a belief or assert anything to Orthodox Jews or
    that Orthodox Jews "likely understand" the eruv "to be
    telling them anything," i.e., that they discern "any message
    (ideological or otherwise)" from the lechis .19 Troster, 
    65 F.3d at 1091
     (emphases in original). Instead, on the record
    before us, it appears that the eruv serves a purely
    functional, non-communicative purpose indistinguishable,
    for free speech purposes, from that of a fence surrounding
    a yard or a wall surrounding a building.
    Rather than "actually assert[ing] anything to anyone," 
    id. at 1092
    , it seems that the eruv simply demarcates the
    space within which certain activities otherwise forbidden on
    the Sabbath are allowed. Plaintiff Chaim Book described
    the eruv as a "boundary" that "requires physical
    demarcation," a function historically achieved by"rop[ing]
    an area off." Similarly, at oral argument counsel for the
    plaintiffs told us that the lechis "replace[ ] the pole[s] that
    would be used prior to the time there were telephone poles"
    to designate the eruv’s boundaries. While the plaintiffs
    describe the eruv in functional terms, explaining that it
    establishes an area within which Orthodox Jews may
    engage in certain otherwise impermissible activities, they
    offer no evidence that it communicates anything. The only
    evidence the plaintiffs introduced with respect to the
    religious significance of the eruv was the affidavit of Rabbi
    Hershel Schachter of Yeshiva University, an expert on
    Orthodox Jewish law. Rabbi Schachter explained that the
    eruv enables couples with young children and persons who
    use wheelchairs to attend synagogue on the Sabbath. He
    did not, however, suggest that the Orthodox Jews who affix
    _________________________________________________________________
    19. As we stated above, see supra note 15, it appears that until we
    requested briefing on the issue the parties merely assumed that the
    lechis are protected by the First Amendment.
    21
    lechis intend to send any message thereby, or that the eruv
    conveys any message to Orthodox Jews.
    Further, there is no evidence that Orthodox Jews receive
    a message or ascertain the eruv’s boundaries by looking at
    the lechis. To the contrary, Rabbi Howard Jachter, speaking
    on behalf of the TEAI, said that "most Orthodox Jews do
    not . . . would not know how to make an eruv, wouldn’t see
    where the eruv is, how it is. A rabbi wouldn’t know how it
    is." Even plaintiff Chaim Book, who is obviously familiar
    with the eruv’s boundaries and the lechis’ locations, said, "I,
    who know some of the poles have lechis, have a hard time
    recognizing the lechi on the pole by just looking at it." In
    addition, plaintiffs’ complaint states that "the eruv is not a
    religious symbol." Thus there is no evidence contradicting
    the Borough’s assertion at oral argument--which the
    plaintiffs did not dispute--that Orthodox Jews learn the
    eruv’s boundaries by word of mouth from the persons
    charged with erecting and inspecting it.
    Even if the plaintiffs had introduced evidence that the
    lechis serve a boundary function, that would be insufficient
    to prove they are "sufficiently imbued with elements of
    communication to fall within the scope of the First and
    Fourteenth Amendments." Troster, 
    65 F.3d at 1090
    (internal quotation marks omitted). All boundary lines
    delineate the realms within which certain activities are or
    are not allowed. For instance, the invisible boundary
    between Nevada and Utah separates an area where
    gambling is legal from one where it is not. A homeowner’s
    fence demarcates where his neighbor’s garden must stop.
    The walls of a synagogue delineate the space where
    congregational worship takes place. But geographical
    boundary lines, fences, and walls are simply not protected
    expression in the absence of evidence that some"attitude
    or belief," Troster, 
    65 F.3d at 1091
    , is conveyed or received
    from them. Cf. Dallas v. Stanglin, 
    490 U.S. 19
    , 25 (1989)
    ("It is possible to find some kernel of expression in almost
    every activity a person undertakes--for example, walking
    down the street or meeting one’s friends at a shopping mall
    --but such a kernel is not sufficient to bring the activity
    within the protection of the First Amendment."); Pro v.
    Donatucci, 
    81 F.3d 1283
    , 1293 (3d Cir. 1996) (Roth, J.,
    22
    dissenting) (noting that "expression and communication are
    the crucial attributes of speech," that "[n]owhere is this
    stress on expression and communication more clear than
    in the Court’s approach to speech that falls outside the
    traditional domain of the spoken or written word," and that
    "[t]he classic examples of conduct-as-speech all contain
    patently expressive messages."). Otherwise, the act of
    constructing houses of worship would implicate the Free
    Speech Clause, whereas courts consistently analyze the
    constitutionality of zoning regulations limiting such
    construction under the Free Exercise Clause, not the Free
    Speech Clause. See, e.g., City of Boerne v. Flores, 
    521 U.S. 507
    , 534 (1997); Messiah Baptist Church v. County of
    Jefferson, 
    859 F.2d 820
    , 823-26 (10th Cir. 1988);
    Lakewood, Ohio Congregation of Jehovah’s Witnesses, Inc.
    v. City of Lakewood, 
    699 F.2d 303
    , 307-08 (6th Cir. 1983);
    Church of Jesus Christ of Latter-Day Saints v. Jefferson
    County, 
    741 F. Supp. 1522
    , 1527-34 (N.D. Ala. 1990); cf.
    Congregation Kol Ami v. Abington Township, 
    2002 WL 31312280
     (3d Cir. Oct. 16, 2002). Moreover, if solely the
    act of erecting a wall separating the interior of a building
    from the secular world constituted "speech," every religious
    group that wanted to challenge a zoning regulation
    preventing them from constructing a house of worship
    could raise a "hybrid" rights claim triggering strict scrutiny,
    see Employment Division v. Smith, 
    494 U.S. 872
    , 881-82
    (1990),20 a notion so astonishing that we are unaware of
    any court--or even any law review article--that has
    suggested it.
    Plaintiffs maintain that, although the eruv is functional,
    it is also expressive, just as the 18-foot Chanukah menorah
    _________________________________________________________________
    20. As explained in more detail below, Smith held that the Free Exercise
    Clause offers no protection when a neutral, generally applicable law
    incidentally burdens religious practice, with a possible exception for
    "hybrid" rights situations in which both the right to free exercise of
    religion and another constitutional right are implicated. 
    494 U.S. at 879, 881-82
    . If the law imposing the burden on religious freedom is either not
    neutral or not generally applicable, however, it violates the First
    Amendment unless it satisfies strict scrutiny (i.e., unless it is narrowly
    tailored to advance a compelling government interest). See Church of the
    Lukumi Babalu Aye, Inc. v. City of Hialeah, 
    508 U.S. 520
    , 546 (1993).
    23
    in Allegheny County v. Greater Pittsburgh ACLU , 
    492 U.S. 573
     (1989), was expressive even though the functional
    purpose of menorahs is to hold candles. To the extent that
    the plaintiffs’ point is that functionality and expression are
    "not mutually exclusive," we do not disagree; things
    ordinarily used for functional purposes can be used for
    communicative purposes as well. Name.Space, Inc. v.
    Network Solutions, Inc., 
    202 F.3d 573
    , 586 (2d Cir. 2000)
    (concluding that Internet domain names are ordinarily
    functional, but can be expressive if they contain a message,
    e.g., ".jones_for_president"). But there is no evidence that
    the eruv is an example of such overlapping purposes,
    whereas there was ample evidence to that effect in
    Allegheny. As part of a holiday display that stood at the
    entrance to a government building and included a 45-foot
    Christmas tree, the 18-foot menorah was both intended
    and understood to express "a recognition that Christmas is
    not the only traditional way of observing the winter-holiday
    season" and "an acknowledgment of Chanukah as a
    contemporaneous alternative tradition." Allegheny, 
    492 U.S. at 617-18
    .
    In sharp contrast here, there is no evidence that
    Orthodox Jews intend or understand the eruv to
    communicate any idea or message. Rather, the evidence
    shows that the eruv--like a fence around a house or the
    walls forming a synagogue--serves the purely functional
    purpose of delineating an area within which certain
    activities are permitted.
    We also reject the plaintiffs’ contention that the eruv may
    be deemed expressive simply because some residents of
    Tenafly who are not Orthodox Jews discern various
    unintended messages emanating from it, notwithstanding
    that these persons would not be intended recipients even if
    the lechis were meant to send a message. To accept this
    position would mean that whether conduct is expressive
    depends entirely on how observers perceive it--even if the
    actor had no communicative intent, and even if the actor
    disapproves of the message (or messages) discerned by the
    observers. See Troster, 
    65 F.3d at 1092
     (noting the
    difference between an observer’s independent inference
    from an actor’s behavior and an observer’s receipt of a
    24
    nonverbal message intentionally sent by the actor); Peter
    Meijes Tiersma, Nonverbal Communication and the Freedom
    of "Speech", 
    1993 Wis. L. Rev. 1525
    , 1553, 1561-62 (stating
    that nonverbal conduct is expressive only if it involves "a
    conscious transfer of information," i.e.,"an attempt to
    communicate" by the actor).
    Finally, we cannot accept the plaintiffs’ argument that, by
    analogy to the protection afforded newsracks, the eruv is
    protected under the First Amendment. Relying on City of
    Lakewood v. Plain Dealer Publ’g Co., 
    486 U.S. 750
     (1988),
    the plaintiffs insist that, just as newsracks facilitate the
    distribution of newspapers, the eruv facilitates religious
    worship.21 But City of Lakewood did not treat newsracks as
    protected based on the sweeping rationale that they
    facilitate speech, but rather because they are inextricably
    intertwined with speech. 
    Id. at 768
     ("The actual ‘activity’ at
    issue here is the circulation of newspapers, which is
    constitutionally protected."). Unlike a newsrack, which
    facilitates the paradigm of communication (the sale of
    newspapers), there is no evidence that the eruv is
    inextricably linked to a communicative activity. Instead, the
    record shows that the eruv exists solely to designate the
    boundaries within which Orthodox Jews can engage in
    certain activities on the Sabbath. Therefore, City of
    Lakewood does not support the plaintiffs’ position that the
    non-communicative act of delineating an area constitutes
    protected expression.
    In sum, as in Troster, the plaintiffs offer nothing more
    than a "bare assertion" that their conduct is expressive.22
    
    65 F.3d at
    1091 n.4. Because this does not satisfy the
    plaintiffs’ burden of proof, their free speech claim fails.23
    _________________________________________________________________
    21. City of Lakewood, the Supreme Court sustained a facial challenge to
    an ordinance granting the mayor "unfettered discretion" to grant or deny
    permits to place newsracks on public property. 
    486 U.S. at 772
    .
    22. Our holding is limited to the record in this case and does not
    necessarily preclude the possibility that a party in another case might
    introduce evidence showing that attaching lechis to utility poles is
    conduct protected by the Free Speech Clause.
    23. Accordingly, the plaintiffs cannot assert a"hybrid rights" claim under
    the Free Exercise Clause. See infra note 26.
    25
    B. The Free Exercise Claim
    1. Determining the appropriate level of scrutiny
    The Free Exercise Clause, which binds the Borough
    pursuant to the Fourteenth Amendment, see Cantwell v.
    Connecticut, 
    310 U.S. 296
    , 303 (1940), provides that
    "Congress shall make no law . . . prohibiting the free
    exercise [of religion]." U.S. Const. amend. I. Depending on
    the nature of the challenged law or government action, a
    free exercise claim can prompt either strict scrutiny or
    rational basis review.24
    If a law is "neutral" and "generally applicable," and
    burdens religious conduct only incidentally, the Free
    Exercise Clause offers no protection. Employment Div. v.
    Smith, 
    494 U.S. 872
    , 879 (1990).25 Smith held that the Free
    Exercise Clause did not require a state to exempt the
    ingestion of peyote during a Native American Church
    ceremony from its neutral, generally applicable prohibition
    on using that drug. 
    Id. at 882
    . On the other hand, if the
    law is not neutral (i.e., if it discriminates against religiously
    motivated conduct) or is not generally applicable (i.e., if it
    proscribes particular conduct only or primarily when
    religiously motivated), strict scrutiny applies and the
    burden on religious conduct violates the Free Exercise
    Clause unless it is narrowly tailored to advance a
    compelling government interest.26Church of the Lukumi
    _________________________________________________________________
    24. To survive strict scrutiny, a challenged government action must be
    narrowly tailored to advance a compelling government interest, whereas
    rational basis review requires merely that the action be rationally related
    to a legitimate government objective. As explained below, an intermediate
    level of scrutiny may apply in the public employment context.
    25. Smith involved a criminal law, but its rule also applies in the context
    of non-criminal laws and regulations. See Church of the Lukumi Babalu
    Aye, Inc. v. City of Hialeah, 
    508 U.S. 520
    , 531 (1993); Fraternal Order of
    Police v. City of Newark, 
    170 F.3d 359
    , 363-64 (3d Cir. 1999).
    26. Strict scrutiny may also apply when a neutral, generally applicable
    law incidentally burdens rights protected by "the Free Exercise Clause in
    conjunction with other constitutional protections, such as freedom of
    speech and of the press, or the rights of parents . . . to direct the
    education of their children," Smith, 
    494 U.S. at 881
     (citations omitted),
    but the plaintiffs do not assert such a "hybrid rights" claim.
    26
    Babalu Aye, Inc. v. City of Hialeah, 
    508 U.S. 520
    , 532, 542
    (1993).
    Further, the Free Exercise Clause’s mandate of neutrality
    toward religion prohibits government from "deciding that
    secular motivations are more important than religious
    motivations." Fraternal Order of Police v. City of Newark,
    
    170 F.3d 359
    , 365 (3d Cir. 1999). Accordingly, in situations
    where government officials exercise discretion in applying a
    facially neutral law, so that whether they enforce the law
    depends on their evaluation of the reasons underlying a
    violator’s conduct, they contravene the neutrality
    requirement if they exempt some secularly motivated
    conduct but not comparable religiously motivated conduct.
    See Lukumi, 
    508 U.S. at 537
    ; Smith, 
    494 U.S. at 884
    ;
    Bowen v. Roy, 
    476 U.S. 693
    , 708 (1986) (plurality opinion);
    Fraternal Order of Police, 
    170 F.3d at 364-65
    . Thus in
    Lukumi the Supreme Court invalidated an ordinance
    "punishing ‘[w]hoever . . . unnecessarily . . . kills any
    animal,’ " where state and local officials interpreted the
    ordinance to ban animal sacrifices during Santeria religious
    ceremonies, but to exempt secular activities such as
    hunting, slaughtering animals for food, and even using live
    rabbits to train greyhounds. 508 U.S. at 537 (alteration in
    original). The officials’ selective application of the ordinance
    "devalue[d] religious reasons for killing by judging them to
    be of lesser import than nonreligious reasons," causing
    religiously motivated conduct to be "singled out for
    discriminatory treatment." Id. at 537-38. Therefore, strict
    scrutiny applied, and the ordinance failed that test because
    its "proffered objectives [were] not pursued with respect to
    analogous non-religious conduct." Id. at 546.
    Because the ordinance in Lukumi gave officials discretion
    to consider "the particular justification" for each violation,
    it "represent[ed] a system of ‘individualized governmental
    assessment of the reasons for the relevant conduct,’ "
    triggering under Smith strict scrutiny of the ordinance’s
    application to religiously motivated conduct. Id. at 537
    (quoting Smith, 
    494 U.S. at 884
    ). In Fraternal Order of
    Police, we held that the neutrality principle applies with
    equal force when government creates categorical, as
    opposed to individualized, exceptions for secularly
    27
    motivated conduct. 
    170 F.3d at 365
    . A city’s police
    department applied its no-beard policy, which was designed
    to promote uniform appearance, to allow medical
    exemptions but deny similar exemptions to two Sunni
    Muslim officers whose faith required them to grow beards.
    
    Id. at 360-61, 366
    . Selective enforcement of this nature, we
    said, exemplified the Supreme Court’s concern in Smith and
    Lukumi about "the prospect of the government’s deciding
    that secular motivations are more important than religious
    motivations." 
    Id. at 365
    . It showed that the police
    department "made a value judgment that secular (i.e.,
    medical) motivations for wearing a beard are important
    enough to overcome its general interest in uniformity but
    that religious motivations are not." 
    Id. at 366
    . Therefore,
    the enforcement of the policy against the Sunni Muslim
    officers was "sufficiently suggestive of discriminatory intent
    . . . to trigger heightened scrutiny under Smith and Lukumi."27
    _________________________________________________________________
    27. Smith and Lukumi state unambiguously that strict scrutiny applies
    when government discriminates against religiously motivated conduct.
    See Smith, 
    494 U.S. at 884
    ; Lukumi, 
    508 U.S. at 546
    . However, our
    decision in Fraternal Order of Police applied only "heightened" or
    "intermediate" scrutiny, under which the challenged government action
    must be substantially related (rather than narrowly tailored) to
    promoting an important (rather than compelling) government interest.
    We did so because First Amendment rights are limited in the public
    employment context by a government’s need to function efficiently. See,
    e.g., United States v. Nat’l Employees Treasury Union, 
    513 U.S. 454
    , 465
    (1995); Pickering v. Bd. of Educ., 
    391 U.S. 563
    , 568 (1968). In any event,
    we determined that the police department’s discriminatory value
    judgment failed even intermediate scrutiny. Fraternal Order of Police, 
    170 F.3d at
    365-66 & n.7.
    We note that, in contrast to our decision in Fraternal Order of Police,
    two other circuit courts have stated that the Free Exercise Clause offers
    no protection when a statute or policy contains broad, objectively defined
    exceptions not entailing subjective, individualized consideration. See
    Swanson v. Guthrie v. Indep. Sch. Dist. No. I-L, 
    135 F.3d 694
    , 701 (10th
    Cir. 1998) (stating that school district’s excepting fifth-year seniors and
    special education students from "no-part-time-attendance" policy did not
    require strict scrutiny of refusal to allow Christian home-schooled
    student to attend part-time); Am. Friends Serv. Comm. v. Thornburgh,
    
    951 F.2d 957
    , 961 (9th Cir. 1991) (determining that exceptions in
    statute regulating immigrant hiring for independent contractors,
    household employees, and employees hired before November 1986 did
    not trigger strict scrutiny of denial of religiously motivated exemption
    request because the statutory exceptions "exclude entire, objectively-
    defined categories of employees from the scope of the statute").
    28
    Id. at 365. The Sunni Muslim officers’ beards posed no
    greater threat to uniform appearance than did the beards
    worn by officers with medical conditions. Id. at 366. Thus
    the police department’s policy was void under "any degree
    of heightened scrutiny." Id. at 367.
    Smith, Lukumi, and Fraternal Order of Police point the
    way to the appropriate level of scrutiny in this case. On its
    face, Ordinance 691 is neutral and generally applicable.
    But "[o]fficial action that targets religious conduct for
    distinctive treatment cannot be shielded [from
    constitutional attack] by mere compliance with the
    requirement of facial neutrality." Lukumi, 508 U.S. at 534.
    We must look beyond the text of the ordinance and
    examine whether the Borough enforces it on a religion-
    neutral basis, as "the effect of a law in its real operation is
    strong evidence of its object." Id. at 535.
    Because Ordinance 691 is neutral and generally
    applicable on its face, if the Borough had enforced it
    uniformly, Smith would control and the plaintiffs’ claim
    would accordingly fail. The Borough insists it has done so,
    but the record shows otherwise. Indeed, the Borough has
    tacitly or expressly granted exemptions from the
    ordinance’s unyielding language for various secular and
    religious--though never Orthodox Jewish--purposes. Cf.
    Fowler v. Rhode Island, 
    345 U.S. 67
    , 69 (1953) (holding
    that city violated Free Exercise Clause by enforcing
    ordinance banning meetings in park against Jehovah’s
    Witnesses but exempting other religious groups).
    From the drab house numbers and lost animal signs to
    the more obtrusive holiday displays, church directional
    signs, and orange ribbons--the last of which the District
    Court erroneously deemed irrelevant to the constitutional
    analysis28--the Borough has allowed private citizens to affix
    _________________________________________________________________
    28. Pursuant to our "constitutional duty to conduct an independent
    examination of the record as a whole," Hurley , 
    515 U.S. at 567
    , we
    believe there is ample evidence in the record showing that orange
    ribbons were attached to the Borough’s utility poles for "a lengthy period
    of time" and that Borough officials knew about them but made no effort
    to remove them. A594-95 (Mayor Moscovitz Test.); see also A277
    (statement of Tenafly resident Lee Rosenbaum that"[s]urely, a town that
    brandished orange ribbons tied to almost every pole in town for what I
    think was several years can tolerate some unobtrusive markers").
    29
    various materials to its utility poles. Apart from their
    religious nature, the lechis are comparable to the postings
    the Borough has left in place. If anything, the lechis are
    less of a problem because they are so unobtrusive; even
    observant Jews are often unable to distinguish them from
    ordinary utility wires. While the Borough alleges that the
    lechis are different because the plaintiffs intend them to be
    "permanent," house numbers nailed to utility poles are
    likewise intended to be permanent. And although the
    Borough insists that the lechis’ religious nature justifies its
    decision to remove them, this is precisely the sort of
    reasoning that Lukumi and Fraternal Order of Police forbid.
    We believe that the Borough’s selective, discretionary
    application of Ordinance 691 against the lechis violates the
    neutrality principle of Lukumi and Fraternal Order of Police
    because it "devalues" Orthodox Jewish reasons for posting
    items on utility poles by "judging them to be of lesser
    import than nonreligious reasons," and thus "single[s] out"
    the plaintiffs’ religiously motivated conduct for
    discriminatory treatment. Lukumi, 508 U.S. at 537;
    Fraternal Order of Police, 
    170 F.3d at 364-65
    . 29 Just as the
    exemptions for secularly motivated killings in Lukumi
    indicated that the city was discriminating against Santeria
    animal sacrifice, and just as the medical exemption in
    Fraternal Order of Police indicated that the police
    department was discriminating against religiously
    motivated requests to grow beards, the Borough’s
    invocation of the often-dormant Ordinance 691 against
    conduct motivated by Orthodox Jewish beliefs is
    "sufficiently suggestive of discriminatory intent," Fraternal
    Order of Police, 
    170 F.3d at 365
    , that we must apply strict
    scrutiny. See Lukumi, 
    508 U.S. at 546
    .30
    _________________________________________________________________
    29. We note, however, that we reject the plaintiffs’ contention that the
    Free Exercise Clause bars the Borough from distinguishing between the
    lechis and the plastic-covered wires attached to utility poles by telephone
    and cable television companies. Because utility poles exist to facilitate
    telecommunications, utility wires are obviously unlike any of the other
    materials the Borough has allowed people to affix to the poles.
    30. Whereas First Amendment rights are necessarily limited in the public
    employment context, see Nat’l Employees Treasury Union, 
    513 U.S. at
    30
    The Borough nonetheless contends that three aspects of
    this case--the plaintiffs’ use of government property, the
    lack of a "substantial burden" on the plaintiffs’ religious
    freedom, and the "optional" nature of the eruv--place it
    outside the framework of Lukumi and Fraternal Order of
    Police, and thus preclude us from applying strict scrutiny
    even though the Borough has discriminated against
    conduct motivated by Orthodox Jewish beliefs.
    First, the Borough insists that, because the utility poles
    are on its land, this case is governed by Lyng v. Northwest
    Indian Cemetery Protective Ass’n, 
    485 U.S. 439
     (1988),
    which held that the Free Exercise Clause did not prevent
    the federal government from implementing a decision,
    based on religion-neutral criteria, to construct a road and
    allow timber harvesting on 17,000 acres of national forest
    land traditionally used by Native Americans for religious
    practices. 
    Id. at 447-53
    ; see also Bowen v. Roy, 
    476 U.S. 693
    , 699-701, 708 (1986) (holding that Free Exercise
    Clause did not require government to grant religious
    exemption from generally applicable, religion-neutral
    statutory requirement that welfare recipients furnish their
    Social Security numbers where no individualized
    exemptions were allowed). According to the Borough, the
    controlling principle is that "‘the Free Exercise Clause is
    _________________________________________________________________
    465, our case, unlike Fraternal Order of Police , involves purely private
    conduct. Thus Smith and Lukumi obligate us to apply strict scrutiny. See
    supra note 27.
    We note that, in determining the appropriate standard to apply, we do
    not believe it necessary to consider the subjective motivations of the
    Council members who voted to remove the eruv. Lukumi and Fraternal
    Order of Police inferred discriminatory purpose from the objective effects
    of the selective exemptions at issue without examining the responsible
    officials’ motives. See Lukumi, 
    508 U.S. at 537-38
    ; Fraternal Order of
    Police, 
    170 F.3d at 364-66
    ; see also Laurence H. Tribe, American
    Constitutional Law S 5-16, at 956 (3d ed. 2000) ("Under Smith, a law that
    is not neutral or that is not generally applicable can violate the Free
    Exercise Clause without regard to the motives of those who enacted the
    measure."). Likewise, the objective effects of the Borough’s enforcement
    of Ordinance 691 are sufficient for us to conclude that it is not being
    applied neutrally against the eruv.
    31
    written in terms of what the government cannot do to the
    individual, not in terms of what the individual can exact
    from the government."’ Northwest Indian Cemetery, 
    485 U.S. at 451
     (1988) (quoting Sherbert, 374 U.S. at 412
    (Douglas, J., concurring)); Roy, 
    476 U.S. at 700
    .
    Contrary to the Borough’s position, however, the
    principle of Lukumi and Fraternal Order of Police--that
    government cannot discriminate between religiously
    motivated conduct and comparable secularly motivated
    conduct in a manner that devalues religious reasons for
    acting--applies not only when a coercive law or regulation
    prohibits religious conduct, but also when government
    denies religious adherents access to publicly available
    money or property. See Sherbert v. Verner, 
    374 U.S. 398
    ,
    404-05 (1963) (holding that Free Exercise Clause prohibits
    state from devaluing religious reasons for seeking
    unemployment benefits); Davey v. Locke, 
    299 F.3d 748
    ,
    753-54 (9th Cir. 2002) (holding that Free Exercise Clause
    bars state from making college scholarships contingent on
    recipients not majoring in theology); cf. Rosenberger v.
    Rector & Visitors of Univ. of Va., 
    515 U.S. at 831-35
    (holding that Free Speech Clause precludes state university
    that pays student publications’ printing costs from denying
    funding based on publication’s religious viewpoint).
    In contrast, the principle of Northwest Indian Cemetery
    applies only when a person of faith asks for special, not
    equal, treatment in the context of a religion-neutral policy.
    See Adams v. Comm’r of Internal Revenue, 
    170 F.3d 173
    ,
    181 & n.10 (3d Cir. 1999) (rejecting argument that
    "uniform and facially neutral" penalty for"a conscious,
    intentional failure" to file taxes could not be applied to
    religious objector); Swanson v. Guthrie Indep. Sch. Dist. No.
    I-L, 
    135 F.3d 694
    , 701-02 (10th Cir. 1998) (rejecting claim
    that school district must grant religiously motivated request
    for individualized exemption from no-part-time-attendance
    policy where no individualized exemptions were granted). It
    does not apply when government discriminates against
    religiously motivated conduct in allocating "the rights,
    benefits, and privileges enjoyed by other citizens."
    Northwest Indian Cemetery, 
    485 U.S. at 449
    .
    32
    In this case, the plaintiffs are not asking for preferential
    treatment. Instead, they ask only that the Borough not
    invoke an ordinance from which others are effectively
    exempt to deny plaintiffs access to its utility poles simply
    because they want to use the poles for a religious purpose.
    Cf. Widmar v. Vincent, 
    454 U.S. 263
    , 273 n.13 (1981) ("This
    case is different from the cases in which religious groups
    claim that the denial of facilities not available to other
    groups deprives them of their rights under the Free
    Exercise Clause.") (emphasis in original); Davey, 
    299 F.3d at 757-58
     ("This is not a case where a person claims that
    denial of a financial benefit which is not available to others
    deprives him of his free exercise rights."). Therefore, Lukumi
    and Fraternal Order of Police, not Northwest Indian
    Cemetary, control our disposition.
    Second, the Borough maintains that strict scrutiny
    should not apply because the plaintiffs have not shown that
    the removal of the eruv would substantially burden their
    religious practice. Under Smith and Lukumi, however, there
    is no substantial burden requirement when government
    discriminates against religious conduct. See Lukumi, 
    508 U.S. at 531-47
     (finding Free Exercise Clause violation
    without considering whether a substantial burden on
    religious freedom existed); Fraternal Order of Police, 
    170 F.3d at 364-67
     (same); Brown v. Borough of Mahaffey, 
    35 F.3d 846
    , 849-50 (3d Cir. 1994) ("Applying such a burden
    test to non-neutral government actions would make petty
    harassment of religious institutions and exercise immune
    from the protection of the First Amendment."). Instead, the
    plaintiffs need to show only "a sufficient interest in the case
    to meet the normal requirement of constitutional standing,"
    Hartmann v. Stone, 
    68 F.3d 973
    , 979 n.4 (6th Cir. 1995)
    (rejecting substantial burden requirement), and their
    inability to attend synagogue on the Sabbath without the
    eruv easily suffices.
    Moreover, Smith admonished courts not to engage in the
    sort of inquiry the Borough demands. The Supreme Court
    explained that "[j]udging the centrality of different religious
    practices" violates the principle that "courts must not
    presume to determine the place of a particular belief in a
    religion." Smith, 
    494 U.S. at 887
    ; see also DeHart v. Horn,
    33
    
    227 F.3d 47
    , 56 (3d Cir. 2000) (en banc) (same). Evaluating
    the extent of a burden on religious practice is equally
    impermissible, the Smith Court said, because it entails a
    forbidden inquiry into religious doctrine. "‘Constitutionally
    significant burden’ would seem to be ‘centrality’ under
    another name," and "inquiry into ‘severe impact’ is no
    different from inquiry into centrality."
    31 Smith, 494
     U.S. at
    887 n.4; see also Northwest Indian Cemetery, 485 U.S. at
    _________________________________________________________________
    31. Notwithstanding the Supreme Court’s admonition in Smith against
    judicial inquiries into the centrality of religious practices, a number of
    circuit courts persist in imposing a substantial burden requirement in
    various contexts. See, e.g., Levitan v. Ashcroft, 
    281 F.3d 1313
    , 1320
    (D.C. Cir. 2002) (stating in prison context that free exercise plaintiff
    must demonstrate that the challenged law burdens"a central tenet or
    important practice of [his] religion"); Am. Family Ass’n, Inc. v. City and
    County of San Francisco, 
    277 F.3d 1114
    , 1124 (9th Cir. 2002) (noting
    that Ninth Circuit continues to demand that a plaintiff show substantial
    burden in challenges to government actions that are not "regulatory,
    proscriptive or compulsory," though the more recent decision in Davey v.
    Locke, discussed above, did not impose this requirement); Altman v.
    Minn. Dep’t of Corrections, 
    251 F.3d 1199
    , 1204 (8th Cir. 2001)
    ("Government significantly burdens the exercise of religion if it
    significantly constrains conduct or expression that manifests a central
    tenet of a person’s religious beliefs, meaningfully curtails the ability to
    express adherence to a particular faith, or denies reasonable
    opportunities to engage in fundamental religious activities."); Altman v.
    Bedford Cent. Sch. Dist., 
    245 F.3d 49
    , 79 (2d Cir. 2001) (stating, contrary
    to Smith and Lukumi and without citing either opinion, that substantial
    burden test applies when neutral law incidentally impinges on religious
    exercise); Strout v. Albanese, 
    178 F.3d 57
    , 65 (1st Cir. 1999) (quoting a
    pre-Smith case for the proposition that"the free exercise inquiry [is]
    whether government has placed a substantial burden on the observation
    of a central belief or practice") (internal quotation marks omitted)
    (emphasis in original); United States v. Grant , 
    117 F.3d 788
    , 793 (5th
    Cir. 1997) (rejecting free exercise claim, without citing Smith or Lukumi,
    on ground that plaintiff’s religious freedom was not substantially
    burdened); Goodall by Goodall v. Stafford County Sch. Bd., 
    60 F.3d 168
    ,
    173 (4th Cir. 1995) (stating that substantial burden requirement applies
    when challenged law is not generally applicable); Fleischfresser v. Dirs. of
    Sch. Dist. 200, 
    15 F.3d 680
    , 689-90 (7th Cir. 1994) (requiring
    substantial burden as prerequisite for free exercise claim without citing
    Smith); Church of Scientology v. City of Clearwater, 
    2 F.3d 1514
    , 1549
    (11th Cir. 1993) (stating that strict scrutiny applies when a law that
    targets religion imposes a substantial burden on believers).
    34
    451 ("Whatever may be the exact line between
    unconstitutional prohibitions on the free exercise of religion
    and the legitimate conduct by government of its own affairs,
    the location of the line cannot depend on measuring the
    effects of a governmental action on a religious objector’s
    spiritual development."); cf. Widmar, 
    454 U.S. at
    269 n.6
    (rejecting distinction between "religious worship" and other
    religious speech because it would require courts"to inquire
    into the significance of words and practices to different
    religious faiths" and "[s]uch inquiries would tend inevitably
    to entangle the State with religion in a manner forbidden by
    our cases").
    Third, the Borough asserts that the plaintiffs cannot
    state a free exercise claim because the eruv is an "optional"
    religious practice. For reasons similar to those counseling
    against requiring the plaintiffs to demonstrate a substantial
    burden on their religious practice, we cannot accept the
    Borough’s contention that courts presented with free
    exercise claims should, as a threshold matter, determine
    whether the religious practices at issue are "mandatory" or
    "optional." We need not consider whether the Borough’s
    characterization of the eruv is accurate. Neither the
    Supreme Court nor our Court has intimated that only
    compulsory religious practices fall within the ambit of the
    Free Exercise Clause. To the contrary, our en banc decision
    in DeHart said that conduct implicates the Free Exercise
    Clause if it is motivated by "beliefs which are both sincerely
    held and religious in nature" without regard to whether it
    is mandatory. 
    227 F.3d at 51
    ; cf. 
    id. at 54-55
     (rejecting
    contention that, in the context of prisoners’ free exercise
    claims, conduct based on "religious commandments"
    should receive more protection than conduct that is"a
    positive expression of belief"); see also Levitan v. Ashcroft,
    
    281 F.3d 1313
    , 1319 (D.C. Cir. 2002) (holding that,
    because "[a] requirement that a religious practice be
    mandatory to warrant First Amendment protection finds no
    warrant in the cases of the Supreme Court or of this court,"
    Catholic prisoners could raise free exercise challenge to rule
    barring them from consuming small amounts of wine
    during Communion).32 Further, if the Borough’s position
    _________________________________________________________________
    32. But see Ward v. Walsh, 
    1 F.3d 873
    , 878 (9th Cir. 1993) (suggesting,
    without citing supporting legal authority, that there is a "distinction
    35
    were correct, the Lukumi Court would have considered
    whether Santeria adherents believe their faith commands
    them to sacrifice animals. But the Court did not do so,
    instead deeming it sufficient that they had a sincere desire
    to sacrifice animals for religious reasons. See Lukumi, 
    508 U.S. at 531
    .
    Additionally, if anything turned on whether a religious
    practice is "mandatory" or "optional," courts would have to
    question "the validity of particular litigants’ interpretations
    of [their] creeds" and perhaps even adjudicate
    "controversies over religious authority or dogma," tasks that
    are "not within the judicial ken." Smith , 
    494 U.S. at 877, 887
     (internal quotation marks omitted); cf. Presbyterian
    Church in U.S. v. Mary Elizabeth Hull Mem’l Presbyterian
    Church, 
    393 U.S. 440
    , 449-50 (1969) (holding that the Free
    Exercise Clause prohibits courts from deciding church
    property disputes by resolving underlying conflicts over "the
    interpretation of particular church doctrines and the
    importance of those doctrines to the religion"); see also
    United States v. Ballard, 
    322 U.S. 78
    , 84-88 (1944) (holding
    that courts can inquire into the sincerity, but not the truth
    or falsity, of religious beliefs).
    Finally, if the First Amendment shielded only compulsory
    religious practices, religions without commandments
    "would find themselves outside the scope of First
    Amendment protection altogether," Levitan, 
    281 F.3d at 1320
    , a result antithetical to basic Free Exercise Clause
    norms. See, e.g., Fowler, 
    345 U.S. at 70
     ("[I]t is no business
    of courts to say that what is a religious practice or activity
    for one group is not religion under the protection of the
    First Amendment.").
    As the Borough’s arguments for eschewing strict scrutiny
    are unpersuasive, we must consider whether its invocation
    of Ordinance 691 against the lechis is likely to pass that
    test.
    _________________________________________________________________
    between a religious practice which is a positive expression of belief and
    a religious commandment which the believer may not violate at peril of
    his soul" in the context of prisoners’ free exercise claims).
    36
    2. Application of strict scrutiny
    Because the Borough’s decision to remove the eruv is not
    neutral toward conduct motivated by Orthodox Jewish
    beliefs, it "must undergo the most rigorous of scrutiny."
    Lukumi, 508 U.S. at 546. To be permissible under the Free
    Exercise Clause, it "must advance interests of the highest
    order and must be narrowly tailored in pursuit of those
    interests." Id. (internal quotation marks omitted). The
    Borough attempts to justify its decision to remove the eruv,
    and distinguish the lechis from the violations of Ordinance
    691 it has tolerated, on the grounds that the lechis are
    "permanent" and religious in nature. Neither ground is
    persuasive.
    Much of our strict scrutiny analysis parallels our earlier
    discussion of why the Borough’s decision is not religion-
    neutral. See Lukumi, 
    508 U.S. at 546-47
     (stating that lack
    of neutrality eviscerates contention that restriction is
    narrowly tailored to advance compelling interest). First, for
    many years--and, the record shows, after the plaintiffs
    sued--the Borough has allowed its residents to nail house
    numbers to utility poles. Because the Borough has
    tolerated equally permanent house numbers, it hardly has
    a compelling interest in refusing to allow the inconspicuous
    lechis on the ground that they are permanent. Further, it is
    hard to see how the allegedly permanent nature of the
    unobtrusive lechis somehow undermines Ordinance 691’s
    objective of avoiding visual clutter and maintaining control
    over municipal property more than items like bright orange
    ribbons and lost animal signs. Moreover, even if the
    Borough had a compelling interest in preventing permanent
    fixtures on its utility poles, its decision to remove the eruv
    while allowing the house numbers is not narrowly tailored
    to promote that interest.
    Though the Borough’s claim that it can remove the eruv
    because of its religious nature requires more discussion, it
    is similarly unpersuasive. The Borough maintains that its
    decision to remove the eruv is justified by its "compelling"
    interest in avoiding "an Establishment Clause controversy."
    Contrary to the Borough’s position, however, a government
    interest in imposing greater separation of church and state
    than the federal Establishment Clause mandates is not
    37
    compelling in the First Amendment context. See Widmar,
    
    454 U.S. at 276
     (rejecting state university’s contention that
    its interest in complying with the state constitution’s
    prohibition on religious establishments, which was more
    restrictive than its federal counterpart, justified
    discriminating against religious speech, and explaining that
    "the state interest asserted here--in achieving greater
    separation of church and State than is already ensured
    under the Establishment Clause of the Federal Constitution
    --is limited by the Free Exercise Clause and in this case by
    the Free Speech Clause as well")33 Davey, 
    299 F.3d at 759
    (same in context of free exercise claim).
    _________________________________________________________________
    33. In 1990, a divided panel of our Court suggested in dictum--in a case
    that did not involve a Free Exercise Clause claim, and without citing
    Widmar--that public schools have "a compelling interest in maintaining
    the appearance of religious neutrality" in their classrooms, and that this
    interest, even if not required by the Establishment Clause, might
    outweigh public employees’ free exercise right to wear religious garb.
    United States v. Board of Education, 
    911 F.2d 882
    , 889 (3d Cir. 1990)
    (holding that Title VII does not require public schools to allow teachers
    to wear religious garb, as this would impose an"undue hardship" on the
    schools under 42 U.S.C. S 2000e(j)). The opinions cited in support of this
    proposition were Cooper v. Eugene School District, 
    723 P.2d 298
     (Or.
    1986)--which also did not cite Widmar--and the Supreme Court’s one-
    sentence order dismissing an appeal from the Oregon Supreme Court’s
    ruling "for want of a substantial federal question." 
    480 U.S. 942
     (1987).
    To the extent that the Oregon Supreme Court held in Cooper that
    concerns about appearing neutral toward religion could outweigh
    employees’ free exercise rights in the public school context, we do not
    believe the United States Supreme Court’s summary disposition
    approved that reasoning. Instead, we believe, especially in light of
    subsequent doctrinal developments, that the dictum in United States v.
    Board of Education may be inconsistent with Widmar’s principle that an
    interest in more separation between church and state than the
    Establishment Clause requires cannot justify restricting rights shielded
    by the Free Exercise Clause. See Widmar, 
    454 U.S. at 276
    .
    First, summary dispositions by the Supreme Court"cannot be taken
    as adopting the reasoning of the lower court," Wis. Dep’t of Revenue v.
    Wrigley Co., 
    505 U.S. 214
    , 224 n.2 (1992); Zobel v. Williams, 
    457 U.S. 55
    , 64 n.13 (1982) (same), and they can be used as precedent "only if
    the [lower court’s] decision[ ] rested solely on established constitutional
    principles and did not break any new ground." Robert L. Stern et al.,
    Supreme Court Practice S 4.29, at 284 (8th ed. 2002). Hence the Supreme
    38
    The Borough further argues, however, that leaving the
    eruv in place would constitute an actual Establishment
    Clause violation, and that the need to avoid such a
    violation justifies discriminating against the plaintiffs’
    religiously motivated conduct. Before explaining why this
    argument is also unavailing, we must examine the Supreme
    Court’s recent pronouncements in the area.34 Until the past
    _________________________________________________________________
    Court’s summary disposition in Cooper cannot be interpreted as
    endorsing the Oregon Supreme Court’s reasoning, particularly since that
    reasoning flatly contradicts Widmar. See Fusari v. Steinberg, 
    419 U.S. 379
    , 388-89 n.15 (1975) (stating that, even though a lower court’s
    interpretation of a summary affirmance by the Supreme Court was
    "plausible," it was improper because it would"leave little vitality" to an
    earlier Supreme Court decision); see also 
    id. at 391-92
     (Burger, C.J.,
    concurring) ("An unexplicated summary affirmance settles the issues for
    the parties, and is not to be read as a renunciation by this Court of
    doctrines previously announced in our opinions after full argument.").
    Since Cooper, moreover, the Supreme Court has held in several cases
    that a government interest in appearing neutral toward religion, where
    not necessary to comply with the Establishment Clause, cannot justify
    limiting First Amendment rights. See Good News Club v. Milford Cent.
    Sch., 
    533 U.S. 98
    , 112-19 (2001); Rosenberger, 
    515 U.S. at 839-46
    ;
    Capitol Square Review & Advisory Bd. v. Pinette, 
    515 U.S. 753
    , 761-63
    (1995); Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 
    508 U.S. 384
    , 395 (1993). Because subsequent doctrinal developments remove
    whatever precedential authority a summary disposition inconsistent with
    them might have, see Hicks v. Miranda, 
    422 U.S. 332
    , 344-45 (1975);
    Lecates v. Justice of Peace Ct. No. 4, 
    637 F.2d 898
    , 902 (3d Cir. 1980),
    we believe that in all likelihood the Supreme Court summarily dismissed
    the appeal in Cooper under the principle of Pickering v. Board of
    Education, 
    391 U.S. 563
     (1968), which held that government can impose
    restrictions on the First Amendment rights "of public employees that
    would be plainly unconstitutional if applied to the public at large." United
    States v. Nat’l Employees Treasury Union, 
    513 U.S. 454
    , 465 (1995).
    Thus the Supreme Court had no need in Cooper to consider whether an
    interest in appearing neutral toward religion can trump free exercise
    rights outside the context of public employment.
    34. Two courts have held that the Establishment Clause allows a
    municipality affirmatively to grant Orthodox Jews access to public
    property so they can create an eruv. See ACLU of N.J. v. City of Long
    Branch, 
    670 F. Supp. 1293
    , 1295-97 (D.N.J. 1987); Smith v. Community
    Bd. No. 14, 
    491 N.Y.S.2d 584
    , 586-87 (N.Y. Sup. Ct. 1985), aff’d, 
    518 N.Y.S.2d 356
    , 357 (N.Y. App. Div. 1987). Those cases are not on point
    here because the Borough has not approved the eruv.
    39
    decade, the Supreme Court generally applied the three-
    prong test of Lemon v. Kurtzman, 
    403 U.S. 602
     (1971),
    under which government action is consistent with the
    Establishment Clause if it (1) "has a secular purpose"; (2)
    "does not have the principal or primary effect of advancing
    or inhibiting religion"; and (3) "does not foster an excessive
    entanglement with religion." Lamb’s Chapel v. Ctr. Moriches
    Union Free Sch. Dist., 
    508 U.S. 384
    , 395 (1993). 35
    Recent Supreme Court decisions, however, have not
    applied the Lemon test. Instead, in cases involving
    Establishment Clause challenges to private individuals’ use
    of government resources, the Court has applied the
    endorsement test developed by Justice O’Connor, which
    dispenses with the "entanglement" prong of the Lemon test
    and collapses its "purpose" and "effect" prongs into a single
    inquiry: would a reasonable, informed observer, i.e., one
    familiar with the history and context of private individuals’
    access to the public money or property at issue, perceive
    the challenged government action as endorsing religion?36
    See Zelman v. Simmons-Harris, ___ U.S. ___ , ___, 
    122 S. Ct. 2460
    , 2468-69 (2002) (upholding school voucher program
    where 96% of participating students attended religiously
    affiliated schools because parents’ genuine and
    _________________________________________________________________
    35. Compare, e.g., Widmar, 
    454 U.S. at 271-75
     (applying Lemon test to
    hold that Establishment Clause does not bar state university from
    allowing religious groups to use generally available facilities); Lynch v.
    Donnelly, 
    465 U.S. 668
    , 679-86 (1984) (applying Lemon test to uphold
    city-sponsored Christmas display that included creche alongside various
    secular symbols), with Lee v. Weisman, 
    505 U.S. 577
    , 586-87 (1992)
    (invalidating prayer at public school graduation led by clergyman chosen
    by school officials without relying on Lemon test); Marsh v. Chambers,
    
    463 U.S. 783
    , 792-95 (1983) (upholding practice of opening state
    legislative sessions with prayers by state-employed chaplain without
    mentioning Lemon test); see generally Lamb’s Chapel, 
    508 U.S. at
    398-
    99 (Scalia, J., concurring in the judgment) (chronicling Court’s erratic
    invocation of Lemon test).
    36. "Entanglement" still matters, however, in the context of direct aid to
    public schools, where the Court subsumes it within the "effect" analysis,
    see Agostini v. Felton, 
    521 U.S. 203
    , 232-33 (1997), and in the rare case
    where government delegates civic power to a religious group. See Bd. of
    Educ. of Kiryas Joel Village Sch. Dist. v. Grumet , 
    512 U.S. 687
    , 696-705
    (1994); Larkin v. Grendel’s Den, Inc., 
    459 U.S. 116
    , 126-27 (1982).
    40
    independent choices determined where children went to
    school); Good News Club v. Milford Cent. Sch. , 
    533 U.S. 98
    ,
    117-19 (2001) (holding that Establishment Clause did not
    require public school to bar evangelical Christian student
    group from using facilities accessed by various other
    groups);37 Capitol Square Review & Advisory Bd. v. Pinette,
    
    515 U.S. 753
    , 763 (1995) (relying on the endorsement
    analysis in Lamb’s Chapel to hold that Establishment
    Clause did not require state to prevent private group from
    erecting cross on statehouse grounds, a traditional public
    forum)38; Lamb’s Chapel, 
    508 U.S. at 395
     (reciting the
    Lemon test but relying primarily on the endorsement test to
    hold that the Establishment Clause did not prohibit school
    district from letting evangelical church group use publicly
    available school facilities to show film series on Christian
    family values); see also ACLU of N.J. v. Schundler, 
    168 F.3d 92
    , 103, 105-07 (3d Cir. 1999) (noting that Justice
    O’Connor’s endorsement test is the governing standard and
    applying it to uphold government-sponsored holiday display
    _________________________________________________________________
    37. When presented with Establishment Clause claims in the context of
    public education, the Supreme Court considers not only whether a
    reasonable, informed observer would perceive an endorsement of
    religion, but also whether the challenged government practice coerces
    students into participating in religious activity. See Good News Club, 
    533 U.S. at 115-16
    ; Lee, 
    505 U.S. at 592-93
    . The Court has not applied its
    coercion test outside the public education context.
    38. Seven Justices in Capitol Square agreed that the reasoning of Lamb’s
    Chapel controlled, Capitol Square, 
    515 U.S. at 762
    , three of these seven
    expressly applied the reasonable, informed observer test, see 
    id. at 772
    (O’Connor, J., joined by Souter & Breyer, JJ.), and the two dissenting
    Justices also applied the endorsement test, see 
    id. at 797-98
     (Stevens,
    J., dissenting); 
    id. at 817-18
     (Ginsburg, J., dissenting). Four Justices,
    however, recognized that the endorsement test controls when
    government discriminates in favor of religion, but argued that there is no
    need to apply the test to "purely private" religious expression that occurs
    in a public forum "open to all on equal terms" because such expression
    can never violate the Establishment Clause. 
    Id. at 770
     (opinion of Scalia,
    J.). Notwithstanding the Justices’ divergent approaches, subsequent
    Supreme Court decisions treat the reasonable, informed observer test
    discussed at length in Justice O’Connor’s opinion as representing Capitol
    Square’s holding with respect to the appropriate Establishment Clause
    test. See Good News Club, 
    533 U.S. at 119
    ; Santa Fe Indep. Sch. Dist. v.
    Doe, 
    530 U.S. 290
    , 308 (2000).
    41
    against Establishment Clause attack). Each of these
    decisions upheld the challenged government action because
    it treated religion neutrally, and thus would not be viewed
    by a reasonable, informed observer as endorsing religion.39
    In contrast, government runs afoul of the endorsement
    test and violates the Establishment Clause when it
    affirmatively supports religion on preferential terms. See
    Santa Fe Indep. Sch. Dist. v. Doe, 
    530 U.S. 290
    , 305-10
    (2000) (invalidating school policy of encouraging and
    sponsoring student-initiated, student-led prayers before
    high school football games because reasonable, informed
    observer would perceive school as endorsing religion);
    County of Allegheny v. ACLU, Greater Pittsburgh Chapter,
    
    492 U.S. 573
    , 598-601 (1989) (holding that county violated
    Establishment Clause by giving Roman Catholic group
    preferential access to display stand-alone creche depicting
    birth of Jesus on main staircase of its seat of government
    because reasonable observer would believe county’s action
    was meant to support and promote Christianity); see also
    ACLU of N.J. v. Black Horse Pike Regional Bd. of Educ., 
    84 F.3d 1471
    , 1484-88 (3d Cir. 1996) (en banc) (invalidating
    scheme that allowed public high school students to choose
    graduation prayer, but not any secular speech, by plurality
    vote).40 In addition, some Justices have held out the
    possibility that, even if government grants equal rather
    than preferential access to religion, a reasonable, informed
    observer could perceive an endorsement of religion in
    _________________________________________________________________
    39. While the Supreme Court’s Establishment Clause jurisprudence
    consistently emphasizes neutrality toward religion, it allows government
    to "accommodate religious needs by alleviating special burdens" on
    religious practice unless the "accommodation" delegates political power
    to a particular religious group or otherwise "singles out a particular
    religious sect for special treatment." Kiryas Joel Village Sch. Dist., 
    512 U.S. at 705-06
    .
    40. The Allegheny Court also held, with no majority opinion on this
    point, that local officials did not endorse religion by erecting a display
    including a menorah, a Christmas tree, and a sign entitled "Salute to
    Liberty" in front of another government building. See 
    492 U.S. at 613-21
    (opinion of Blackmun, J.); 
    id. at 632-36
     (O’Connor, J., concurring in part
    and concurring in the judgment); 
    id. at 663-67
     (Kennedy, J., concurring
    in the judgment in part and dissenting in part).
    42
    extraordinary cases. See Capitol Square, 
    515 U.S. at 777-78
    (O’Connor, J., concurring in part and concurring in the
    judgment). For instance, if one or more religious groups
    dominated property the government made available to the
    public, a reasonable observer might perceive an
    endorsement of religion. See id.; cf. Freedom from Religion
    Found. v. City of Marshfield, 
    203 F.3d 487
    , 489, 494-96
    (7th Cir. 2000) (holding that Establishment Clause was
    violated where sole display in public forum was fifteen-foot-
    tall white marble statue of Jesus bearing inscription "Christ
    Guide Us On Our Way" in twelve-inch block letters and
    facing oncoming traffic on adjacent highway).
    Applying these principles to this case, we believe that, if
    the Borough ceased discriminating against the plaintiffs’
    religiously motivated conduct to comply with the Free
    Exercise Clause, a reasonable, informed observer would not
    perceive an endorsement of Orthodox Judaism because the
    Borough’s change of heart would "reflect[] nothing more
    than the governmental obligation of neutrality" toward
    religion. Sherbert, 
    374 U.S. at 409
    . A reasonable observer
    "must be deemed aware of the history and context of the
    community," Good News Club, 
    533 U.S. at 119
     (internal
    quotation marks omitted); see also Zelman, 
    122 S. Ct. at 2468-69
    ; Black Horse Pike, 
    84 F.3d at 1486
    , and
    "presumed to possess a certain level of information that all
    citizens might not share." Capitol Square, 
    515 U.S. at 780
    (O’Connor, J., concurring in part and concurring in the
    judgment); see also Good News Club, 
    533 U.S. at 118
    (stating that reasonable observer would know about non-
    neutral implementation of policy); ACLU of N.J. v.
    Schundler, 
    168 F.3d at 106
     (noting that reasonable
    observer would be aware of city’s year-round practices
    regarding cultural displays and celebrations). Thus the
    reasonable, informed observer would know that the lechis
    are items with religious significance and that they enable
    Orthodox Jews to engage in activities otherwise off limits on
    the Sabbath, but would also know that the Borough was
    allowing them to remain on the utility poles only because
    its selective application of Ordinance 691 renders removing
    the lechis a free exercise violation. See Allegheny, 
    492 U.S. at 632
     (O’Connor, J., concurring in part and concurring in
    the judgment) ("In cases involving the lifting of government
    43
    burdens on the free exercise of religion, a reasonable
    observer would take into account the values underlying the
    Free Exercise Clause in assessing whether the challenged
    practice conveyed a message of endorsement."). Cognizant
    of the Borough’s secular purpose of complying with the
    Free Exercise Clause, see Mergens, 496 U.S. at 249, and
    the religion-neutral effect of treating the lechis like other
    postings, the reasonable observer would not believe that the
    Borough was promoting Orthodox Judaism. See Gregoire v.
    Centennial Sch. Dist., 
    907 F.2d 1366
    , 1380 (3d Cir. 1990)
    (concluding that religion-neutral treatment of Christian
    group seeking access to public school facilities sent
    message of neutrality toward, not endorsement of, religion).
    This is true a fortiori because there is no evidence in the
    current record that the unobtrusive lechis are intended to
    send a religious message to anyone.
    Further, there is a vital difference between purely private
    religiously motivated conduct and conduct initiated or
    sponsored by government. See Rosenberger, 515 U.S. at
    841. No reasonable, informed observer would perceive the
    decision of the plaintiffs to affix lechis to utility poles owned
    by Verizon and to do so with Cablevision’s assistance as " ‘a
    choice attributable to the State.’ " Santa Fe Indep., 
    530 U.S. at 311
     (quoting Lee, 
    505 U.S. at 587
    ). Similarly, because
    the eruv is maintained solely with private funds, and
    because allowing the lechis to remain in place would
    represent neutral rather than preferential treatment of
    religiously motivated conduct, no reasonable, informed
    observer would believe the Borough is "affirmatively
    sponsor[ing]" an Orthodox Jewish practice. Santa Fe Indep.,
    
    530 U.S. at 313
    .
    To the extent that access to the utility poles on Borough
    land constitutes a "benefit," "the ‘guarantee of neutrality is
    respected, not offended"’ when religious persons benefit
    incidentally from "‘neutral criteria and evenhanded
    policies."’ Good News Club, 
    533 U.S. at 114
     (quoting
    Rosenberger, 515 U.S. at 839). In this context, there is "no
    realistic danger" that, if the Borough treated the plaintiffs’
    religiously motivated conduct on religion-neutral terms,
    reasonable, informed observers would perceive an
    endorsement of Orthodox Judaism. Lamb’s Chapel , 508
    44
    U.S. at 395. Moreover, even if there is some slight risk that
    a reasonable, informed observer might "misperceive the
    endorsement of religion," there is a much greater risk that
    the observer would perceive hostility toward Orthodox Jews
    if the Borough removes the lechis. Good News Club, 
    533 U.S. at 118
    ; Mergens, 496 U.S. at 248; see also
    Rosenberger, 515 U.S. at 846 (O’Connor, J., concurring)
    ("Withholding access would leave an impermissible
    perception that religious activities are disfavored.").41
    Because the Free Exercise Clause requires neutral
    treatment of religion, see Smith, 
    494 U.S. at 879
    , only in a
    most unusual case could compliance with free exercise
    norms offend the Establishment Clause. Cf. Kiryas Joel
    Village Sch. Dist., 
    512 U.S. at 717
     (O’Connor, J.,
    concurring) ("The Religion Clauses prohibit the government
    from favoring religion, but they provide no warrant for
    discriminating against religion.") (emphasis in original).
    This is not such a case. Therefore, the Borough has no
    Establishment Clause justification for discriminating
    against the plaintiffs’ religiously motivated conduct.
    Accordingly, the plaintiffs are reasonably likely to prevail on
    their free exercise claim.
    3. Requirements for preliminary injunctive relief
    Where a district court has denied a motion for a
    preliminary injunction, we may order the injunction to
    issue if "the four factors required to grant a preliminary
    injunction are apparent on the record before us." Tanimura
    & Antle, Inc. v. Packed Fresh Produce, Inc., 
    222 F.3d 132
    ,
    140 (3d Cir. 2000); see also Council of Alternative Political
    Parties v. Hooks, 
    121 F.3d 876
    , 883-84 (3d Cir. 1997);
    Polaroid Corp. v. Disney, 
    862 F.2d 987
    , 1006 (3d Cir. 1988).
    _________________________________________________________________
    41. To the extent that the Lemon test retains some trace of vitality, see
    Black Horse Pike, 
    84 F.3d at 1484
    , even after Zelman, Good News Club,
    and Santa Fe eschewed it in favor of the endorsement test, it does not
    support the Borough’s Establishment Clause defense. Allowing the eruv
    to remain in place serves the secular purpose of complying with the Free
    Exercise Clause, does not have the effect of advancing religion because
    no reasonable, informed observer would perceive an endorsement of
    religion, and involves no government entanglement with religion because
    the Borough will not monitor or support the maintenance of the eruv.
    45
    Our review of the record leaves us convinced that, in
    addition to the reasonable probability that the plaintiffs will
    ultimately prevail on their free exercise claim, the
    remaining three factors for injunctive relief--irreparable
    injury, the balance of hardships, and the public interest--
    also favor a preliminary injunction. Limitations on the free
    exercise of religion inflict irreparable injury. Fifth Ave.
    Presbyterian Church v. City of New York, 
    293 F.3d 570
    , 574
    (2d Cir. 2002); Kikumura v. Hurley, 
    242 F.3d 950
    , 963
    (10th Cir. 2001); see also Swartzwelder v. McNeilly, 
    297 F.3d 228
    , 241 (3d Cir. 2002) ("‘The loss of First Amendment
    freedoms, for even minimal periods of time, unquestionably
    constitutes irreparable injury."’) (quoting Elrod v. Burns,
    
    427 U.S. 347
    , 373 (1976)). The plaintiffs have demonstrated
    that, if the eruv is removed, they will be unable to push and
    carry objects outside the home on the Sabbath, and those
    who are disabled or have small children consequently will
    be unable to attend synagogue. This showing easily
    satisfies the irreparable injury requirement.
    With respect to the balance of hardships, a preliminary
    injunction would not harm the Borough more than denying
    relief would harm the plaintiffs. Enjoining removal of the
    eruv would cause neither the Borough nor its residents any
    serious injury. Without an injunction, on the other hand,
    the plaintiffs’ free exercise of religion will be impaired. The
    balance easily tips in the plaintiffs’ favor.
    Finally, where there are no societal benefits justifying a
    burden on religious freedom, "the public interest clearly
    favors the protection of constitutional rights." Council of
    Alternative Political Parties v. Hooks, 
    121 F.3d 876
    , 884 (3d
    Cir. 1997). We do not see how removing the lechis could
    advance any interests sufficient to outweigh the
    infringement of the plaintiffs’ free exercise rights.
    In this context, the District Court should have
    preliminarily enjoined the Borough from removing the lechis
    pending a trial.
    IV. Conclusion
    Though the plaintiffs are not likely to prevail on their Fair
    Housing Act claim and do not present a viable free speech
    46
    claim, they are reasonably likely to show that the Borough
    violated the Free Exercise Clause by applying Ordinance
    691 selectively against conduct motivated by Orthodox
    Jewish beliefs. Because the three other factors for
    injunctive relief also favor the plaintiffs, we reverse the
    District Court’s denial of injunctive relief and will enter an
    order directing the Court to issue a preliminary injunction
    barring the Borough from removing the lechis.
    A True Copy:
    Teste:
    Clerk of the United States Court of Appeals
    for the Third Circuit
    47
    

Document Info

Docket Number: 01-3301

Citation Numbers: 309 F.3d 144

Filed Date: 10/24/2002

Precedential Status: Precedential

Modified Date: 1/12/2023

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andrew-d-brown-and-abundant-life-ministries-v-borough-of-mahaffey , 35 F.3d 846 ( 1994 )

79-fair-emplpraccas-bna-323-75-empl-prac-dec-p-45820-fraternal , 170 F.3d 359 ( 1999 )

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lynn-ann-steirer-a-minor-by-barbara-and-thomas-steirer-as-guardians-and , 987 F.2d 989 ( 1993 )

american-telephone-and-telegraph-company-v-winback-and-conserve-program , 42 F.3d 1421 ( 1994 )

the-st-thomas-st-john-hotel-tourism-association-inc-the-st-thomas , 218 F.3d 232 ( 2000 )

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