New Eruv Reopens Old Church-State Debates in Palo Alto

Josh Richman | Wed. Jul 18, 2007
http://www.forward.com/articles/11190/

In 1999, Rabbi Yitzchok Feldman and his synagogue, Congregation Emek Beracha, approached the city of Palo Alto — an urbane community of tree-lined lanes that some of Silicon Valley’s and Stanford University’s finest minds call home — about creating an eruv, a delineated area in which Orthodox Jews can engage in certain activities normally forbidden on the Sabbath. City officials initially reacted warmly, but the following year a community outcry about separation of church and state, and perhaps about less high-minded issues, as well, beat back the proposal into obscurity.

Until last month, that is, when city bureaucrats green-lighted the eruv without holding any of the public hearings that had doomed it in 2000. Many of the eruv’s old opponents didn’t know it was an issue again until local newspapers reported it as a done deal.

“We look upon the eruv as a violation of our right to live in a spiritual environment of our own choice,” city resident Walton McMillan commented July 6 on the Palo Alto Weekly’s Web site, where debates have raged. “The eruv forces upon us the necessity to live in a community devoted to the worship of a god foreign to our understanding and devotion. We should not be required to live in a spiritual community which has habitually turned its back on the sacred and sublime for thousands of years.”

McMillan told the Forward he had thought that eruv opponents had “killed it eight years ago”; he was irked to discover otherwise.

Debates about the installation of eruv in are nothing new in American communities, raising church-state questions everywhere they pop up. The situation in Palo Alto is illuminating because it’s taking place in one of America’s most famous university communities, with all the secular and sometimes anti-religious sentiments that come with it.

Joe Webb from the nearby affluent enclave of Woodside vocally opposed the eruv last time, and he minces no words now. “We live in a modern, secular, democratic world, and these wackos are trying to catapult us back into a 2,000-years-ago kind of deal,” he said in an interview with the Forward, citing “the sneaky way that these folks do things.”

“The big thing at the time was declaring this area Jewish space — absurd! It’s not Christian space, it’s not communist space, it’s not Republican space, it’s not Nazi space. If they want to have religious space, go to synagogue,” he said, adding that he has “washed my hands of it…. If people want to allow Jews to run all over them, that’s their prerogative.”

It’s not as if Jews usually live beneath Palo Alto’s radar. A 2004 study by San Francisco’s Jewish Community Federation found that the South Peninsula area, including Palo Alto, saw the Bay Area’s most dramatic Jewish population growth from 1986 to 2004: 248%. And Palo Alto is home to the nascent Taube-Koret Campus for Jewish Life, a $250 million project to include a new Jewish community center, assisted-living senior residences developed by the Jewish Home of San Francisco, a regional headquarters for the Jewish federation and more.

But the community is keeping quiet until this eruv is actually in effect, Feldman insisted to the Forward. “We enjoyed our years of anonymity, and until this thing is really done, if you went through what we went through seven years ago, you’d keep quiet, too,” he said. “We did lots of talking to the press last time; it didn’t get anybody anywhere.”

When asked whether a contractor has begun stringing the barely visible fishing line that will bridge gaps between the eruv’s already existing, natural boundaries, Feldman replied, “I hope so.” Asked when the task will be completed, he said, “I hope somebody will tell us.”

How the hubbub of 2000 compares with the silent manner in which the eruv proceeded this time is a question “for the historians,” the rabbi said. “That’s all old stuff; it doesn’t seem to have repeated itself.”

Stan Sussman, founding president of Palo Alto Community eruv Inc., didn’t return calls.

Palo Alto City Attorney Gary Baum said that Feldman implored him to be discreet in discussing the eruv, but at least this much is on the public record: Last month, city planners granted an encroachment permit, the sort of permission a restaurant might get to place outdoor seating on a public sidewalk.

Last time, supporters had pursued the eruv as a land-use application, requiring the city council’s approval and public hearings. Citing safety concerns about attachments to public utility poles, and amid the public hue and cry, the city council was willing in 2000 to allow an eruv formed only of painted marks — unsatisfactory by halachic standards, and so, tantamount to rejection.

This time, facing a plan that bypassed all public utility poles and received permits from Stanford University, the California Department of Transportation, the Santa Clara Valley Water District and other entities from which easements were needed, “the City is legally compelled to allow the eruv installation,” Baum wrote in an official city memo.

Legal precedents including a 2002 3rd U.S. Circuit Court of Appeals ruling on a Tenafly, N.J., eruv indicate granting the permit doesn’t violate the First Amendment’s ban on government establishment of religion, while denying it absent a technical reason could violate the same amendment’s Free Exercise clause, Baum wrote.

That’s unsatisfying to Mitchell Zimmerman, an attorney and Palo Alto resident who, along with Joel Beinin, a Stanford University professor, co-authored a March 2000 Palo Alto Weekly guest column titled “Beware the Symbolism of Approving an eruv.”

“I just think it’s a mistake. I still think it’s basically a violation of separation of church and state,’’ he said this month. “I’m sorry that some people have sort of quirky… religious beliefs that they think require them to engage in this kind of activity… but I don’t see that a city or state ought to get involved in some sort of cooperation to help them out of their religious problem.”

Beinin — an often controversial, outspoken critic of Israeli policy who has been accused by right-wing provocateur David Horowitz of being a terrorist sympathizer — is in temporary residence at Egypt’s American University in Cairo. Reached via e-mail, he told the Forward he has “no comments at all” on the eruv.

It’s still unclear how this eruv satisfies the halachic requirement of sekhirat reshut, or “rental of domain,” a sort of leasing of spiritual authority so that all within the eruv’s boundaries is deemed communal, considered enclosed and private for the Sabbath.

Richard Hecht, a University of California, Santa Barbara, professor who is a scholar of the politics of public religious space, said there might be precedent for the Jewish community itself making such a proclamation, but he also opined that doing so without the larger community’s knowledge or approval might be “a perilous way to go,” lest it spark “a firestorm of criticism.”