Jewish People for the Betterment of Westhampton Beach v. Village of

• Court: Court of Appeals for the Second Circuit
• Decided: January 6, 2015
• Docket: 14-1441
• Status: Unpublished

Opinion

14-1441 Jewish People for the Betterment of Westhampton Beach v. Village of Westhampton Beach

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 6th day of January, two thousand fifteen. 5 6 PRESENT: DENNIS JACOBS, 7 REENA RAGGI, 8 DEBRA ANN LIVINGSTON, 9 Circuit Judges. 10 11 - - - - - - - - - - - - - - - - - - - -X 12 Jewish People for the Betterment of 13 Westhampton Beach, Arnold Sheiffer, 14 Estelle Lubliner, 15 Plaintiffs-Appellants, 16 17 -v.- 14-1441 18 19 The Village of Westhampton Beach, East 20 End Eruv Association, Inc., Verizon 21 New York, Inc., and the Long Island 22 Lighting Company, d/b/a LIPA, 23 Defendants-Appellees. 24 - - - - - - - - - - - - - - - - - - - -X 25 26 FOR APPELLANTS: JONATHAN SINNREICH, with Timothy 27 F. Hill, Sinnreich Kosakoff & 28 Messina LLP, Central Islip, New 29 York.

1 1 FOR APPELLEES: YEHUDAH L. BUCHWEITZ, with 2 Robert G. Sugarman, Weil, 3 Gotshal & Manges LLP, New York, 4 New York, for East End Eruv 5 Association, Inc. 6 7 ERICA S. WEISGERBER, with 8 Michael E. Wiles, Debevoise & 9 Plimpton LLP, New York, New 10 York, for Verizon New York, Inc. 11 12 ZACHARY MURDOCK, with David 13 Lazer, Lazer Aptheker Rosella & 14 Yedid PC, Melville, New York, 15 for Long Island Lighting Company 16 d/b/a LIPA. 17 18 Appeal from judgments of the United States District 19 Court for the Eastern District of New York (Wexler, J.). 20 21 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED 22 AND DECREED that the judgment of the district court be 23 AFFIRMED. 24 25 Arnold Sheiffer, Estelle Lubliner, and Jewish People 26 for the Betterment of Westhampton Beach (collectively 27 “plaintiffs”) appeal from judgments of the United States 28 District Court for the Eastern District of New York (Wexler, 29 J.), dismissing their complaint. We assume the parties’ 30 familiarity with the underlying facts, the procedural 31 history, and the issues presented for review. 32 33 Plaintiffs allege violations of 42 U.S.C. § 1983 in 34 connection with the installation in Westhampton Beach, New 35 York of inconspicuous strips attached to utility poles. 36 Because the strips delineate an “eruv,” which is significant 37 to some as a matter of Jewish law, plaintiffs allege an 38 unconstitutional establishment of religion. We affirm. 39 40 1. Defendants raise two jurisdictional challenges, 41 neither of them persuasive. 42 43 a. Defendants argue that the order appealed from was 44 not a final judgment under 28 U.S.C. § 1291, because a 45 stipulation filed by plaintiffs dismissed their claims 46 without prejudice against defendant Village of Westhampton 47 Beach. But in this Circuit, a plaintiff may cure such a

2 1 defect in appellate jurisdiction by disclaiming an intent to 2 revive the dismissed claim (effectively, converting it to a 3 dismissal with prejudice, for reasons of estoppel). See 4 Leung v. N.Y. Univ., 495 F. App’x 124, 125 (2d Cir. 2012) 5 (citing Slayton v. Am. Exp. Co., 460 F.3d 215, 225 (2d Cir. 6 2006)). Plaintiffs’ reply brief disclaims any intent to 7 revive their dismissed claim against the Village of 8 Westhampton Beach. So that potential obstacle to appellate 9 jurisdiction is removed. 10 11 b. Defendants also argue that plaintiffs lack standing 12 under Article III, which limits the judicial power of the 13 United States to the resolution of cases and controversies. 14 U.S. Const. art. III, § 2. To satisfy this jurisdictional 15 requirement, “(1) the plaintiff must have suffered an 16 injury-in-fact; (2) there must be a causal connection 17 between the injury and the conduct at issue; and (3) the 18 injury must be likely to be redressed by a favorable 19 decision.” Cooper v. U.S. Postal Serv., 577 F.3d 479, 489 20 (2d Cir. 2009) (internal quotation marks omitted). 21 22 We have found standing in the Establishment Clause 23 context for a plaintiff who alleged that he “was made 24 uncomfortable by direct contact with religious displays.” 25 Id. at 491. Plaintiffs here allege that “[t]he eruv . . . 26 will not go unnoticed; rather, it will be a constant and 27 ever-present symbol, message and reminder to the community 28 at large, that the secular public spaces of the Village have 29 been transformed for religious use and identity.” Compl. 30 ¶ 1. Plaintiffs, in particular, allege that they “will be 31 confronted with the . . . religious display on a daily 32 basis.” Id. ¶ 5. Those allegations, such as they are, 33 suffice under our precedents. 34 35 Defendants seek to distinguish the eruv from the 36 religious displays at issue in Cooper on the ground (inter 37 alia) that the eruv is far less obtrusive, and that-- 38 contrary to plaintiffs’ allegations--the eruv does not 39 convey any message to the uninitiated. But those fact-based 40 arguments are insufficient at the pleadings stage, in which 41 we must assume the truth of plaintiffs’ well-pleaded factual 42 allegations.1 Other courts have found no standing problem

1 The parties submitted (extensive) factual material outside the pleadings. While the district court did not explicitly exclude this material, its decisions dismissing 3 1 in challenges to government involvement in the construction 2 of an eruv. See ACLU of N.J. v. City of Long Branch, 670 F. 3 Supp. 1293, 1294 (D.N.J. 1987). 4 5 2. On the merits, however, plaintiffs have failed to 6 state a claim for a violation of the Establishment Clause 7 against any of defendants-appellees. 8 9 a. Two of the remaining three defendants--Verizon New 10 York, Inc., and the East End Eruv Association, Inc.--are 11 plainly not state actors. See Compl. ¶ 11 (“EEEA is a not- 12 for-profit-corporation”); id. ¶ 13 (“Verizon New York Inc. 13 is a . . . subsidiary of Verizon Communications, Inc., a 14 publicly held corporation.”). The Establishment Clause is a 15 check on the power of our government. See, e.g., Cooper, 16 577 F.3d at 491. So all claims against these defendants 17 must be dismissed for lack of state action. 18 19 b. The remaining defendant, LIPA, does not dispute 20 that, as “a political subdivision of the State of New York,” 21 Compl. ¶ 12, it is a state actor. So we turn to the merits 22 of plaintiffs’ Establishment Clause claims against LIPA. 23 24 Although “much criticized,” the Lemon test still 25 governs cases alleging violations of the Establishment 26 Clause. Am. Atheists, Inc. v. Port Auth. of N.Y. & N.J., 27 760 F.3d 227, 238 n.12 (2d Cir. 2014). Under Lemon, for 28 “government action to satisfy the neutrality principle of 29 the Establishment Clause, it must (1) ‘have a secular 30 purpose,’ (2) have a ‘principal or primary effect that 31 neither advances nor inhibits religion,’ and (3) ‘not foster 32 an excessive government entanglement with religion.’” Id. 33 at 238 (quoting Lemon v. Kurtzman, 403 U.S. 602, 612-13 34 (1971)) (internal ellipses omitted). 35 36 An eruv is a “demarcation of a defined geographic area 37 within which adherents subscribing to a certain 38 interpretation of Jewish law believe that they may perform 39 certain activities that are otherwise prohibited on the 40 Jewish Sabbath and Yom Kippur.” Compl. ¶ 19. It is

plaintiffs’ claims give us no “reason to believe that the extrinsic evidence actually affected [its] decision[s]” and we accordingly conclude that the extrinsic material was “implicitly excluded.” See Amaker v. Weiner, 179 F.3d 48, 50 (2d Cir. 1999). 4 1 undisputed that the Westhampton eruv was delineated by 2 “nearly invisible” staves and wires attached to utility 3 poles. Compl. ¶¶ 1, 20. Plaintiffs do not allege that 4 these staves contain any overtly religious features that 5 would distinguish them to a casual observer as any different 6 from strips of material that might be attached to utility 7 poles for secular purposes. 8 9 Plaintiffs have not plausibly pleaded that there was no 10 secular purpose to the governmental action here--LIPA’s 11 entry into a paid licensing agreement allowing the 12 installation of items of religious significance on utility 13 poles. While plaintiffs repeatedly state in their complaint 14 that the establishment of an eruv serves no secular purpose, 15 the complaint does not contain similar allegations with 16 regard to LIPA’s action of permitting the EEEA to attach 17 lechis to its utility poles, and does not allege that LIPA 18 granted access to its utility poles in a non-neutral manner. 19 Neutral accommodation of religious practice qualifies as a 20 secular purpose under Lemon. See, e.g., Good News Club v. 21 Milford Cent. School, 533 U.S. 98, 114 (2001). And other 22 courts have held that absent evidence that the erection of 23 an eruv is facilitated in a non-neutral manner, permitting 24 an organization to attach lechis to utility poles serves the 25 secular purpose of accommodation. See, e.g., Long Branch, 26 670 F. Supp. at 1295-96. 27 28 In religious display cases, Lemon’s second 29 consideration collapses into the question whether a 30 “reasonable observer of the display in its particular 31 context [would] perceive a message of governmental 32 endorsement or sponsorship of religion.” Skoros v. City of 33 New York, 437 F.3d 1, 29 (2d Cir. 2006). No reasonable 34 observer who notices the strips on LIPA utility poles would 35 draw the conclusion that a state actor is thereby endorsing 36 religion, even assuming that a reasonable observer was aware 37 that a state actor (LIPA) was the entity that contracted 38 with a private party to lease the space. 39 40 Finally, it is undisputed that private parties will 41 finance, install, and maintain the strips; so there is no 42 risk of “excessive” government entanglement with religion.2

2 The license agreement between LIPA and EEEA permitting the EEEA to affix lechis to LIPA’s utility poles is referenced in the complaint and is integral to its 5 1 Compared with many government actions that have 2 survived the Lemon test, LIPA’s accommodation of the eruv 3 has more of a secular purpose, causes less of an advancement 4 of religion, and fosters less church-and-state entanglement. 5 See, e.g., Good News Club, 533 U.S. at 103-04 (allowing a 6 “private Christian organization for children” to hold 7 meetings at a public school “for the purpose of conducting 8 religious instruction and Bible study”); Lynch v. Donnelly, 9 465 U.S. 668, 671 (1984) (allowing a Christmas nativity 10 scene display, on public property, that included “the Infant 11 Jesus, Mary and Joseph, angels, shepherds, kings, and 12 animals,” up to five feet tall); Newdow v. Peterson, 753 13 F.3d 105, 107-08 (2d Cir. 2014) (upholding federal statutes 14 requiring the motto “in God We Trust” to appear on all U.S. 15 currency, reasoning that the motto’s “secular purpose” is a 16 “reference to our religious heritage”). A fortiori, LIPA’s 17 action permitting the EEEA to erect the eruv is not an 18 unconstitutional establishment of religion. 19 20 Every court to have considered whether similar 21 government actions violate the Establishment Clause has 22 agreed that they do not. See Long Branch, 670 F. Supp. at 23 1295 (“The city allowed the eruv to be created to enable 24 observant Jews to engage in secular activities on the 25 Sabbath. This action does not impose any religion on the 26 other residents of Long Branch.”); Smith v. Community Bd. 27 No. 14, 491 N.Y.S.2d 584, 586 (N.Y. Sup. Ct. 1985) (allowing 28 private parties to construct an eruv on public property “did 29 not establish religion but [was] a valid accommodation to 30 religious practice”); see also Tenafly Eruv Ass’n v. Borough 31 of Tenafly, 309 F.3d 144, 176 (3d Cir. 2002) (explaining 32 that a “reasonable, informed observer” of an eruv “would not 33 perceive an endorsement of Orthodox Judaism”).

allegations. See Compl. ¶ 42; L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 422 (2d Cir. 2011) (a document is “integral” to a complaint where the complaint “relie[s] heavily upon its terms and effect”) (internal quotation marks omitted). This agreement establishes (and plaintiffs do not contest) that the EEEA will finance, install, and maintain the strips. See License Agreement between Long Island Lighting Company D/B/A LIPA Through Its Agent National Grid Electric Services LLC and East End Eruv Association, Inc., Article V, § 1, Verizon Compl. Ex. B, Verizon N.Y., Inc. v. Vill. of Westhampton Beach, No. 11-252-cv (E.D.N.Y. Jan. 18, 2011), ECF No. 1. 6 1 For the foregoing reasons, and finding no merit in 2 plaintiffs’ other arguments, we hereby AFFIRM the judgments 3 of the district court. 4 5 FOR THE COURT: 6 CATHERINE O’HAGAN WOLFE, CLERK 7 8