14‐1441
Jewish People for the Betterment of Westhampton Beach v. Village of Westhampton Beach
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2014
(Argued: November 21, 2014 Decided: January 6, 2015
Reissued as Opinion: February 11, 2015)
Docket No. 14‐1441
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Jewish People for the Betterment of
Westhampton Beach, Arnold Sheiffer,
Estelle Lubliner,
Plaintiffs‐Appellants,
‐ v.‐
The Village of Westhampton Beach, East
End Eruv Association, Inc., Verizon New
York, Inc., and the Long Island Lighting
Company, d/b/a LIPA,
Defendants‐Appellees.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x
Before: JACOBS, RAGGI, and LIVINGSTON, Circuit Judges.
Appeal from judgments of the United States District Court for the Southern
District of New York (Wexler, J.) dismissing a suit brought under 42 U.S.C. § 1983
and the Establishment Clause of the United States Constitution. We affirm.
JONATHAN SINNREICH, with Timothy F.
Hill, Sinnreich Kosakoff & Messina LLP,
Central Islip, New York, for Appellants.
YEHUDAH L. BUCHWEITZ, with Robert
G. Sugarman, Weil, Gotshal & Manges LLP,
New York, New York, for Appellee East
End Eruv Association, Inc.
ERICA S. WEISGERBER, with Michael E.
Wiles, Debevoise & Plimpton LLP, New
York, New York, for Appellee Verizon New
York, Inc.
ZACHARY MURDOCK, with David Lazer,
Lazer Aptheker Rosella & Yedid PC,
Melville, New York, for Appellee Long
Island Lighting Company d/b/a LIPA.
PER CURIAM:
Plaintiffs Arnold Sheiffer, Estelle Lubliner, and Jewish People for the
Betterment of Westhampton Beach filed this action for declaratory and injunctive
relief to prevent the creation in Westhampton Beach of an “eruv,” a delineated
geographic area significant to certain adherents of Judaism. Plaintiffs now
2
appeal from judgments entered on February 4, 2013, and May 21, 2013, in the
United States District Court for the Eastern District of New York (Leonard D.
Wexler, J.) in favor of East End Eruv Association, Inc. (“EEEA”), Verizon New
York, Inc. (“Verizon”), and Long Island Lighting Company (“LIPA”) pursuant to
Federal Rules of Civil Procedure 12(b)(6) and 12(c). Plaintiffs contend that the
district court erred as a matter of law in concluding that their complaint failed to
state plausible claims for relief under 42 U.S.C. § 1983 for violation of the
Establishment Clause of the United States Constitution. See U.S. Const. amend. I.
The argument is without merit, and we therefore affirm.
I
In 2010, EEEA entered into licensing agreements with Verizon and LIPA
that allowed EEEA, for a fee, to finance, install, and maintain plastic strips known
as “lechis” on utility poles owned by Verizon and LIPA and located in
Westhampton Beach, New York.1 The agreements are not exclusive; LIPA may
1
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 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 if 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
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grant similar attachment rights to other parties.
Plaintiffs allege that the purpose of these contracts is to allow EEEA to
establish an “eruv,” i.e., a “continuous physical boundary” and “demarcation of
a defined geographic area within which adherents subscribing to a certain
interpretation of Jewish law believe that they may perform certain activities that
are otherwise prohibited on the Jewish Sabbath and Yom Kippur.” Compl. ¶ 19.
Such an eruv will be created by attaching plastic strips or “lechis,” “upwards of
forty inches in length,” to Verizon’s and LIPA’s utility poles. Id. ¶ 21. Plaintiffs
assert that “[t]he eruv . . . will not go unnoticed” but, rather, “will be a constant
and ever‐present symbol, message and reminder to the community at large, that
the secular public spaces of the Village have been transformed for religious use
and identity.” Id. ¶ 1. Plaintiffs further allege that they “will be confronted with
the EEEA’s religious display on a daily basis.” Id. ¶ 5.
Based on these allegations, plaintiffs sought (1) a declaration that the
proposed eruv violates the Establishment Clause, and (2) an injunction
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.
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preventing its creation. EEEA and Verizon moved to dismiss the complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6), which the district court
granted on February 4, 2013. LIPA then moved for judgment on the pleadings
pursuant to Federal Rule of Civil Procedure 12(c), which the district court
granted on May 21, 2013. Plaintiffs dismissed the action without prejudice as to
the remaining defendant, Westhampton Beach, pursuant to Federal Rule of Civil
Procedure 41(a)(1)(A)(ii). This timely appeal followed.
II
Defendants raise two jurisdictional challenges, neither of them persuasive.
A
Defendants argue that the order appealed from was not a final judgment
under 28 U.S.C. § 1291, because a stipulation filed by plaintiffs dismissed their
claims without prejudice against defendant Village of Westhampton Beach. But in
this Circuit, a plaintiff may cure such a defect in appellate jurisdiction by
disclaiming an intent to revive the dismissed claim (effectively, converting it to a
dismissal with prejudice, for reasons of estoppel). See Leung v. N.Y. Univ., 495 F.
App’x 124, 126 (2d Cir. 2012) (citing Slayton v. Am. Exp. Co., 460 F.3d 215, 225
(2d Cir. 2006)). Plaintiffs’ reply brief disclaims any intent to revive their
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dismissed claim against the Village of Westhampton Beach. So that potential
obstacle to appellate jurisdiction is removed.
B
Defendants also argue that plaintiffs lack standing under Article III, which
limits the judicial power of the United States to the resolution of cases and
controversies. U.S. Const. art. III, § 2. To satisfy this jurisdictional requirement,
“(1) the plaintiff must have suffered an injury‐in‐fact; (2) there must be a causal
connection between the injury and the conduct at issue; and (3) the injury must
be likely to be redressed by a favorable decision.” Cooper v. U.S. Postal Serv.,
577 F.3d 479, 489 (2d Cir. 2009) (internal quotation marks omitted).
We have found standing in the Establishment Clause context for a plaintiff
who alleged that he “was made uncomfortable by direct contact with religious
displays.” Id. at 491. Plaintiffs here allege that “[t]he eruv . . . will not go
unnoticed; rather, it will be a constant and ever‐present symbol, message and
reminder to the community at large, that the secular public spaces of the Village
have been transformed for religious use and identity.” Compl. ¶ 1. Plaintiffs, in
particular, allege that they “will be confronted with the . . . religious display on a
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daily basis.” Id. ¶ 5. Those allegations, such as they are, suffice under our
precedents.
Defendants seek to distinguish the eruv from the religious displays at issue
in Cooper on the ground (inter alia) that the eruv is far less obtrusive, and
that‐‐contrary to plaintiffs’ allegations‐‐the eruv does not convey any message to
the uninitiated. But those fact‐based arguments are insufficient at the pleadings
stage, in which we must assume the truth of plaintiffs’ well‐pleaded factual
allegations.2 Other courts have found no standing problem in challenges to
government involvement in the construction of an eruv. See ACLU of N.J. v. City
of Long Branch, 670 F. Supp. 1293, 1294 (D.N.J. 1987).
III
On the merits, however, plaintiffs have failed to state a claim for a violation
of the Establishment Clause against any of defendants‐appellees.
2
The parties submitted (extensive) factual material outside the
pleadings. While the district court did not explicitly exclude this material, its
decisions dismissing 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).
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A
Two of the remaining three defendants‐‐Verizon New York, Inc., and the
East End Eruv Association, Inc.‐‐are plainly not state actors. See Compl. ¶ 11
(“EEEA is a not‐for‐profit‐corporation”); id. ¶ 13 (“Verizon New York Inc. is a . . .
subsidiary of Verizon Communications, Inc., a publicly held corporation.”). The
Establishment Clause is a check on the power of our government. See, e.g.,
Cooper, 577 F.3d at 491. So all claims against these defendants must be dismissed
for lack of state action.
B
The remaining defendant, LIPA, does not dispute that, as “a political
subdivision of the State of New York,” Compl. ¶ 12, it is a state actor. So we turn
to the merits of plaintiffs’ Establishment Clause claims against LIPA.
Although “much criticized,” the Lemon test still governs cases alleging
violations of the Establishment Clause. Am. Atheists, Inc. v. Port Auth. of N.Y. &
N.J., 760 F.3d 227, 238 n.12 (2d Cir. 2014). Under Lemon, for “government action
to satisfy the neutrality principle of the Establishment Clause, it must (1) ‘have a
secular purpose,’ (2) have a ‘principal or primary effect that neither advances nor
inhibits religion,’ and (3) ‘not foster an excessive government entanglement with
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religion.’” Id. at 238 (quoting Lemon v. Kurtzman, 403 U.S. 602, 612‐13 (1971))
(internal ellipses omitted).
An eruv is a “demarcation of a defined geographic area within which
adherents subscribing to a certain interpretation of Jewish law believe that they
may perform certain activities that are otherwise prohibited on the Jewish
Sabbath and Yom Kippur.” Compl. ¶ 19. It is undisputed that the Westhampton
eruv was delineated by “nearly invisible” staves and wires attached to utility
poles. Id. ¶¶ 1, 20. Plaintiffs do not allege that these staves contain any overtly
religious features that would distinguish them to a casual observer as any
different from strips of material that might be attached to utility poles for secular
purposes.
Plaintiffs have not plausibly pleaded that there was no secular purpose to
the governmental action here: LIPA entered into a paid licensing agreement
allowing the installation of items of religious significance on utility poles. While
plaintiffs repeatedly state in their complaint that the establishment of an eruv serves
no secular purpose, the complaint does not contain similar allegations with
regard to LIPA’s action of permitting the EEEA to attach lechis to its utility poles,
and does not allege that LIPA granted access to its utility poles in a non‐neutral
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manner. Neutral accommodation of religious practice qualifies as a secular
purpose under Lemon. See, e.g., Good News Club v. Milford Cent. School, 533
U.S. 98, 114 (2001). And other courts have held that, absent evidence that the
erection of an eruv is facilitated in a non‐neutral manner, permitting an
organization to attach lechis to utility poles serves the secular purpose of
accommodation. See, e.g., Long Branch, 670 F. Supp. at 1295‐96.
In religious display cases, Lemon’s second consideration collapses into the
question whether a “reasonable observer of the display in its particular context
[would] perceive a message of governmental endorsement or sponsorship of
religion.” Skoros v. City of New York, 437 F.3d 1, 29 (2d Cir. 2006). No
reasonable observer who notices the strips on LIPA utility poles would draw the
conclusion that a state actor is thereby endorsing religion, even assuming that a
reasonable observer is aware that a state actor (LIPA) was the entity that
contracted with a private party to lease the space.
Finally, it is undisputed that private parties will finance, install, and
maintain the strips; so there is no risk of “excessive” government entanglement
with religion.
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Compared with many government actions that have survived the Lemon
test, LIPA’s accommodation of the eruv has more of a secular purpose, causes less
of an advancement of religion, and fosters less church‐and‐state entanglement.
See, e.g., Good News Club, 533 U.S. at 103‐04 (allowing a “private Christian
organization for children” to hold meetings at a public school “for the purpose of
conducting religious instruction and Bible study”); Lynch v. Donnelly, 465 U.S.
668, 671 (1984) (allowing a Christmas nativity scene display, on public property,
that included “the Infant Jesus, Mary and Joseph, angels, shepherds, kings, and
animals,” up to five feet tall); Newdow v. Peterson, 753 F.3d 105, 107‐08 (2d Cir.
2014) (upholding federal statutes requiring the motto “in God We Trust” to
appear on all U.S. currency, reasoning that the motto’s “secular purpose” is a
“reference to our religious heritage”). A fortiori, LIPA’s action permitting the
EEEA to erect the eruv is not an unconstitutional establishment of religion.
Every court to have considered whether similar government actions violate
the Establishment Clause has agreed that they do not. See Long Branch, 670 F.
Supp. at 1295 (“The city allowed the eruv to be created to enable observant Jews
to engage in secular activities on the Sabbath. This action does not impose any
religion on the other residents of Long Branch.”); Smith v. Community Bd. No.
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14, 491 N.Y.S.2d 584, 586 (N.Y. Sup. Ct. 1985) (allowing private parties to
construct an eruv on public property “did not establish religion but [was] a valid
accommodation to religious practice”); see also Tenafly Eruv Ass’n v. Borough of
Tenafly, 309 F.3d 144, 176 (3d Cir. 2002) (explaining that a “reasonable, informed
observer” of an eruv “would not perceive an endorsement of Orthodox
Judaism”).
CONCLUSION
For the foregoing reasons, and finding no merit in plaintiffs’ other
arguments, we hereby AFFIRM the judgments of the district court.
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