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4 Nat'l Jewish L. Rev. 67 (1989)
The Eruv: Can Government Constitutionally Permit Jews to Build a Fictional Wall without Breaking the Wall between Church and State

handle is hein.journals/natjlr4 and id is 75 raw text is: NOTES THE ERUV: CAN GOVERNMENT CONSTITUTIONALLY PERMIT JEWS TO BUILD A FICTIONAL WALL WITHOUT BREAKING THE WALL BETWEEN CHURCH AND STATE JOSHUA METZGER* INTRODUCTION On the Jewish Sabbath,' observers of Jewish law2 are prohibited from engaging in certain categories of work.' One of these categories is carrying.' Jews cannot carry an object on the Sabbath within the public * J.D., New York University School of Law, 1989. I wish to acknowledge, with deep gratitude, Michael Broyde for his continual willingness and eagerness to assist in this Note. I also wish to thank Avram Metzger, Ethan Orlinsky and Alan Stadtmauer for their comments and corrections. I also would like to extend a special note of gratitude to Dean John Sexton and former Dean Norman Redlich for encouraging me to pursue this subject. Their seminar on the Religion Clause at New York University School of Law was one of the most rewarding experiences I have had as a law student. 1. The Jewish Sabbath lasts from sundown Friday until Saturday night, approximately one hour after sunset. J. CARo, SHULCHAN ARUCH, Orach Chaim, § 260:1 and commentaries ad locum. 2. Jewish law is composed of written and oral law. The written law is the Torah, the first five books of the Old Testament. The oral law is the Talmud which is composed of Mishnah and Gemara. For a detailed explanation of the definition and structure of Jewish law, see Rosenberg & Rosenberg, In the Beginning: The Talmudic Rule Against Self Incrimination, 63 N.Y.U. L. REV. 955, 966-74 (1988). The various branches of Judaism each have their own definition of Jewish law and its observance. The context of this paper refers to those Jews who observe the prohibition of carrying on the Sabbath and the use of an eruv to allow carrying. Orthodox Jews and Conservative Jews observe the prohibition of carrying and the use of an eruv. See J. CARO, supra note 1, at § 366-95; 1. KLEIN, A GUIDE TO RELIGIOUS PRACTICE, 81-83 (1979). Reform Jews generally do not observe the prohibition of carrying, CENTRAL CONFERENCE OF AMERICAN RABBIS, AMERICAN REFORM RESPONSA 117 (1983), nor do they feel the need for an eruv. W. JACOB, CONTEMPORARY AMERICAN REFORM RESPONSA 269 (1987). 3. The prohibition from doing work on the Sabbath is derived from a verse in the Old Testament, but on the seventh day thou shalt rest, Exodus 23:12; 34:21. This is a positive commandment. Working on the Sabbath also violates a negative biblical commandment, Thou shalt not do any manner of work, Exodus 20:10; Deuteronomy 5:14. See MAIMONIDIES, MISHNAH TORAH, BOOK OF SEASONS, Laws of Sabbath Ch.1:1. 4. The Mishnah of Shabbat lists thirty-nine categories of labors prohibited on the Sabbath, MISHNAH SHABBAT, 7:2. Carrying is one of them. The prohibition of carrying from a private place to a public place is derived from the verse, let neither man nor woman make any more work for the offering of the sanctuary. So the people were restrained from bringing. Exodus 36:6. The prohibition of carrying solely within a public domain is based on tradition and is a biblical prohibition. See MAIMONIDIES, supra note 3, at Ch. 12:8. 67

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