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Abstract

Under Jewish religious law, on the sabbath one does no work. The prohibition on work extends to moving or carrying objects across a public space. To meet the needs of the observant, the rabbis developed the idea of the Eruv; a “fence” inside which Jews can carry on certain activities during Shabbat. That “fence” often can be a simple, continuous wire which marks out an area. But the wire often traverses (and is held up by) poles on public property, and consequently, the Eruv triggers important policy questions, such as (i) should public property be used to enable a minority faith community to observe their beliefs? and (ii) how are religious and secular citizens to live side-by-side in a way enabling each to pursue and enjoy their respective rights?

This article reviews the way in which these issues are addressed for Eruvs in the common-law world, giving examples from England, the United States, Canada and Australia. Too often, regulatory barriers are imposed selectively to hinder Jewish religious practice, even when visual amenity arguments fail. In jurisdictions other than the NSW Land and Environment Court, Eruv proponents have succeeded.

The recent long-running battle to establish an Eruv for the St Ives Jewish community exemplified how a local government can utilise legal mechanisms to prefer freedom from religion over freedom for religion. Eventually, Kuringai Council backed down, but only after state members of parliament and local Catholic and Anglican religious leaders spoke up for their Jewish brethren, and, regrettably, only after much public money had been spent to delay and hinder religious freedom for the small, local Jewish community.

About the Author

David D Knoll AM is a former member of the Advisory Board of Multicultural NSW and a Past President of the NSW Jewish Board of Deputies. He is a practicing barrister at 9 Selborne Chambers.

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