The federal court decision in the Yeshiva Naos Yaakov case is a significant victory for religous liberties in general and the Jewish community specifically. We are gratified that U.S. District Judge Freda Wolfson upheld the yeshivah’s contention that the application of zoning regulations by Ocean Township, N.J., was, in fact, a matter of religious discrimination.
The township’s claim that its denial of a variance was based on impartial, “neutral ordinances” was rejected by the court. It found, instead, that it was a violation of RLUIPA, the Religious Land Use and Institutionalized Persons Act, which prohibits local boards from exploiting zoning laws in such a way as to interfere with freedom of religion.
As Roman P. Storzer, attorney for the yeshivah, characterized it ahead of a recent hearing: “This is bigotry masked as a zoning hearing, pure and simple. The situation that the yeshivah has faced here is exactly why Congress decided that RLUIPA’s protections are necessary.”
Despite the township’s careful avoidance of any anti-Semitic comment in its official statements, the local clamor against the yeshivah and the Lakewood Orthodox community in general belied its sanctimonious claims of pure zoning considerations. The blatant anti-Semitic remarks cited by the yeshivah’s attorney in court, as well as such tactics as packing hearings and imposing unconscionable delays, spoke for themselves.
The ugly remarks need not be repeated here, but there was little doubt, including in Judge Wolfson’s mind, that the zoning board voted in accordance with such sentiments. That vote, in December 2015, to deny the application for a variance, citing a lack of information about the project, was nothing short of bizarre as the questions posed during the hearings were so clearly irrelevant that their most obvious purpose was to cast aspersions.
We hope that now the yeshivah will be allowed to expand its dormitory facilities to accommodate the growth of the institution, and the talmidim will be able to pursue their studies undisturbed. Ken yirbu.
But victory though it was, cause for celebration it is not. Once again, what should have been a routine matter of granting a legitimate zoning variance became an instance of hate-based obstructionism. When the opaque refusals of the local officialdom failed to discourage the yeshivah, vile opposition to religious Jewry surfaced.
The court decision affirms that the law of the land is religious tolerance, and that intolerance by stealth is an affront to American traditions of freedom.
But as a court victory, while it removes the legal obstacle to the Orthodox community’s natural growth, it does not remove the hatred which created that obstacle in the first place. This a court ruling cannot do.
That the battle is not over is clear. In a statement welcoming the court’s decision, Rabbi Avi Schnall, Agudath Israel’s New Jersey director, said, “This decision … sends a clear message that our religious rights will not be trampled upon and we hope this will serve as an example to other municipalities.”
Among those other municipalities is that of Toms River, New Jersey. The same battle is being fought there. Rabbi Moshe Gourarie, who operates the local Chabad house, is also caught up in a legal struggle to maintain the Shabbos minyan in his home against charges of land-use violations.
Officially, the issue has been presented by the municipality as one of noise pollution and traffic created by Rabbi Gourarie’s little group of 10 to 20 participants. But the swastika painted on his driveway a few weeks ago told a different story.
Passage of RLUIPA in 2000 was a milestone that should provide other victories, in Toms River and elsewhere. We are thankful that there is such legal recourse.
But the origin of RLUIPA reflected a troubling situation. In the late 1990s, multiple Congressional hearings revealed overwhelming evidence that local boards tailored zoning and land-use regulations to fit their prejudices. The new law put the burden of proof on officials to show “compelling reason” for the “substantial burdens” they seek to impose on religious groups.
It took years to secure passage of RLUIPA. It will take more years before it becomes sufficiently established by court rulings that municipalities will give up on the land-use strategy altogether. But with continued patience and perseverance, that day may also come.
As for the anti-Semitism that lurks behind such behavior and all-too-often shows itself in all its ugliness, we will have to wait for a different era entirely. May it come speedily, in our days.