Sukkah and Free Exercise Clause

From RRW

Anti-Semitism Or Ignorance?

Dear Trustees:

Given the review of our Association's rules now in progress, I write in the hope the following issue may be resolved in an amicable manner prior to next fall. If requested, I am willing to discuss this matter in person with the Trustees.

Please consider the following reason underpinning the free exercise of religion clause found in the First Amendment to the United States Constitution and  then consider our Association's rule regarding the building of a Succah. Ultimately, the rights granted a citizen of the United States by the American Constitution cannot be obviated by a State. County, City, or Village. This is most definitely the case with regard to our Association. 

The Free Exercise Clause provides that "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof."

"The Free Exercise Clause commits government itself to religious tolerance, and upon even slight suspicion that proposals for state intervention stem from animosity to religion or distrust of it practices, all officials must pause to remember their own high duty to the Constitution and to the rights it secures... Accordingly, Legislators may not devise mechanisms, overt or disguised to persecute or oppress a religion or its practice...Under the constitution, a law that is not neutral, but targets a specific action, and that does not apply generally to all people, but targets a specific group, must be justified by a compelling governmental interest and narrowly tailored to advance that interest.”

Justice Kennedy in Church of the Lukumi-Babalu Aye v. Hialeah

This famous case brought before the United States Supreme Court by the church in question, concerned the City of Hialeah outlawing the religious rite of animal sacrifice, the slaughtering of goats, practiced by the Lukumi-Babalu Aye. The Supreme Court ruled in favor of the Church with Justice Kennedy explaining the basis for that ruling.

As you may know, the construction of a Succah is a religious commandment found in the Hebrew Scriptures. Leviticus 23:42, 43 “You shall dwell in booths for seven days. All who are native Israelites shall dwell in booths that your generations may know that I made the children of Israel dwell in booths when I brought them out of the land of Egypt: I am the L-rd your G-d. ”

Last year, I attempted to build a Succah to fulfill the requirements of my faith. I informed our Association's Manager of my intent and he sent me the rule of the Association regarding this matter. I indicated I needed, because of my family requirements, to build a Succah slightly larger than the rules allowed and suggested the powers that be should have no problem with this modification.  Subsequently, I was barraged by neighbors telling me that doing what I wished was prohibited and that I would upset my neighbors. I therefore decided not to proceed, for as a new resident, and in light of the negativity which arose in the community upon my arrival, I wanted to start off on a cooperative note with my neighbors, this, in spite of the fact that as a Rabbi and more importantly, as a Jew, I was not fully able to observe the commandment of G-d.

I informed our Manager that I would not be building a Succah. Nevertheless, the very next day, the Manager sent me a formal violation for building the Succah. That same day an inspector from the Township came by and claimed I was building an illegal structure. All that he saw was the frame the workers I hired had started to construct. In spite of my protestations that we had decided not to build and that the frame will be removed by the workers, he issued a cease-and-desist order telling me I would be receiving a subpoena to appear in court in a few days and face the possibility of a fine of $2,000.00. I took the necessary steps to clarify this matter with the Township. The subpoena was not issued.

I asked the inspector how he learned of this situation.  His response - the management of your Association had called in a complaint.  I immediately contacted our Manager asking why he had done this as the day before I informed him I was not going to build a Succah. He has yet to reply. I do have in my possession the emails of both our Manager and myself regarding this situation.

I find the actions of our Manager quite bizarre. I would appreciate the Trustees clarifying whether this is the procedure our Manager has been instructed to follow in such situations.

It was my intent, and I advised our Manager of this fact, to build a permanent Succah, as has been the religious tradition of Jews for thousands of years, on the concrete patio in the rear of my home. It would blend in perfectly with my home and would not be seen by anyone except my neighbors to the right, that is, if they elected to peer over the hedge that divides our properties. They would see a screened in porch which blends in perfectly with the design and color of my home. Surely if the United States Constitution protects an individual’s religious right to slaughter a goat on his property, the erection of an unobtrusive structure such as a Succah, as mandated by the Hebrew Scriptures, which, according to both Judaism and Christianity define Jewish religious practice, is protected as well.

May I add a caveat to the above to provide you with a clearer perspective?  I note that folks, according to our Association's rules, are permitted to decorate their homes with lights and other decorations for the Christmas - Chanukah season. I’m sure you realize this is not a religious injunction of either Christianity or Judaism. Unlike the Biblical commandment to build a Succah, if one’s home is not adorned with such decorations, it does not pose any religious difficulty for the faithful. These decorations are placed on the front façade of the home and are quite visible to the passerby. They need not blend with the color or nature of the façade.

I would appreciate a timely reply.

Respectfully,

Rabbi xxxxx xxxxxxxxx