Putting God Between the Lines

In the tempestuous process of defining communities of interest for legislative redistricting—a process that will inevitably spark disagreement, dissatisfaction, and dissent—deferring boundary-setting to a physical, objective metric established by a community itself would appear to be a safe harbor, insulating line-drawers from criticism. The eruv—a physical structure encircling a Jewish community which
allows observant Jews to carry items outside the home on Shabbat—presents redistricters with an attractive way to craft districts that give political voice to the Jewish community. However, this Note argues that rather than serving as a safe harbor, this use of the eruv in redistricting presents a constitutional hazard, as it may run afoul of the Establishment Clause. The Supreme Court’s Establishment Clause jurisprudence clearly forbids a state from “delegat[ing] its civic authority to a group chosen according to a religious criterion.” The use of an eruv as a basis for redistricting, this Note argues, is precisely such a delegation: The state delegates its power to determine the boundaries of a community and the resultant district lines to religious authorities and a religious community, bucking the neutrality commanded by the Establishment Clause. While the precise shape of a particular district and the inputs leading to its creation will determine the presence of an Establishment Clause violation, the potential for such a violation in the case of eruv-based districts—and the concomitant potential for the politicization of religion and increased political division—has heretofore gone unnoticed.