BEDFORD, N.Y. - A local religious community is alleging discrimination and a violation of its constitutional rights after being denied a permit for its annual Rosh Hashanah event in Mount Kisco.
Chabad of Bedford has been holding “Shofar in the Park,” for the past several years at the village/town’s Leonard Park, according to its spiritual leaders, Rabbi Arik and Sara Wolf.
The “peaceful, open-air gathering” has involved the reading of the Tashlich prayer, the sounding of the shofar, a brief meditation by worshippers, and the symbolic casting away of sins by tossing breadcrumbs into the pond.
It’s always been open to the public and usually lasts less than half an hour, they said, adding that there are no structures, amplification, signage, or disruption to other park visitors.
(This year Rosh Hashanah, aka the Jewish New Year, begins on Monday, Sept. 22, and ends on Wednesday, Sept. 24.)
The chabad is located in Bedford, but many of its members come from Mount Kisco. The Wolfs themselves are Mount Kisco residents.
This time around the permit was denied by the village/town’s Recreation Commission on the grounds that the park’s deed prohibits the holding of “religious events," they claimed.
The second justification they said they were given was that it's not based in Mount Kisco.
The Wolfs pointed out that Leonard Park has hosted things such as an Easter egg hunt, which they called “a tradition we fully respect and are glad the Christian community can enjoy.”
“This discrepancy is not just disappointing. It is discriminatory,” they claimed, citing constitutional guarantees of freedom of “religious expression.”
“The Supreme Court has repeatedly ruled that religious speech cannot be excluded from public spaces that are otherwise open to secular use. Denying our gathering is discrimination, and it is unlawful,” the chabad said in a social media post.
Asked why he thought this was happening now, Rabbi Wolf told Halston Media that the community’s only ever had a “wonderful relationship” with the village/town’s Parks & Recreation Department.
“So, it’s very strange to us,” he said, adding: “We’re scratching our heads, wondering what’s going on.”
Wolf told Halston Media that the chabad had reached out to village/town officials hoping they would change their minds.
It asked for a response no later than Aug. 25, but as of last week had not gotten one, he said.
Meanwhile, the Village Board voted on Tuesday, Sept. 2 to allow Mayor J. Michael Cindrich to authorize the village manager to hire outside counsel to advise it on “constitutional” issues related to the matter.
Cindrich, Deputy Mayor Theresa Flora, and Trustee Angie Garcia-Guerra cast “yay” votes. Trustee Karen Schleimer was a “nay” and Trustee Tom Luzio abstained, explaining that he didn’t have enough information to make a decision.
(The resolution hadn’t been on the agenda.)
The motion was an apparent reaction to an Aug. 18 letter from the chabad’s legal representative, Lauren Israelovitch, asking the Recreation Commission to reconsider the denial.
If it didn’t, then the organization was prepared to pursue “all available legal remedies,” including filing a “civil action in federal court,” she had concluded.
There were negative comments made on social media over the weekend that apparently bothered the mayor.
“This community is made up of good, caring people,” Cindrich said, adding that Mount Kisco’s various boards are populated by volunteers who strive to make decisions that, despite challenges, are in “the best interest” of everyone in the village.
He vowed to support and “defend” those boards and those decisions unless it’s proven that “they did something illegal.”
(Cindrich’s wife, Linda, is listed as the Recreation Commission’s vice president on the village/town’s website.)
When asked for comment later by Halston Media, Cindrich said in a Sept. 3 email: “The classic response and advice of counsel -- when threatened with litigation I cannot respond.”
Village Manager Ed Brancati also declined to comment last week.
Earlier in the meeting, Luzio, an attorney, raised concerns about the First Amendment.
He didn’t believe that any deed could legally exclude constitutional rights, whether under the state or the federal government’s purview.
“I’m sure there were many deeds in the South back in the Jim Crow days that said parks would be for whites only,” Luzio said, adding that he was not saying that the deed contained anything unlawful but just wanted the village’s attorney to “take a look at it.”
Luzio wanted the board to discuss things further before it took a vote -- hopefully in advance of Rosh Hashanah’s arrival.
Echoing that sentiment at the meeting was New Castle resident Warren Gottlieb.
A member of Chabad of Bedford who speaking only for himself, he noted that “this isn’t the first year the permit has been sought” and wondered what had changed.
Gottlieb assured the board that merely questioning the commission’s decision wasn’t intended to be an “attack on anyone’s integrity or motives.”
“But there’s a flip side to this. I would also ask the board to recognize what the Jewish community is going through right now” and that its perception that it’s being pushed out of a public space – whether right or wrong – is not “unreasonable,” he said.
“Our freedoms are very important to us, not just ours, but all groups. Our freedoms rise and fall with everybody else’s,” Gottlieb said, adding: “If I saw any other similarly situated group treated this way, I would come and say the same thing.”
Deeds can contain any number of restrictions, but that doesn’t necessarily mean that they’re “constitutional” or “enforceable.”
The situation needs to be scrutinized, said Gottlieb, identifying himself as a “proud Jewish father, husband, and someone who loves Mount Kisco and my own community.”
Again, he insisted he was in no way suggesting that the village/town or any of its entities did anything wrong but they should be aware of where the blowback is coming from.
“There’s a tremendous amount of violence against the Jewish people right now. This is not a not a great time for us and ‘never again’ means something to us,” Gottlieb said.
“Again, it’s not personal. I was surprised when I saw the (social media) post because I know Mount Kisco and I love Mount Kisco. So take that for what it’s worth,” he explained.
Taking Action
Wolf was still holding out hope that the village/town will “do the right thing.”
“We are totally forgiving, so long as we can do what we need to do,” he told Halston Media.
The village/town does host menorah lighting ceremonies on the first night of Hanukkah in front of Village Hall.
Last month, it approved a request for Tashlich services from Bet Torah, a conservative synagogue in Mount Kisco. Those will be held on Tuesday, Sept. 23, and Wednesday, Sept. 24, behind the Henry V. Kensing Memorial Library on East Main Street.
(Branch Brook, a tributary of the Kisco River, runs behind the property.)
In the meanwhile, Chabad of Bedford is asking “friends, neighbors, and supporters” to contact Cindrich and Brancati to “respectfully express” their “disappointment” in this decision to deny the permit and to “urge them to uphold the rights of all religious communities.”
“This is not just about one event. It’s about protecting our freedom to gather, to pray, and to celebrate who we are – in the same public spaces that welcome others to do the same,” it added.
The Mount Kisco Parks & Recreation folks declined to comment Tuesday, telling Halston Media that all questions about the situation were to be referred to the village manager’s office.
Chabad's Argument
Israelovitch, a member of Chabad of Bedford, is a senior litigation counsel with the National Jewish Advocacy Center, a nonprofit legal organization dedicated to “combating antisemitism in all its forms.”
According to an Aug. 18 letter sent by Israelovitch to the village/town, the local Recreation Commission denied the Wolf’s permit application on two grounds: that Leonard Park’s deed prohibits religious events in the park and that Chabad of Bedford is not located in Mount Kisco.
She called both rationales “legally flawed.”
Therefore, the denial of the permit “violates federal and state constitutional guarantees, contradicts Supreme Court precedent, misreads the deed’s text and intent, and reflect impermissible religious discrimination,” Israelovitch argued.
According to the counsel, the deed, dated July 15, 1941, doesn’t contain a “blanket prohibition” against religious activity but only bans the erection of permanent or temporary buildings or structures “for memorial, religious, or educational purposes.”
It expressly permits “open-air musical and dramatic presentations” as well as “patriotic and other ceremonies,” Israelovitch added.
Because the Tashlich service doesn’t involve any structures, amplification, or religious display, it “falls squarely within the category of ceremonies contemplated and permitted by the deed,” she said, using case law to back up her contention that the permit denial – “based solely on its religious nature” – violates the First Amendment, the state Constitution, and federal law.
According to Israelovitch, the U.S. Supreme Court “has repeatedly and unequivocally held that excluding religious speech from public property otherwise open to secular expression constitutes impermissible viewpoint discrimination.”
She cited Widmar v. Vincent, where the court found that a public university that had opened its facilities to student groups cannot constitutionally exclude student religious organizations “based solely on the religious content of its speech.”
Israelovitch also pointed to Lamb’s Chapel v. Center Moriches Union Free School District where the court unanimously invalidated a school district’s refusal to allow a religious group to use its facilities to “show a film series on family values.”
The court explained that the First Amendment “forbids the government to regulate speech in ways that favor some viewpoints or ideas at the expense of others,” she said.
It “reinforced” that doctrine in the 2001 case Good News Club v. Milford Central School District by holding that “a public school could not exclude a religious club from meeting on school grounds where it permitted secular club to do so,” she said.
Such exclusions, Israelovitch said, constitute “impermissible viewpoint discrimination in a limited public forum.”
She also brought up the Religious Land Use and Institutionalized Persons Act which, she said prohibits government entities from “imposing land use regulations that substantially burden religious exercise unless the restriction is the least restriction means of further a compelling governmental interest.”
Israelovitch argued that in the Leonard Park case, “there is absolutely no compelling government interest to deny the permit,” because “the only basis proffered for denial … is the language contained in the deed, which she said “contains no language barring religious ceremonies of this nature.”
“Invoking it (the deed) now, selectively and without prior enforcement” doesn’t fly, Israelovitch contended.
The state Constitution independently guarantees the free exercise of religion, she said, so denying access to “a public park for a peaceful religious ceremony – particularly one that is not precluded either by the deed or any applicable zoning ordinance” violates both its “letter and spirit.”
Considering the fact that the Recreation Commission has continually approved permits for annual Easter egg hunts at Leonard Park, denying a Jewish religious organization the right to hold an event there “raises grave concerns of selective enforcement and impermissible religious discrimination,” Israelovitch claimed.
Calling events egg hunts, do not alter their religious nature” because they are held in connection with the Easter holiday and “are widely understood to be expressions of Christian religious tradition,” she added.
“Government favoritism toward such events – while excluding comparable Jewish observances – cannot withstand constitutional scrutiny,” Israelovitch opined.
She also blasted the argument that the permit should be denied based on the organization’s physical location.
“The deed requires that only users of the park fall within that geographic scope,” she said, pointing out that the folks applying for the permit – Rabbi Arik and Sara Wolf – are Mount Kisco residents as well as Chabad of Bedford’s founders and designated leaders.
While it’s in the town of Bedford on Route 172, or South Bedford Road, just slightly east of Sarles Street, its mailing address is Mount Kisco, N.Y.
Furthermore, Israelovitch wrote, “Shofar in the Park” has always, and will continue to be, open to all members of the public.
She asked the Recreation Commission to reconsider its position.
If it doesn’t, then Chabad of Bedford was prepared to pursue “all available legal remedies,” including filing a “civil action in federal court,” Israelovitch wrote.
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