Government at times may be forced to encroach on religious liberty in the face of overriding need, such as the public’s safety. But laws in the United States that breach constitutional freedoms must withstand what is known as “strict scrutiny.” They must be shown to be essential, and the best and sole vehicle capable of accomplishing the desired goal.
The plaintiffs in oral arguments stated that the District Court erred by allowing the City to impinge on religious freedom by regulating bris milah, without even attempting to prove it has a legitimate need to do so.
The plaintiffs asked the Second Circuit to overturn that decision and to rule that “strict scrutiny” be applied to the parental consent law.
The City countered that this high standard isn’t necessary. “Your honors, our sole purpose with the parent consent regulation is to save lives. There is no intent whatsoever to attack religion,” said City attorney Mordechai Newman. He argued that the so-called dangers of mbp are so self-evident, there is no need for strict scrutiny.
The plaintiffs, represented by Jones Day attorney Shay Dvoretzky, challenged this assertion. Dvoretzky argued that the City conducted a 7-year campaign against mbp, based on a theory that has never been proven. He pointed to explicit statements announcing the City’s intentions to uproot the practice, culminating in the “consent law.” This is indeed religious targeting, he said, as it singles out one tiny risk factor in neonatal herpes to the exclusion of all others, including factors that experts agree account for a majority of infant herpes cases.
He said the DOH’s marshaling of its broad powers against mbp, when nothing remotely comparable has been attempted to neutralize other risks, undermines the City’s assertion that “saving lives” in the sole motivation behind the consent law.
Dvoretzky argued that no credible evidence exists to support the City’s allegations that mbp is in any way dangerous to babies. With only the shabbiest of research to back up its claims, the government’s intrusion into religious practice runs afoul of the Constitution.
In a brief recap of the case, major Jewish organizations have sued the City over a law that for the first time in the history of the United States, gives the government power to regulate bris milah. The law – seemingly innocuous until one looks at it closely – requires a mohel to secure consent forms from parents of a newborn before he performs metzitzah b’peh.
Parents must acknowledge in writing that the practice is potentially deadly – a position rejected by vast numbers of Orthodox Jews and disputed by medical experts. The parents must affirm that the Department of Health advises them not to perform mbp, but they choose to do so regardless.
A district court in January 2012 denied a motion by Jewish groups for a preliminary injunction against the consent law. That decision was appealed to the Second Circuit who heard oral arguments by the parties last week.
Far from offering proof that tampering with bris milah is absolutely essential for the public good, the City refuses to support its allegations by employing DNA testing, the gold standard for identifying the source of a herpes virus, the plaintiffs had argued in their brief.
Rejecting the only foolproof method of pinning down the source of infection “fatally undermines the City’s claims,” the brief said.
One of the judges at the appeal hearing questioned the City attorney about the refusal to employ DNA testing. The response was that it wasn’t necessary as it’s axiomatic that placing one’s mouth on an open wound maximizes the risk of transmitting infection.
Theory and practice are at times far apart, countered Dvoretzky, citing other medical puzzles in which a predicted outcome, for reasons unknown, fails to occur. For example, babies nursed by a mother with a herpes infection should theoretically contract the infection through the breast milk. Yet for some reason, this doesn’t happen.
At the end of the day, he said, citing medical experts, no one can point to a single instance anywhere in the world in which mbp was proven to have caused neonatal herpes. Theory alone is insufficient to justify a law abolishing a religious practice, he said.
FREEDOM NOT TO SPEAK
Compelling mohalim to serve as the government’s mouthpiece in communicating information they reject as lies runs counter to the free exercise of speech clause in the Constitution, the plaintiffs argued at the appeal. The consent law forces mohalim to transmit advice to Jewish parents to boycott a practice sacred to millions of Jews throughout history.
At the same time, it compels speech by forcing mohalim to put their signature to assertions that essentially accuse mbp – and by extenstion, the mohalim themselves – of killing babies.
One of the judges at the appeal hearing offered this compromise: Can the government compel a person to transmit a message he rejects provided it grants him an opportunity to assert his true opinion at the same time? What if the mohel is free to express his disagreement with the government’s advice against mbp in the same breath, so to speak, as he delivers the government’s message?
Embedded in the “free exercise clause” is freedom not to speak when one doesn’t wish to, Dvoretzky responded. The right to express one’s disagreement doesn’t remove the element of coercion in being forced to relay a message one objects to.
Very likely a mohel would prefer not to mention the government’s disdain for a rite that is sacred to religious Jews, especially prior to an intensely religious and solemn bris ceremony. Yet, the law won’t allow him to proceed with mbp, an inseparable part of the bris for many Jews, unless he does so.
Questioned by the judges as to why the government chose to use mohalim as the vehicle for the DOH’s advice against mbp when countless alternatives exist to get the message out, the City’s attorney said that this is the only method guaranteed to reap “100 percent” results.
Dvoretzky challenged that claim. Since the regulation went into effect, he said, he’s been told of almost 100 circumcisions that took place in New York at which the mohel was expected to perform mbp but neither parent had brought a consent form.
Besides putting the mohel into a painful predicament, that repeated scenario underscored the drawbacks of counting on getting across to parents, in the emotion-laden moments leading up to a bris, a hostile message about a sacred ritual about to be performed on their baby.
The consent form in effect serves as a permit, Dvoretzky said. With bris milah under attack in Europe and Scandinavia, world attention is focused on the New York case. If mohalim in New York City cannot carry out their religious duties without a “permit,” what kind of message is this sending?
The coinciding of the oral hearing with Chanukah and rosh chodesh bore a poignant symbolism for many Jews. It conjured up images of the centuries-ago Jewish struggle with the Greeks for the freedom to uphold the Torah, with bris milah and rosh chodesh among the commandments the ruling Greeks had explicitly banned. For many Jewish observers in the courtroom, the proceedings were tinged with the echoes of that distant period.
The appeals court will decide whether the consent regulation must be tested against the high standards of strict scrutiny. It may also rule on whether to grant a temporary injunction against the regulation until the final outcome of the bris milah lawsuit.
The hearing fueled hopes throughout the Jewish community that the judges would render a decision favorable to a community that deeply cherishes the freedoms and civil rights guaranteed by the Constitution.