Nevertheless, the NYC Department of Health backed by Mayor Bloomberg succeeded this fall in passing a regulation tightly restricting MBP, and forcing mohalim into the role of â€œfoot soldiersâ€ in the Cityâ€™s battle to uproot the practice.
The firestorm of protest this intrusion into religious practice ignited in the Orthodox community led to a lawsuit against the City by a coalition of Jewish groups. The lawsuit asks for a temporary injunction on the regulationâ€™s enforcement, with the ultimate goal of having the law thrown out as unconstitutional.
A pivotal hearing on the case took place on December 18. On the plaintiffs side is a coalition comprised of the Satmar-affiliated Central Rabbinical Congress of the USA and Canada, Agudath Israel of America, the Chabad-affiliated International Bris Association and three individual mohalim. The lawsuit denounces the anti-MPB law as a violation of freedom of religion and freedom of speech.
In addition to tightly restricting a religious practice, the law contravenes First Amendment rights by forcing mohalim to utter statements about MBP they hold to be false, and that unfairly incriminate both themselves and the Jewish religion.
The contested law requires that mohalim warn parents that MPB carries a deadly risk to the infant about to undergo circumcisionâ€”a notion rejected by mohalim and medical experts. If the parents of the baby still want the ritual performed, they must sign an official consent form that may later be used against them.
JUDGE STEERED DISCUSSION AWAY FROM FLAWED CDC REPORT
Buchwald stressed at the outset that while she would be asking a series of questions during the oral arguments, her questions should not be interpreted as favoring one side or the other, but rather as an effort to clarify the issues.
Yet, as she steered the thrust of the debate away from the plaintiffsâ€™ argument that the CDC report on which the city based its regulation was fundamentally flawed, observers were struck by her dismissal of the much-debated report.
Without any evidence of a compelling interest in encroaching on religious freedom, the City has no grounds whatsoever to justify the consent law which, ironically, bases itself on the very CDC report in question.
Treating the report as inconsequential, Buchwald focused most of the hearing on the constitutional aspects of the case. She seemed to be aiming to help the City find a legal framework for intruding on the constitutional freedoms at the heart of the case.
She began the actual business of the 90-minute hearing by firing a series of questions primarily at the plaintiffâ€™s attorneys.
â€œHer sharpest inquiries were directed at Mr. Dvoretzky [of the Washington-based Jones Day law firm,] the lawyer for the Orthodox groups,â€ a New York Times article reported.
VIOLATING RIGHT TO FREEDOM OF SPEECH
Under her pointed questioning, Dvoretzky cogently presented his case that the City is constitutionally prohibited from forcing mohalim to communicate a message that violates their conscience, namely, that an act which they believe to be a requirement of Jewish law should not be performed.
He argued as well that it is also constitutionally prohibited to single out MBP for special burdens and regulation.
At one point the judge asked if the plaintiffs are claiming that the Cityâ€™s regulation was prompted by anti-Semitism.
â€œNo, your honor,â€ Dvoretzky replied, adding that â€œthe law doesnâ€™t requireâ€ a finding of anti-Semitic intent in order to successfully challenge the regulation over its violation of religious rights.
INVENTING A â€˜COMPELLING STATE INTERESTâ€™
Appearing to lay the groundwork for the Cityâ€™s case, Buchwald asked if the plaintiffs would agree that the herpes simplex virus (HSV) is life-threatening to infants. And would they not agree that there existed at the very least a â€œtheoretic possibility,â€ if not an outright â€œplausibility,â€ that oral suction over an open wound could transmit infection?
Her intent seemed clear. If plaintiffs would agree to the above premises, it is but a short step away from agreeing that the state has â€œa compelling state interestâ€ in halting a practice that everyone agrees can theoretically cause grave illness and even death in babies.
Yet admitting to a â€œtheoretic possibilityâ€ is meaningless. It is a far cry from the hard evidence needed to support government intrusion in an activity of heightened constitutional protection, argued Dvoretzky in a brilliant presentation.
Referring to the fact that the City has steadfastly refused to use DNA fingerprinting, considered the â€œgold standardâ€ in establishing scientific evidence, Dvoretzky declared that there is not a single case in which MBP has been proven to have caused an HSV infection.
And even if theoretic possibility were sufficient to justify government intrusion, the constitution demands that such intrusion be as non-intrusive as possible, while still achieving the desired effect.
Dvoretzky drove home the message that the City cannot meet its burden of proving that it has no other way to inform parents about what it believes to be the risks of metzitzah bâ€™peh.
Instead of attacking MBP via forced speech, a clear trampling of First Amendment rights, the government could employ far less restrictive means of persuading the public about the rituals â€œdangers,â€ he argued.
Only a few months ago, Dvoretzky told the court, the City secured the agreement of local hospitals to distribute to new parents a City-published brochure that provides the very same information as the regulation would demand that mohalim convey to parents.
â€œThe City hasnâ€™t even given this effort a chance,â€ he said, as he urged the court to block regulation of a religious practice which has â€œbeen practiced safely for millennia.â€
HITTING OUT AT BRIS MILAH
At one point, Judge Buchwald raised a hypothetical situation in which a religious group observes a ritual calling for â€œamputating left pinkie fingersâ€ at birth. Would the City have the authority to regulate this activity, she asked Dvoretzky.
The attorney said a tradition so vital to Judaism that has been safely practiced for centuries could hardly be compared to a newly established amputation ritual, but the principle was the same: it would depend upon whether the practice caused immediate, serious harm.
What was disturbing about this exchange is that it appeared to open a window on the judgeâ€™s thought processes that suggests the present lawsuit is only a skirmish leading up to a more important future battle. An amputation procedure is obviously not analogous to metzitzah bâ€™peh. What possible parallel exists between the two acts?
It seems likely that in choosing the analogy of an amputation, Judge Buchwald wasâ€”consciously or unconsciouslyâ€”taking aim at bris milah itself.
In another bizarre exchange between Judge Buchwald and Mr. Dvoretzky, the judge objected to the attorneyâ€™s argument that the â€œparental consentâ€ law forces mohalim to utter statements against their will, thus violating their freedom of speech.
â€œBut there is no requirement to speak at all,â€ challenged the judge. â€œThe mohel merely has to obtain the parentsâ€™ consent by giving them the consent form.â€
â€œActually, your honor, I think the law specifically requires the mohel to warn the parents,â€ the attorney countered. He quickly located for the judge the precise language of the regulation, which in fact included the mohelâ€™s obligation to warn the babyâ€™s parents against having MBP performed.
â€œI overlooked that clause,â€ Buchwald admitted.
The entire question of whether the Cityâ€™s regulation violates First Amendment rights hinges on its wording and intent. The regulation lies at the very heart of the lawsuit. Is it plausible the â€œconsentâ€ lawâ€™s key requirement – the mohalim serve as the Cityâ€™s â€˜education forceâ€ by issuing warnings â€“simply escaped the judgeâ€™s attention? And if it did, what does that say about the mindset of the individual entrusted with evaluating the merits of the lawsuit?
The hearing was enlightening in other ways. For those who have scoffed at fears that the consent law is merely a stepping stone to a much more radical move to ban MBP, the lead attorney for the City as much as admitted to this motive.
In response to an outright question about such a total ban, City attorney Michelle Goldberg-Cahn acknowledged that the City â€œcould conceivably consider doing that.â€
For now, she said, it is limiting itself to a signed consent form. [What further designs the City might have on MBP and other aspects of bris milah is not yet for publication.]
PLAINTIFF SUPPORTERS WELL REPRESENTED
â€œWe believe that todayâ€™s hearing highlighted the importance and necessity of protecting the fundamental rights violated by the Cityâ€™s regulations,â€ said Mr. Yerachmiel Simins, an attorney speaking on behalf of the plaintiffs after the Dec. 18 hearing. Simins is assisting Jones Day attorneys Shay Dvoretzky and Yaakov Roth pro bono.
â€œWe appreciate that the stay of enforcement was continued, and we look forward to seeing the religious and free speech rights vindicated,â€ the statement said.
The courtroom was filled with observers. Among those present were Rabbi David Niederman, representing the Central Rabbinical Congress of the USA and Canada; Rabbi Chaim Dovid Zwiebel, Executive Vice President of Agudath Israel and Rabbi Gedaliah Weinberger, Chairman of the Board of Agudath Israel; and Rabbi Levi Heber who represented the International Bris Association (Chabad).
Also present at the hearing were the three expert witnesses who submitted affidavits on behalf in support of the lawsuit. Dr. Daniel Berman, chief of infectious diseases at the New York Westchester Square Hospital Medical Center, who has been a courageous voice advocating for the safety of MBP; Dr. Awi Federgruen, a noted expert in the field of statistics; and Dr. Brenda Breuer, director of epidemiologic research at Beth Israel Medical Center in New York.
Scores of other concerned parties came to observe the proceedings, prompting the judge to note the highly charged emotions surrounding the bris milah lawsuit and its potentially explosive outcome.