Some of the City’s demands, such as those seeking information protected by attorney-client privilege, are clearly out of bounds, legal experts observe.
Among other requests, the City is seeking records of all meetings, written notes and communications the plaintiffs have had with one another on the subject of the “consent” law.
They are also demanding records of all communications the plaintiffs have had with specific medical experts and consultants on the subject of the controversial anti-metzitzah b’peh regulation.
The City has even targeted communications the plaintiffs have had with the press, specifically this writer.
The intimidation tactics have taken aim at the individual mohalim in the lawsuit, as well. The City is demanding their income tax returns, as well as all documentation of all monies received by them in the performance of their profession.
The deadline for this voluminous amount of material to be produced is November of this year, considered highly unrealistic by those with knowledge of the case. All submitted responses will be considered “sworn testimony.”
APPEAL BRIEF STRIPS KOSHER FAÃ‡ADE FROM CONSENT LAW
Apart from the Discovery process in the litigation, a second process has been unfolding in the court of appeals, with the submission of appeal briefs by the plaintiffs and responses by the City. A hearing is expected sometime in the fall, with a decision by the Second Circuit due at the year’s end or January of next year.
To recap, major Jewish organizations have sued the City over its “consent” law, a regulation that requires that before a mohel can perform metzitzah b’peh on an infant, the parents must acknowledge in writing that the practice carries serious health risks – a position rejected by vast numbers of Orthodox Jews and disputed by medical experts.
The parents must affirm that the DOH advises them not to perform the mbp, but they choose to do so regardless.
A district court in January had denied the plaintiffs’ motion for a preliminary injunction against the consent law. That decision, by Judge Naomi Reice Buchwald, is now being appealed to the Second Circuit Court of Appeals.
The appeal, argued by Jones Day attorneys Shay Dvoretzky and Yaakov Roth, assisted by attorney Yerachmiel Simins, argues, first, that the Department of Health has unconstitutionally targeted a religious practice, without credible evidence to support its allegations that mbp is in any way dangerous to babies.
With only the shabbiest of research to back up its charges, the government’s intrusion on religious observance is unjustified and unlawful, the appeal argues.
The appeal brief highlighted the consent law’s discriminatory nature, noting that over the 5-year period from which the City drew statistics on neonatal herpes, they identified 84 cases, only 5 of which they even suggest are possibly connected to mbp.” [The other cases resulted from childbirth complications – by far the most frequent source of neonatal herpes – and other sources of infection.]
The fact that the City has not tried in any way to address the other 79 cases, in terms of trying to diminish the risk factors and prevent illness, but has focused only on the 5 they believe to be associated with mbp, proves that this regulation specifically and unlawfully targets religion, the brief stressed.
REFUSING TO USE THE GOLD STANDARD
Moreover, the City’s persistent refusal to undertake conclusive DNA testing, the gold standard for identifying the source of a herpes virus, fatally undermines its claims, the brief argues. It thus places these claims in the category of what can only be called pseudo-science or glorified guesswork.
The appeal brief attacked the regulation from a second angle: that it violates the constitutional rights to freedom of speech by compelling mohalim to serve as the government’s mouthpiece in communicating information they reject as lies. It forces them 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 they find abhorrent that essentially accuses MBP of killing babies.
IS THE CONSENT FORM SIMPLY STANDARD PROCEDURE?
The City countered the appeal brief in early July with arguments it recycled from the initial hearing before Judge Buchwald. Its defense of the regulation basically consists of pretending it is something it is not – a standard consent form – and minimizing its true intent.
A consent form signed before a medical procedure describes the procedure, provides a statement of consent and is then signed by the patient. No warnings about possible dangers are included, as they are in the consent form for metzitzah b’peh.
The purpose of medical consent forms is to facilitate the procedure, while shielding the hospital from liability in case things go wrong. In the case of consent for MBP, however, the true intent is exactly the opposite: to prevent the procedure from taking place.
The plaintiffs filed their response brief last week, stripping the “kosher” faÃ§ade from the City’s consent law, and demonstrating how it violates religious freedom without even attempting to prove it has legitimate grounds to do so — known as subjecting the law to “strict scrutiny.”
“The District Court subjected the regulation to no real scrutiny at all,” the brief argued.
“Yet the Health Department asks this Court to [agree] that the rule satisfies even strict scrutiny, even though the Department (i) refuses to say whether it has received a single complaint about MBP since it convinced local hospitals to distribute anti-MBP brochures; (ii) refuses to address any of the scientific flaws in the only study purporting to find a correlation between MBP and neonatal herpes; (iii) ignores the unrefuted evidence that antiseptic rinsing eliminates the herpes virus in saliva; and (iv) ignores the law prohibiting [forced speech] in any context.” –Page 8, Plaintiff Reply Brief
AMICUS BRIEFS SUPPORT LAWSUIT
The consent law has raised alarm not only in the Orthodox Jewish community, but in non-Jewish groups who view it as unprecedented government encroachment upon religious freedom.
Testifying to the gravity attached to the issue by these groups, two powerful amicus briefs have been filed with the Second Circuit Court of Appeals, supporting the plaintiffs in their lawsuit against the City.
The briefs, filed respectively by the Alliance Defending Freedom, and the Becket Fund For Religious Liberty, assert that a district court grievously erred in refusing to issue a preliminary injunction against the “consent law.”
The Becket Fund sharply condemns the “climate of hostility” toward Orthodox Jewish practice, and demands the consent regulation be examined for its possible anti-religious intent.
BRIEF WARNS OF GROWING ANTI-ORTHODOX HOSTILITY
The Becket Fund attacked the district court’s ruling as discriminatory toward Orthodox Jews. It charged Judge Buchwald’s decision with playing into the culture of hostility toward Orthodox Jewish practice prevalent in New York municipalities.
Attacking MBP is part of a broader agenda of religious discrimination against Orthodox Jews in New York City, the brief asserted.
The document outlined various zoning and eiruv battles that have been fought in court in recent years. It quotes media reports that have carried anti-Semitic comments from hostile participants at town meetings that were held in connection with requests for permission to build a synagogue.
The brief said the Second Circuit must view the consent regulation in this negative climate; as an illegal discriminatory weapon to curtail Orthodox Jewish practice, and discourage the spread of Orthodoxy.
Due to the religious intolerance fueling these outbreaks of opposition, the Court must apply the strictest standards of scrutiny in evaluating the consent law in terms of its author’s true intent, the brief argued.
“Close judicial scrutiny is particularly necessary here because the City’s targeted regulation comes in the context of a wide variety of government-sanctioned efforts in the New York metropolitan area to inhibit the practice of Orthodox Judaism,” the brief stressed.
“Especially against such a backdrop of religious discrimination, laws that target religious minorities must be tested to ensure [they truly serve] a compelling government interest.”
With the increase in the Orthodox Jewish population in the New York City metropolitan area, the Becket brief asserted, Orthodox Jews increasingly face laws and regulations that inhibit their religious practices.
The brief noted that “courts have found that many of these regulations were deliberately designed to discourage the spread” of Orthodox Jewish communities beyond their traditional neighborhoods.
“That pattern of anti-Orthodox hostility is the telltale smoke alerting courts to strictly scrutinize the City’s regulation of a religious ritual for anti-religious “fire,” the brief said.
It went on to explain that because Orthodox Judaism resists alien social norms or external regulation, “many people – including some government officials – [tend] to treat Orthodox Jews as hostile outsiders to American society.”
“But what may to some eyes seem a stubborn adherence to inscrutable rules is in reality a deep commitment to following what Orthodox Jews believe to be Divine command. They have persevered in that commitment despite some of the worst religious persecution in human history,” the brief stated.
The brief cited a pattern of targeted regulations against Orthodox Jews, saying “they are becoming depressingly regular features within the City and surrounding municipalities.”
It cited previous rulings by the Second Circuit Court of Appeals that “several municipalities in New York were incorporated out of sheer “animosity toward Orthodox Jews as a group.”
That animosity appears to have worsened as the Orthodox Jewish population has grown dramatically in the City and surrounding areas, as a New York Times article, Jewish Population Is Up in the New York Region, recently asserted.
CITY ABUSES LAND REGULATIONS
The Becket brief argues that one of the most common manifestations of hostility towards Orthodox Jews is abuse of land use regulations.
“It is a well-known fact that Orthodox Jews may not drive on the Sabbath and that they therefore must reside within walking distance of a synagogue. Thus if a community wishes to prevent Orthodox Jews from moving into the neighborhood, it will manipulate land use regulations to forbid the synagogue from being opened in the neighborhood.”
A number of cases with this pattern of neighbor-driven attacks on new Orthodox Jewish land use have arisen in the New York City metropolitan area, the brief noted.
It cited a 2009 case in which a town mayor illegally prevented issuance of certificate of occupancy for an Orthodox synagogue on the basis that it was a “community center” rather than a house of worship and thus subject to additional zoning requirements.
In an example of particularly vehement hostility towards Orthodox Jews, the brief cited a case that is still pending, Congregation Rabbinical College of Tartikov v. Village of Pomona. In that case, Orthodox Jewish plaintiffs have submitted abundant evidence showing that the city enacted anti-Orthodox Jewish zoning laws because residents found Orthodox Jewish communities undesirable.
A New York Times article reporting on the case quoted a citizen who said that hearing about Orthodox Jewish communities “literally” made her “nauseous” and want to “throw up.”
“Citizens opposing Orthodox Jewish communities” the brief notes, “ have referred to them in newspapers as ‘tribal ghettos’ and to Orthodox Jews as “blood sucking self-centered leeches” who create Jonestown-like cults where they drink “spiked kool aid . . . kosher of course.”
Many close to the Bris Milah lawsuit believe that it is being fueled by New York City officials appeal to harbor a particular animus against the Orthodox Jewish community. It is hoped that as some of these officials conclude their term in office and others take their place, a new spirit of tolerance and respect for diversity will replace what has the look and feel of overt racism.