Thursday, Oct 28, 2021

Bris Milah Ruling A Setback For Religious Freedom

In an ominous setback for religious freedom, a federal judge refused last week to block a NYC regulation that places aspects of bris milah under government control for the first time in U.S. history. US District Judge Naomi Reice Buchwald, in a 93-page decision, upheld a city law passed last September prohibiting mohalim from performing metzitzah b'peh (MBP) unless they first obtain a signed parental consent form.
The consent form makes allegations, which the Orthodox Jewish community rejects as outright libel, that MBP is life-threatening to infants. It further states that the Department of Health warns against the practice but the parents nevertheless have consented to it.
 
The health risks attributed to MBP have never been proved and have been sharply disputed by medical experts. A centuries-long record offers overwhelming evidence that this time-honored practice in the hands of trained mohalim is perfectly safe. Yet a relentless government campaign has given the libel considerable traction.

 

Of immediate concern is the fact that a stay of enforcement pending Judge Buchwald’s decision was lifted with her ruling, making the “consent” law effective as of last week.

 

The plaintiffs, who include the Satmar-affiliated Central Rabbinical Congress of the United States and Canada, Agudath Israel of America, the Chabad-affiliated International Bris Association and several individual mohalim, have already filed a notice of appeal and a stay of enforcement pending the appeal.

 

In a phone interview with Yated, Rabbi Gedaliah Weinberger, Chairman of the Board of Agudath Israel of America, said the plaintiffs were “disappointed with the ruling but not deterred.”

 

“The lawsuit presented very strong Constitutional arguments which the judge failed to properly address,” he said. “We feel her decision is deeply flawed. We’re very hopeful those errors will be rectified on appeal.”

 

At a conference Monday in the judge’s chambers between counsel for both sides and Judge Buchwald, the judge said she would issue her decision regarding a stay of enforcement pending the appeal in a matter of days.

 

If she denies the stay, as legal observers predict she will, “we’ll appeal that decision to the Second Circuit Court of Appeals,” Mr. Yerachmiel Simins, one of attorneys for the plaintiffs who is working pro bono, told Yated.

 

LAW IS ANTI-RELIGION; VIOLATES FIRST AMENDMENT

 

The coalition of Orthodox Jewish groups had filed a lawsuit in October against the City, arguing that the regulation, which forces mohalim and Jewish parents to denounce a sacred religious practice, violates the First Amendment in two ways; by infringing on the right to the free exercise of religion and by compelling speech.

 

In court papers, the plaintiffs said the regulation singled out an exclusively religious ritual, and violated the free speech and “free exercise” protections within the First Amendment of the U.S. Constitution.

 

At the December 18 hearing, counsel for the plaintiffs, Mr. Shay Dvoretzky of the Washington-based Jones Day legal firm, argued that the regulation violates freedom of religion by targeting MBP for regulation, when the City has taken no action to regulate other known “risk factors.”

 

Mr. Dvoretzky highlighted the 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 fact that the City has not tried in any way to address the other 79 cases but has focused only on the 5 they believe to be associated with MBP, is further evidence that this regulation specifically targets religion,” the attorney stressed.

 

Dvoretzky cited the fact that the City’s representatives [i.e. Mayor Bloomberg] had announced in public their intention to abolish MBPas proof that the regulation is “anti-religion” in both practice and intent.

 

A JUDGE’S TORTURED LOGIC

 

The plaintiffs also argued that forcing mohalim to communicate a message they find repugnant and utterly reject violates the Constitution.

 

In her decision, Buchwald, whose one-sided questioning at the Dec. 18 hearing sent a clear message about where her sympathies lay, rejected the Constitutional arguments. Mohalim are not being forced to say anything, she countered in her ruling. They merely have to ask parents for the consent form.

 

As for the “free exercise” [of religion] argument, she wrote, it is not the religion that is being targeted by the consent law, but the specific action, metzitzah b’peh, which applies not only Jews but to everyone, regardless of their religious affiliation.

 

Legal observers have noted the hollowness of these arguments. MBP, whose roots go back many centuries in time, has never been practiced by members of any faith other than the Jewish one. To pretend the law is not discriminatory simply because it theoretically applies to everyone is intellectually dishonest and absurd.

 

CAN THE LAW FORCE YOU TO GIVE UP YOUR FREEDOM OF SPEECH?

 

Equally ridiculous is Buchwald’s claim that mohalim are not being forced to communicate anything, merely required to accept a form. What if no form is presented to the mohel by the parents? Or if the form is not signed? According to Buchwald, can the mohel still perform the ceremony?

 

A glance at the Transcript of the Dec. 18 hearing, page 54, shows Buchwald framing precisely this question, and the tortured logic of her response.

 

If a parent arrived with her infant on the day of the bris and did not have a consent form, [the law] would simply require that the mohel not perform MBP until the parent somehow procured a consent form, signed it, and gave it to the mohel. Nothing in the regulation would require the mohel to provide the consent form himself.” [Transcript, p. 54]

 

But what if the mohel feels he is violating his conscience by participating in this government-orchestrated charade which he feels trashes his religion? Here is Buchwalds response:

 

“Indeed, if a mohel fundamentally objected to the Department’s consent form… and it was impossible for the parent to obtain a consent form independently, the mohel would still be free not to say anything. He simply could not perform MBP (italics added.)”

 

In other words, no one is putting a gun to the mohel’s head and forcing him to say anything, the judge argues. After all, the mohel has a choice. He can choose to follow the law and communicate the government’s warnings and advice against MBP. Or he can choose the only legal alternative: not to do MBP.

 

Get it? We are allowing him to freely choose on his own to parrot the government’s nonsense, or else freely choose on his own not to do metzitzah b’peh.

 

With all this freedom of choice, would anyone be brazen enough to claim that the mohel’s freedom of speech is being violated?

 

Consider this hypothetical analogy: The city passes a law that to become a resident of New York City, a person must declare orally or in writing that Mayor Bloomberg is Superman. But isn’t this compelled speech? Not true, Judge Buchwald would say. No one is forcing the person to say anything. He can simply choose not to live in New York City.

 

FAR REACHING IMPLICATIONS

 

Bloomberg’s crusade against MBP, bolstered by public statements from other city officials, suggest the regulation may serve as a means of testing the waters to determine how far opponents of MBP feel they can go.

 

“We have to look at the broader picture; at the far-reaching implications of this case,” Mr. Simins said in an interview with Yated. “Opponents of bris milah are watching this case carefully. Right now there’s a law on the books in New York City that essentially says that an aspect of bris milah kills babies. It doesn’t take a crystal ball to see where this could lead, not only in New York City, not only in the United States, but internationally.

 

“If this law is allowed to stand,” the attorney said, “it can open the floodgates. We can expect to see further encroachments, not only on bris milah, but on the broader issue of religious freedom. So this is about far more than a battle over consent forms.”

 

Simins noted recommendations against priah in the City’s Before the Bris brochure, distributed in hospitals throughout New York City, as well as rumblings about “out-of-hospital” circumcisions in other DOH writings.

 

“At this stage, ideas which conflict with Jewish law are being formulated as recommendations. But as the consent law shows – the distance from recommendation to regulation can be surprisingly short. At some point in the near future, the battle lines may be redrawn in a more dangerous way. We may be fighting for the most basic right to practice bris milah k’halacha. So this is not a tempest in a teapot. It’s very high-stakes.”

 
THE MORAL DILEMMA 
 

In August 2012, a month prior to the “consent” law’s passage by the NY City Board of Health, an impassioned Kol Koreh was issued by the Badatz (Rabbinical Court of Jerusalem), condemning intrusion by NY City officials into Jewish observance.

 

The Kol Koreh, which triggered similar letters from rabbinic authorities in the United States, Israel, Canada, Belgium, Britain and Australia, called on Jewish residents of New York City to remain unflinchingly loyal to halacha and mesorah, in the face of government tampering with bris milah.

 

With restrictions on circumcision already in force in some parts of Germany, Sweden, Norway and Switzerland, and with recent efforts to institute an anti-circumcision ban in San Francisco, the rabbonim understood the global implications of the then-proposed amendment.

 

The Kol Koreh quoted the Sdei Chemed in a treatise on the subject of metzitzah, who in turn quoted a severe injunction in a letter authored by leading 19th century gedolim, the author of Yisa Bracha, Rav Yisrael Salant, and the author of Toras Chesed. Excerpts from the Kol Koreh follow:

 

“No Jew shall have the temerity to practice the act of metzitzah b’peh in a fashion other than the established custom. This includes even the slightest innovation.”

 

“In view of this injunction,” the Badatz Kol Koreh proclaimed, “we call upon all Jewish residents of New York City to rally to the defense of our faith, and to vigorously oppose all attempts to infringe on our religious practices.

 

“It is forbidden to cooperate with the pernicious scheme of New York City health officials targeting bris milah. We insist on the right to practice the mitzvah of milah with all of its specifications as it was performed since antiquity; there can be no room for compromise on the sacred components of this mitzvah.

 

“Neither parents nor mohalim may cooperate with any aspect of the proposed law, either by making a declaration [attesting to so-called dangers of metzitzah b’peh] or signing a document of informed consent.

 

“When milah is under attack in multiple regions of the world, we are bidden to demonstrate even greater loyalty to it. As our holy sages state (Shabbat pp. 130): ‘It was taught in the name of Rabbi Simon ben Eleazar, regarding mitzvos that have historically been banned in times of government tyranny: Any mitzvah such as the prohibition of idolatry and the practice of milah for which Jews have submitted to the death penalty, has lastingly endured.’”

 

The Kol Koreh was issued before the amendment officially became law, when there was still hope it could be defeated. Now that it is on the books, the exhortations of revered rabbonim take on new meaning and urgency.

 

They also highlight the Orthodox Jewish community’s moral and spiritual dilemma, as the battle for the inviolateness of bris milah wends its way through the courts. For a law-abiding community, the choices, as many see it, are excruciating: violate one’s conscience or remain loyal to one’s beliefs at any price?

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