Thursday, Oct 28, 2021

Landmark Amicus Brief Argues For Orthodox Rights

Have hundreds of Jewish babies been dying in the New York area in recent years as a result of metzitzah b'peh, as some are claiming? Are hospitals engaged in a massive cover-up of this calamity so as not to lose their Orthodox and Chassidic clientele? Amid fantastic allegations launched in recent weeks by opponents of MBP, two powerful amicus briefs have been filed with the Second Circuit Court of Appeals, supporting the MBP appeal (filed last week) in the ongoing lawsuit against the City of New York.
The friend-of-the-court briefs, filed respectively by the Georgia and Arizona-based Alliance Defending Freedom, and the Washington, D.C-based Becket Fund For Religious Liberty, collapse some of the most outlandish misconceptions and outright libels surrounding MBP.
 
Both documents say a district court grievously erred in refusing to issue a preliminary injunction against the “consent law,” as requested by a coalition of Orthodox Jewish groups and individual mohalim. One of the briefs 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 brief 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.

 

‘LOOK BEHIND THE SMOKE’

 

“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 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.

 

“Given both that history and the balance struck by the First Amendment, using government power to force Orthodox Jews to contravene their beliefs should be a last step.”

 

The brief went on to cite 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.

 

REQUESTS FOR MODEST ATTIRE TARGETED AS “DISCRIMINATORY”

 

Recent examples of this hostility are lawsuits recently filed by the City’s Commission on Human Rights against seven Orthodox Jewish businesses in Brooklyn. The lawsuits claim “gender discrimination” because these businesses post dress code signs. The signs read, “No shorts, no bare feet, no sleeveless, no low cut neckline allowed in this store.”

 

The lawsuits allege that the Orthodox Jewish storeowners discriminate against women. “But not only do the signs apply equally to men and women, the City’s Commission on Human Rights turns a blind eye to upscale clubs and private schools that actually do mandate specific dress requirements for men and women.

 

So, under the City’s selective approach, “dress codes are illegal only if they are motivated by Orthodox Jewish beliefs,” the brief observes.

 

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 virulent 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, which is still pending, Orthodox Jewish plaintiffs have submitted copious 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.”

 

The authors of the brief said that while it’s impossible to “see into the hearts of men” and to know for sure what motive was driving those who advocated the consent regulation, the Court needs to be aware “of the context in which regulations of this sort arise.”

 

BRIEF DEMOLISHES MISCONCEPTIONS AND LIBELS

 

The second of the amicus briefs, the Alliance Defending Freedom, shredded the City’s argument that the consent law in no way encroaches on the mohel’s freedom of speech and religion.

 

It also demolished wide misconceptions surrounding neonatal herpes. It set the record straight about its rate of occurrence and the lack of scientific basis behind the City’s assertions that it is caused primarily by MBP.

 

“15 Jewish babies a year die from this practice of MBP,” one widely quoted detractor has said. “There are five major hospitals in NYC, and each one has the same report. All the hospitals, they’re afraid to say anything out loud or the [Orthodox Jewish] clients won’t come to them.”

 

15 Jewish babies a year die from MBP? This stunning, outlandish fiction – which not even the most rabid opponent of MBP in the medical establishment has asserted – has stirred confusion in some quarters.

 

A massive cover up and a secret network of conspirators from the Orthodox Jewish community and …. who? Hospital authorities? The DOH? The same medical authorities who have been hollering that MBP causes herpes are colluding with Orthodox Jews to cover it up? The same officials who harass Jewish parents of a sick baby for the name of their mohel and whether he performed MBP are colluding to perpetuate the practice?

 

Even the most breathtaking fabrications often rest on a tiny grain of truth. So let’s more closely examine the allegation of 15 Jewish babies dying each year from MBP. To get a reality check, let’s turn to the City’s own statistics, quoted in the October 2012 hearing in New York’s district court. Here, in the official record, one does note the mention of “15 babies a year.” But look again at the context:

 

“Out of approximately 125,000 live births in New York City each year,” the record states, “about 15 newborn infants contract neonatal herpes.”

 

In other words, 15 newborn infants from the entire New York population. Not specifically from the Jewish community.

 

What’s immediately clear is that the author of the “15 Jewish babies a year” comment has committed a breathtaking distortion of facts on record.

 

Let’s check further to see if these 15 neonatal cases of herpes from New York’s multi-ethnic population are linked in any way to MBP.

 

The records state that of this miniscule group of 15 babies per 125,000, “the vast majority, approximately 85%, are exposed to the herpes simplex virus in the birth canal. Another 5% percent of infected infants acquire the herpes simplex virus in the womb.”

 

In other words, 90 % of neonatal herpes cases (14 out of the 15) developat or before the time of delivery. Not all of these result in death.

 

That leaves one herpes case out of 125,000 annual New York City births that comes from a source that has yet to be identified.

 

Rumor mongers and sadly misinformed individuals propagating their sordid tales should be ashamed. Truth-twisting and outright libeling has gone far enough. It’s time for the facts to dispel delusions and personal agendas.

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