A New Reality

Jewish residents of New York City faced a grim new reality last Thursday evening. What had long been thought to be inconceivable had actually happened. For the first time in history, a government regulation interfering with a fundamental tenet of Judaism had gone into effect.

When a federal judge refused to grant a preliminary injunction against an unprecedented regulation of bris milah, and lifted the stay that was preventing it from going into effect, a wall of protection that had long been considered impregnable was breached.

The ruling is being appealed and a new stay is being sought. We are hopeful that as a result of a combination of earnest tefillah and appropriate hishtadlus, in the end, justice will be served and our rights will be protected. However, even if the community eventually wins this case, it may take weeks, months, and even years until that day arrives. In the meantime, as the case winds as its way through the Federal court system, we must deal with a very alarming new set of circumstances.

There are numerous reasons why world Jewry — including those who live far from the Big Apple — should be very concerned about this regulation. If the city hosting the largest population of Jews in the Diaspora is allowed to restrict bris milah, this may send a message to governmental authorities throughout the world that they can feel free to limit and tamper with the religious liberties of Jews in general, and specifically to interfere with bris milah.

The city has made no secret of its intentions. Their stated goal is that metzitzah b’peh (MBP) — which according to large segments of Klal Yisrael is an integral part of mitzvas milah — should not be performed at all. At the hearings last month on this case, the city attorney admitted that the city could “conceivably consider” a total ban, but “in the meantime” it is seeking to implement an informed consent requirement.

The city has also indicated that MBP is only the first item on their list as they seek to interfere with and restrict other aspects of a bris. They have alluded to the need for a “sterile” environment for a bris, i.e. preventing brisos from taking place in shuls or homes, as well as requiring mohalim to wear gloves, an idea which is unacceptable for halachic reasons.

The once mighty wall of religious rights that has allowed Torah Jewry to thrive on these shores has begun to crumble, and this ought to send shivers up every Jewish spine.

Even without the very grave and legitimate concern about the precedent that is being created, there is ample reason why this regulation must be fought with all resources at our disposal.

For one thing, even if one child is denied a bris performed in accordance with his family’s mesorah because of governmental interference, that in itself would be intolerable.

In addition, as the plaintiffs in this court case have so articulately said in their briefs, prohibiting mohalim from performing MBP unless the parent has signed a consent form violates a mohel’s basic constitutional rights.

Since the form includes statements by the city which directly contravene a mohel’s firmly held religious beliefs that MBP should be performed and that it is perfectly safe, forcing a mohel to give this form to the parents violates both the right of a mohel to freely practice his religious beliefs, as well as his right to free speech, which includes the right to remain silent.

The very notion that Jewish parents should be warned about a rite that has been safely practiced for millennia is deeply offensive and outrageous. On a daily basis, mohalim delay performing a bris on a jaundiced child even if a doctor insists that it is perfectly safe. Mohalim are equally — if not even more — concerned about the health of the infants than the medical establishment.

While the current lawsuit is aimed at protecting the rights of the mohalim, the rights of parents are also very much being impinged upon.

One father told Hamodia s that he would not want to sign a consent form before any future bris.

“Not because I am against MBP,” he was quick to clarify. “I would never use a mohel who doesn’t do MBP, and according to my mesorah this is an essential, non-negotiable part of bris milah. I wouldn’t sign it because it would insinuate that I agree that MBP is dangerous but I am willing to [risk] the danger. Nothing is farther from the truth. I love my children with every fiber of my being. I insist on MBP because I am confident that it is perfectly safe.”

As we grapple with this new reality, the entire Jewish community must acknowledge its responsibilities and obligations. Huge sums of money have to be raised to fund the legal battle, and strenuous efforts must be made in the political arena to defend our rights.

This is about far more than a consent form — this is about protecting our ability to live a Torah life.

This article appeared in print on page D40 of the January 16th, 2013 edition of Hamodia.