Two prestigious religious rights organizations filed Friend of the Court (Amicus Curiae) briefs on Monday in the federal second Court of Appeals in an appeal of a lower court’s decision denying an injunction against New York City’s unprecedented regulation of bris milah.
The respective briefs were filed by the Alliance Defending Freedom and the Becket Fund for Religious Liberty, in support of Agudath Israel of America, the Satmar-affiliated Central Rabbinical Congress, the Chabad-affiliated International Bris Association and three mohalim in their legal battle against a regulation that requires mohalim to ask parents to sign a consent form that espouses the New York City Department of Health’s view associating metzitzah b’peh (MBP) with serious health risks. Mohalim and leading medical experts reject the city’s claim.
In their brief, the Alliance Defending Freedom argued that the city regulation was unconstitutional because in most cases, it “will force Plaintiffs into a catch-22 situation where they are required to violate their religious beliefs either (1) by failing to hold the bris on the eighth day after birth, or (2) by spreading a message designed to exclude them from the bris and promote disobedience to Jewish law.
The brief submitted by the Becket Fund for Religious Liberty is particularly noteworthy because it is co-signed by Michael W. McConnell, a former Federal Appeal Court Judge who is considered one of the foremost contemporary constitutional law scholars.
Among other legal arguments raised, it urged the court to take note of the historical context of the case.
“Orthodox Judaism follows an internal rule of decision that does not yield easily to contrary social norms or external regulation, leading many people — including some government officials — to treat Orthodox Jews as hostile outsiders to American society,”the brief states. “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. 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 after the proper level of judicial review has been applied.
The brief also cited widespread “governmental hostility” towards Orthodox Jews, saying that the “broader historical and societal context shows a pattern of targeted regulations against Orthodox Jews. Indeed, targeted government measures against Orthodox Jews are becoming depressingly regular features within the City and surrounding municipalities.…
“With the increase in the Orthodox Jewish population in the New York City metropolitan area, Orthodox Jews increasingly face laws and municipal regulations that inhibit their religious practices — many of which courts have found deliberately designed to discourage the spread of Orthodox Jewish communities to integrated areas outside 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 argued.
Yosef Chaim Salazar, an attorney who practices in Baltimore and New York, and is not affiliated with the case, told Hamodia Tuesday that he read the Becket Fund brief and found it to be very impressive.
“The brief makes a very persuasive claim that the court should take into account the general governmental hostility against Orthodox Jews while weighing the constitutionality of the regulation. It is a strong argument, and adds an additional dimension to an important First Amendment case,” Mr. Salazar said.