Appeals Court Hears Arguments in Milah Case

Among those present in the courtroom were leaders of Agudath Israel of America, the Satmar-affiliated Central Rabbinical Congress, and the Chabad-affiliated International Bris Association. They, along with three mohalim, filed a lawsuit against a regulation requiring mohalim to ask parents to sign a consent form espousing the NYC Department of Health’s view associating metzitzah b’peh (MBP) with serious health risks. Leading medical experts and veteran mohalim dismiss the city’s claim.

Lead attorney Shay Dvoretzky of the Washington-based Jones Day law firm, argued on behalf of the Jewish organizations and the three mohalim. Mordecai Newman, Assistant Corporation Counsel at NYC Law Department, argued on behalf of the NYC Health Department.

In the audience were present a number of members of Orthodox community. Speaking in hushed tones as they waited for the judges to enter the courtroom, they spoke among themselves of the fact that it was the sixth day of Chanukah, which celebrates the victory of the Chashmona’im against the Yevanim — the ancient Greeks. It was also Rosh Chodesh Teves. Two of the primary edicts of the Yevanim were to ban bris milah and Rosh Chodesh.

Two of the three judges who heard the case, Judge Raymond J. Lohier, Jr., and Judge Susan L. Carney, were appointed by President Obama. The third, Judge Debra Ann Livingston was appointed by President George W. Bush.

In his remarks, Dvoretzky told the judges that the consent regulation violated the constitutional rights of the plaintiffs on two separate grounds:

1) It violates the rights of free speech, which includes the right not to speak, in that it forces mohalim to disseminate a message which they consider to be false.

2) It violates a mohel’s right to freely practice his religious beliefs — known as the “free exercise clause,” of the First Amendment, he said, as it forces a mohel to denigrate a religous practice he is about to perform.

Responding to the statement of the lower court judge that under a hypothetical scenario a parent could show up on the day of the bris with a consent form in hand, and therefore spare the mohel from having to say anything at all, Dvoretzky stressed that, under the regulation, the mohel is the one required to ensure that the form has been signed before performing MBP.

“The obligation is on the mohel,” Dvoretzky said. “he is the one who would be punished [if MBP is performed without a consent form.]”

He also pointed out that it is clear from the city’s own statements on the bill that the intent is for the parents “to hear from the mohel,” regarding the consent form.

Furthermore, from a practical perspective, the three plaintiffs in the case who are veteran mohalim  report that they have performed approximately 90 brisos since the regulation went into effect, and not a single parent showed up on the day of the bris with  a form, the attorney related.

“The regulation forces a mohel to choose between breaking the law and going against his religion,” Dvoretzky said.

Even if he doesn’t have to explicitly describe what the form is about, Dvoretzky asserts, the very act of instructing the parents to obtain the form forces the mohel to act as a conduit for a message he believes to be untrue. This suffices to be called a violation of a mohel’s first amendment rights.

In arguments on behalf of the city, Mordecai Newman claimed that the regulation didn’t violate the religious rights of the mohel because it gave the parents the “religious choice,” whether or not to have MBP performed. Furthermore, he argued that since the regulation doesn’t force a mohel to do a bris without MBP (as he can always refuse to perform the bris) it doesn’t violate the mohel’s religious rights. And when a parent does sign the form, “this provision doesn’t prevent MBP,” Newman said.

The court questioned this assertion.

“I am struggling to understand why this isn’t a free exercise case,” Judge Livingstone asked Newman at one point.

When Newman argued that the potential health risks were such a compelling interest that the consent form was called for, Judge Lohier spoke up.

“You are saying that the compelling interest is so compelling that it washes away all else?” the Judge asked.

Also present in the courtroom were attorneys Erich Rassbach and Daniel Blomberg, legal counsel for the Becket Fund for Religious Liberty, which filed a friend of the court brief on behalf of the Jewish groups.

“The judges today were very focused on the point we raised in our amicus brief: when government restricts an ancient religious practice, courts should apply the highest level of judicial scrutiny, not the lowest,” Rassbach later emailed Hamodia. “The Court was taking very seriously the city’s cavalier restrictions on bris milah,” he added.

When asked for comment, Yerachmiel Simins, an attorney for the plaintiffs said, “Baruch Hashem, we are grateful to have had the opportunity to argue our case before the Second Circuit, and proud and appreciative of the terrific job Shay did.

“We look forward to the Court’s decision and are hopeful that iy”H it will be favorable,” Simins said.

This article appeared in print on page 1 of the December 4th, 2013 edition of Hamodia.