Appeals Court Rules in Milah Case


In a decision that delighted many in the Jewish community, a federal appeals court ruled on Friday that a federal judge erred in her legal reasoning when she refused in January 2013 to grant a preliminary injunction against an unprecedented regulation of bris Milah.

A federal appeals court found  on Friday that a NYC Health Department regulation regarding metzitzah b’peh (MBP) is neither neutral nor generally applicable, targets a religious practice for special burdens, and therefore must be held to a higher legal bar, known as “strict scrutiny,” to see whether it violates the free exercise of religion guaranteed by the First Amendment.

In a unanimous decision, a panel of the 2nd U.S. Circuit Court of Appeals overturned a lower court’s ruling in a lawsuit against the city by Agudath Israel of America, the Satmar-affiliated Central Rabbinical Congress, the Chabad-affiliated International Bris Association and three mohalim.

“B’chasdei Hashem, and with thanks to the many people who have worked very hard and supported us on this case, we had a good outcome last Erev Shabbos,” Yerachmiel Simins, an attorney for the plaintiffs, told Hamodia.

“Now it is up to the de Blasio administration to decide whether it wants to continue Bloomberg’s battle over a regulation that Mayor de Blasio himself stated is a wrong course, or whether this decision will be a harbinger of the end of an era of confrontation, as we finally put this ill-conceived regulation behind us and move forward in a cooperative and collaborative manner to further our mutual interests of protecting public health and preserving religious freedoms,” Simins added.

In a statement, the Mayor’s deputy press secretary Maibe Ponet said that “The City believes that the health of newborn infants is paramount. We know the community shares our belief.

“We will continue to work with health care providers and the community to ensure the health of babies and families, while also respecting religious practices. We remain committed to improve the current approach, and are working with the community to revise the current policy,” she said.

A spokesperson for the City’s Law Department, which is representing the city in the legal proceedings said merely that “We are evaluating our options in light of the ruling.”

The legal battle revolves around a regulation requiring mohalim to ask parents to sign a consent form espousing the NYC Department of Health’s view associating MBP with serious health risks, a position dismissed by leading medical experts and veteran mohalim.

The organizations and mohalim challenged the regulation on free speech grounds — arguing that the city is constitutionally prohibited from forcing mohalim to disseminate a message with which they disagree, namely that metzitzah b’peh, which they believe to be a requirement of Jewish law and a safe practice, should not be performed; and as a violation of the right to free exercise of religion.

District Court Judge Naomi Reice Buchwald had denied the plaintiffs’ motion for a preliminary injunction, holding first that the regulation does not compel speech, and second that it is a neutral and generally applicable law. In a decision written by Circuit Judge Debra Ann Livingston, the appeals panel overturned that ruling, saying that the regulation “purposefully singles out religious conduct performed by a subset of Orthodox Jews. And the Regulation applies exclusively to the religious conduct performed by this religious group. Thus, while the interests at stake in this litigation are serious on both sides, requiring the most careful calibration, the method for this calibration cannot be a mere rational basis. Strict scrutiny must be applied…

“The regulation,” Judge Livingston wrote, “pertains to religious conduct associated with a small percentage of HSV infection cases among infants, while leaving secular conduct associated with a larger percentage of such infection unaddressed.”

Since it found sufficient reason to vacate Judge Buchwald’s ruling on religion rights grounds, the appeals court declined to consider the free speech argument.

“Today’s ruling is a great victory — not only for those whose religious rights are directly infringed upon by the Bloomberg Administration’s regulation of metzitzah b’peh, but for all Americans who cherish religious freedom,” the plaintiffs said in a joint statement on Friday.

Though the appeals court vacated the district court’s order denying plaintiffs’ motion for a preliminary injunction, it denied a request for a temporary stay of enforcement and instead remanded the case back to Judge Buchwald to consider whether plaintiffs have shown a likelihood of success on the merits.

The appeals court stressed that its decision only addressed whether “strict scrutiny” should be applied to the case, and not whether the city had actually reached that bar.

“Mindful of the serious interests at stake on both sides, we express no view as to whether the plaintiffs have borne their burden of establishing a likelihood of success on the merits,” the court said.

Legal experts have noted that while “strict scrutiny” — which requires that any regulation or law be justified by a compelling governmental interest and be narrowly tailored to advance that interest — is a difficult bar to reach, it is not impossible.

Yosef Chaim Salazar, an attorney who practices in Baltimore and New York and is not affiliated with the case, told Hamodia that the ruling was “a very positive step for the plaintiffs,” but unless the city agreed to back down, the legal battle was far from over.

“The fact that the court recognized that ‘strict scrutiny’ is indeed the proper standard to be applied in the case is a very important victory for the plaintiffs, but from a legal perspective, this case is still very much in the beginning stages.”

Saying that they are “deeply gratified by today’s ruling,” the plaintiffs expressed the hope that “the regulation will either be withdrawn at this time, or declared unconstitutional in any further court proceedings.”

“We will continue to do all in our power to ensure that mohalim adhere to the highest standards of safety and hygiene in carrying out their religious mission, and we reiterate our longstanding readiness to work with health officials to protect our children’s health while fully respecting and accommodating our religious practice,” the statement continued.

State Senator Simcha Felder, who, as a city councilman, played a key role defending MBP eight years ago, issued a statement praising the ruling.

“Friday’s court ruling is a decisive victory against the city’s unrelenting efforts to ban metzizah b’peh. These unconscionable actions have infringed upon the basic religious freedoms granted to every citizen by the U.S. Constitution,” Felder said.

“With Hashem’s help, the passionate advocacy of a devoted group of individuals and organizations… will lead to the city rescinding its onerous regulations immediately. We will all continue to work together to protect the health of every New Yorker.”