On August 15, 2014, the United States Court of Appeals for the Second Circuit in Central Rabbinical Congress of the United States & Canada v. New York City Department of Health & Mental Hygiene issued a very important religious freedom decision. The New York City Department of Health and Mental Hygiene had issued regulations requiring that parents consent in writing to metzitzah b’peh (MBP) as part of the Jewish circumcision (bris) ritual due to the risks of spreading herpes simplex virus (HSV) during the bris.
These regulations were affirmed by the United States District Court last year as rationally connected to the governmental interest in protecting children from contracting HSV and, thus, constitutional, even though these regulations inhibited some religious Jews from practicing bris in the way they believed Jewish Law mandated.
The Second Circuit ruled that the District Court used the wrong legal standard to evaluate these circumcision regulations. It therefore reversed the District Court’s decision and returned the case to the lower court for further determination. The Circuit Court noted that because the basic purpose of these regulations was to inhibit a religious practice, their constitutionality must be reviewed under the “strict scrutiny” standard and not the “rational basis” standard. The court stated:
Three organizations supporting the practice of MBP as part of bris milah and three mohelim who perform MBP (collectively, “plaintiffs”) filed suit, challenging the Regulation…as burdening their free exercise of religion in violation of the same. The district court denied the plaintiffs’ motion for a preliminary injunction, holding,….that it is a neutral and generally applicable law pursuant to Employment Division v. Smith, , and Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, so is subject only to rational basis review.
….[W]e disagree. The Regulation is neither neutral nor, on this record, generally applicable and therefore must satisfy strict scrutiny. The Regulation is not neutral because it purposefully and exclusively targets a religious practice for special burdens. And at least at this preliminary stage, the Regulation is not generally applicable either, because it is under-inclusive in relation to its asserted secular goals: The Regulation 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. [Citations and footnotes omitted, emphasis added]
This issue – what is the standard of review of general laws that are directed functionally at only a small religious group and its practices – is a very important one for many religious groups, Orthodox Jews included. The higher the standard of review, the less likely it is the law will be constitutional.
The First Amendment to the Constitution mandates simply that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” and protects both the right of every person to worship as he or she sees fit and codifies the obligation of the government not to privilege one faith over another.
But in the 1990s the Supreme Court issued two very important decisions regarding the right of people to worship freely. In Employment Division v. Smith, the court ruled that the government need not exempt people from the general criminal law merely because they were acting based on their religious beliefs. So even if one’s religion mandated ingesting peyote as a ritual, it was still a crime and cannot be done so long as the law is rational.
About three years later, in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, the Supreme Court limited this rule to cases where the government is not targeting a religious practice but only regulating a general practice. However, if a city passed a regulation limiting animal sacrifice, it would generally be unconstitutional, unless it survived the strict scrutiny test, because the law’s intent is to prohibit a religious practice.
Few laws survive a strict scrutiny analysis because to do so the government must show there is a compelling governmental interest, such as national security or saving many lives. The government must also craft the law as narrowly as possible, and it may not be overbroad. And the law must use the least restrictive means available to accomplish this task.
On the other hand, to survive a rational basis test, all the government must show is any rationally related justification for the law so long as it is not arbitrary. As Wikipedia notes simply, “A court applying rational basis review will virtually always uphold a challenged law unless every proffered justification for it is a grossly illogical non sequitur.”
In short, almost all laws survive a rational basis review and only a few survive a strict scrutiny.
How should the courts address apparently neutral regulations that really in fact focus on only the conduct of one religious community? They are neutral if read in a vacuum, yet practically focused on a specific religion: Does the rational basis test of Smith apply or the strict scrutiny of Lukumi Babalu? How should the courts look at these MBP regulations?
The Second Circuit makes the following legal claim: Infant HSV can be spread in many different ways, with MBP being just one of them; even the Orthodox Jewish plaintiffs conceded that HSV could be contracted through MBP while even the government acknowledged that most cases of infant HSV are contracted in other ways. Thus, the government was in fact focusing on this unique religious activity to the exclusion of all the other ways to contract HSV and functionally regulating religious activity, albeit in a way that appears neutral at first blush. Therefore, because this regulation actually focuses on religious conduct, the standard of review is strict scrutiny.
What this means practically is that a facially neutral law that in fact intends to focus on a religious practice requires a strict scrutiny analysis as a matter of constitutional law.
The Second Circuit returned the matter to the District Court to determine whether the regulation met the higher standard. It went out of its way to not judge the merits of that issue (as courts sometimes do), implying that a full and fair hearing might enable this regulation to survive strict scrutiny. Whether these regulations actually survive strict scrutiny, I suspect, depends on the factual record developed as to the actual risks of MPB as compared to other methods of getting HSV and whether a consent form is a restriction.
Whatever happens in District Court, this case is important because it sets a high bar of strict scrutiny for governmental regulation whose intent, purpose, and impact is to regulate religious conduct and ritual. For example, governmental regulation of all circumcision would be reviewed only for rational basis, but any law focusing on home or religious circumcision would be subject to strict scrutiny.
Having said all this there is little doubt in my mind that halachic authorities who favor the use of MPB would be well served by ensuring procedures are in place to guarantee, as much as is medically possible, that mohalim who perform MPB do not transmit HSV to the children while doing a bris.Putting aside the legal issues, our community needs to work tirelessly to ensure that the bris ritual is as safe as possible. We must recognize the current system is not working as well as it could when any children are exposed to unnecessary risk of contracting HSV or any other preventable illness through a bris.