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Central Rabbinical Congress of United States v. New York City Dep't of Health & Mental Hygiene

United States Court of Appeals, Second Circuit

August 15, 2014

NEW YORK CITY DEPARTMENT OF HEALTH & MENTAL HYGIENE; NEW YORK CITY BOARD OF HEALTH; and DR. THOMAS FARLEY, in his official capacity as Commissioner of the New York City Department of Health & Mental Hygiene, Defendants-Appellees

Argued December 3, 2013

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Appeal from a January 10, 2013, order of the United States District Court for the Southern District of New York (Buchwald, J.), denying the plaintiffs' motion for a preliminary injunction. Plaintiffs brought suit challenging section 181.21 of the New York City Health Code on the grounds that it compels speech in violation of the First Amendment and that it violates the right to free exercise of religion under the First Amendment and the New York State Constitution. The district court held that the ordinance does not compel speech and is subject to rational basis review under the Free Exercise Clause, and proceeded to deny a preliminary injunction. We hold that the challenged ordinance is neither neutral nor generally applicable and thus is subject to strict scrutiny under the Free Exercise Clause . We vacate the order denying the preliminary injunction and remand for the district court to apply strict scrutiny to the ordinance.

SHAY DVORETZKY (Yaakov Roth, Todd R. Geremia, on the brief), Jones Day, Washington, DC, for Plaintiffs-Appellants.

MORDECAI NEWMAN (Larry Sonnenshein, Michelle Goldberg-Cahn, on the brief), New York City Law Department, New York, NY, for Defendants-Appellees.

Eric C. Rassbach, Daniel H. Blomberg, The Becket Fund for Religious Liberty, Washington, DC; Michael W. McConnell, Stanford, CA, for Amicus Curiae The Becket Fund for Religious Liberty.

Rory T. Gray, Alliance Defending Freedom, Lawrenceville, GA; Joseph P. Infranco, Alliance Defending Freedom, Scottsdale, AZ; M. Todd Parker, Moskowitz & Book, LLP, New York, NY, for Amicus Curiae Alliance Defending Freedom.

Akiva Shapiro, Gibson, Dunn & Crutcher LLP, New York, NY, for Amici Curiae The American Academy of Pediatrics, Infectious Diseases Society of America, Pediatric Infectious Diseases Society, and American Sexually Transmitted Diseases Association.

Before: LIVINGSTON, LOHIER, and CARNEY, Circuit Judges.


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Debra Ann Livingston, Circuit Judge

In Judaism, the " bris milah," or ritual circumcision of infants, which has been practiced for millennia, celebrates a covenant with God and " derives explicitly from a commandment . . . in the Hebrew Bible." 11 Encyclopedia of Religion, " Rites of Passage: Jewish Rites," at 7818 (2d ed. 2005). As part of this ritual circumcision, some Orthodox Jews, particularly Satmar, Bobov, Lubavitch, and other Hasidic groups, perform direct oral suction of the circumcision wound in a ritual act known as metzitzah b'peh (" metzitzah b'peh" or " MBP" ).

Over the last decade, the New York City Department of Health and Mental Hygiene (the " Department" ) has determined that metzitzah b'peh poses a health risk -- the spread of herpes simplex virus (" HSV" ) -- to male infants. Beginning around 2005, the Department embarked on a campaign to educate the Orthodox Jewish

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community about the risk. Concluding that this campaign was only a qualified success, the New York City Board of Health, which oversees the Department, promulgated section 181.21 (" § 181.21" or the " Regulation" ) in 2012, adding this provision to the New York City Health Code directly to regulate metzitzah b'peh. The Regulation prohibits any person from performing direct oral suction as part of a circumcision without first obtaining signed written consent from one of the child's parents. The consent form must contain the warning that " the New York City Department of Health and Mental Hygiene advises parents that direct oral suction should not be performed." § 181.21.

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 compelling speech in violation of the First Amendment and as burdening their free exercise of religion in violation of the same. The district court 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 pursuant to Employment Division v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), and Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993), so is subject only to rational basis review.

As to the second holding, we disagree.[1] The Regulation is neither neutral nor, on this record, generally applicable and therefore must satisfy strict scrutiny.[2] 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 underinclusive 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.

We vacate the district court's order denying plaintiffs' motion for a preliminary injunction and remand for the district court to consider whether plaintiffs have shown a likelihood of success on the merits applying strict scrutiny. Acknowledging the weighty interests at stake in this litigation (the plaintiffs' in the free exercise of their faith and the Department's in the health of newborns and in informed parental consent concerning risks these newborns face), we express no view as to whether plaintiffs have satisfied this standard, believing that careful adjudication

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will benefit in the first instance from the district court's comprehensive analysis.


A. Metzitzah b'peh

Jewish law requires that male children be circumcised on the eighth day after their birth, although circumcision may be postponed in some circumstances. According to the plaintiffs, this ritual circumcision, known as bris milah, is among the most important requirements of Jewish law and is derived from a covenant between God and Abraham. For thousands of years, Jews around the world have faithfully adhered to it.

One of the essential steps of bris milah, according to the plaintiffs, is metzitzah, during which suction is used to draw blood from the area of the circumcision wound. Traditional metzitzah, as practiced primarily among certain Hasidic groups, is performed by direct oral suction on the circumcision wound, or metzitzah b'peh. The plaintiffs assert that some Jewish religious authorities maintain that MBP is the proper means, and some deem it the only acceptable means, under Jewish law, to perform metzitzah.

Bris milah is performed by a mohel, typically a rabbi with specialized training. Mohelim are trained to take safety precautions when performing MBP. Among other precautions, mohelim do not perform circumcisions if they are exhibiting any symptoms of HSV infection; they minimize the duration of oral contact with the wound; and they rinse their mouths with an antiseptic before performing the ritual. Mohelim have performed metzitzah b'peh as part of bris milah around the world for millennia. Plaintiffs, while conceding that the Department " may use its own property, money, and agents to express its own views," believe it would be ...

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