By Avraham Weissman – Hamodia
NEW YORK – 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.
Download briefs:
Alliance Defending Freedom
Stop being paranoid.
Tomorrow Bloomberg might decide that the “ancient Torah” is negative to psychological well being.
He may decide that prior to making any Shiurim you must have signed consent that the teacher notified the parents of this.
etc. etc. etc.
Where will it stop?
Most Rabbonim hold that you do not have to do Metiztah with Peh. If you want to take a risk based on an unproven Halacha, go ahead.
Don’t fore this on other jews. Let them chose for themselves. Let people decide for themselves and let them sign that they agree with Metzitzah B’peh.
And they are irrelevant. It doesn’t matter how bad a herpes infection is in a newborn. The risk is unproven, and even if it were proven, and as high as they claim, that is still a tiny and acceptable risk, which we MUST accept because it’s a mitzvah. We are all COMMANDED to risk our childrens’ lives and health for milah. Only if there is a significant heightened risk for some particular infant, do we exempt that infant from milah. An insignificant risk such as is alleged here, or a general risk to all infants, is not grounds for changing… Read more »
That is a very valid and well reasoned point. The problem is that rabbonim have not been honest with this issue, rather than acknowledging the risks while explaining the mitzvah (so that parents can make the decision that is right for them), people like #18 resort to yelling and name calling and bullying. It’s another example of us not addressing an issue ourselves, and thus forcing the authorities to do it for us.
Be careful. You are making very dangerous statements, and you should make sure you fully understand what Herpes Simplex Type 1 does to an infant. Unlike in adults or older children, exposure in newborn infants can cause them to become very sick quickly with high fever and seizures, and may become lethargic, and can even cause brain damage and death. Herpes in infants is not a joke, it kills and maims thousands of infants a year. This is a medical fact, and it has nothing to do with bris milah or metzizah b’peh. Herpes Simplex Type 1 (which is NOT… Read more »
Some Bad news for you: The door has been open for many years. Regulation is nothing new in NYC. But this law is a reasonable and smart one.
I agree with you that government shouldn’t stick it’s noose into every aspect of your life. But that brings up the obvious question; what is government meant for?
Conservatives (and defiantly liberals) believe that government has an obligation protect us from unnecessary harm. That being said, this law does no wrong; the government is only ensuring that YOU agree with Metziza B’peh and that you have good knowledge of the issues.
Losing an unnecessary war with the government is of no use and will only do harm to our cause by adding momentum to the anti-Bris-Millah Movement.
And there are many others who are as smart as Michael McConnell who don’t think the courts have a reasen to strike this law down. The previous loss for this group, proves my point.
You claim that “the courts have no reasen to declare this law unconstitutional because it does not go against your freedom of religion”. Do you think you know the constitution better than Michael McConnell? He thinks the courts do have a reason to strike this down.
It’s important to understand that government always starts small and grows. It’s the ultimate “Yetzer Hara” in that respect. Everyone is fee to choose a mohel who they trust, both halachicly and as a physician, just as everyone is (mostly) free to choose their own doctor. The government interjecting itself into this process opens the door, down the road, to more and further regulations and restrictions, which could realistically end with a ban (or near ban) on circumcision. There are a number of groups working towards this end for anti-religious and/or medical reasons. Some are fairly large and influential. Thinking… Read more »
Read the article again. You got your facts wrong. Most cases of herpes are not caused by the hospital. and one third is because of Bris Millah and Metziza B’peh.
We all know the the muslims got their issues. But we got ours too, and we have to deal with them in a responsible way. Remember: Blame is lame.
Bloomberg could talk from today to tomorrow.
The fact is that right now there is no ban on Metziza B’peh. The new law is reasonable one. The courts have no reasen to declare this law unconstitutional because it does not go against your freedom of religion.
NYC never has and never will be able to ban Metziza B’peh. If somehow they do, we will have the courts on our side and the constitution guarantees that will win on that case.
22 babies got herpes. 7 of them were after milah. That’s all! How does that even indicate a direct link to the milah? How do you know that these 7 didn’t get it the same way the other 15 did?
You are an am ho’oretz. Metzitzah is an integral part of the mitzvah of milah. On a Shabbos bris, if the mohel notices tzitzin she’einon me’akvin before the metzitzah he goes back and removes them; if he only notices them after the metzitzah, but before he bandages the wound, he may not go back and remove them, because the mitzvah is already done. This proves that metzitzah is NOT to prevent infection, it’s part of the mitzvah that Hashem gave us. And we say after every bris “avodoso pesulah, im SHLOSH EILEH lo yaaseh loh”. Go look in Sdei Chemed… Read more »
Mayor Bloomberg stated in a public phone call his objective is to eventually ban Metziza B’peh – this is the first step towards it, which is why it is being fought tooth and nail. When self hating Jews get involved in practicing Mitzvos, the results are never good
The next time you have a headache will you take an aspirin or will you cut the throat of a bird with a coin over the painful side of your head? (Gittin 68b) For a nosebleed do you find a Kohein named Levi and spell his name backwards? (Gittin 69b) And the list goes on. Rav Sherira Gaon (Otzar Hageonim Gittin 68b) states that chachomim were not physicians and that they were only recommending procedures that were effective at that time. In other words, as per one of the Gaonim, what was right many years ago may be less so… Read more »
The hospital — the place most babies spend the first 2 or more days of life — is the biggest source of infant herpes infections. The “study” quoted in the vos iz neias article looked at babies born in central Israel hospitals. How does anyone possibly know that the (very few!) herpes-infected male babies didn’t pick up the herpes virus in the hospital????? Yet no one is telling mothers and fathers to sign a consent form, listing all of the herpes risks (and the bacteria and other risks of infection) before entering a hospital prior to childbirth. People who want… Read more »
Wht happens if a parent reads the warning and says, sorry, nope, not for my child? Will community pressure be brought to bear against them? Will the mohel refuse to do the milah? Will their kids not be admitted to school? What if the child has a health condition that would make MB particularly dangerous for them (or for the mohel). Can you get a heter not to do it? Can a parent get a heter just because you are uncomfortable with it or feel it’s unsafe?
Whens the next pogrom? Really??? Does that irrational statement have ANYTHING to do with this article? No!
Thanks for the support.
Oh really, There is no scientific evidence?
Just today a NEW Israeli Study was released. This study shows a Direct link between Metziza B’peh and Herpes.
But don’t take my word for it, read this:
http://www.vosizneias.com/128402/2013/04/17/jerusalem-israeli-study-shows-direct-link-between-metziza-bpeh-and-herpes
I agree with you.
As of now the law does not go against religion. That is the issue. That is why the courts have thus far ruled that the law is constitutional. Banning Bris Millah or making you do in a hospital goes against our religious beliefs. We dont need this case to guaranty our rights. They are already guaranteed… not by the courts, but by a constitution that clearly says that governments have no right to restrict us from our religion. This case is not to protect us from a slippery slop scenario. This a case to protect those who try to force… Read more »
So? When is the next pogrom?
Remember 1991?
#2 It’s ‘anti religious’ because there is NO scientific evidence that ‘metzitzah b’peh ‘ is harmful.
Wicked government…not G-d fearing.
What is the premis that the government will ban Bris Milah?
This is a reasonable measure by the government, to ensure that parents will know that there are dangers to Metzitah B’peh. They (the parents) will then chose what THEY believe in.
Bottom line, no Rav should have the right to force his mere opinion on you. People should be knowledgeable of the issues and decide for themselves.
Once government starts getting involved you don’t know where they will stop. What if the next requirement will be in a sterile hospital environment and then with a qualified surgeon. Lets leave religion to frum Rabbonim – not to Bloomberg!
Of the attitude and measures which are being taken to enforce these new rules and protocol. It’s almost unprecedented that in recent years there has been so much negativity surrounding an age-old mitzvah, and one that is so widespread, at that. It’s not just ensuring that the mohel isn’t diseased, although granted that would be the case even if this wasn’t a legal issue, it’s about maintaining the integrity of Jewish law in the context that Jewish law sees fit, and that is not something that the government can tamper with. Since when do government officials stake out brissim with… Read more »
Michael McConnell is perhaps the USA’s foremost expert on the Religion clauses.
Some poskim say yes, others say no, there are not other ways.
The problem with the consent forms is that it won’t stop there. We need to fight it now, on ground we can afford to lose, rather than relax now and then end up having to defend core territory.
Why is this anti-religious. All this is ensuring is that parents agree and know that there are other ways to do Bris – according to Halacha!
maybe instead of questioning the mitzvah of metzitza b’peh it should/could be highly recommended that mohalim periodically get checked for strep throat and herpes; as that seems to be the main objective. not to give babies herpes or any other diseases