NYC rule against Orthodox circumcision ritual may violate Free Exercise Clause

This case acquaints us with a religious ritual that few of us know about. During the circumcision ceremony, some Orthodox Jews "perform direct oral suction of the circumcision wound in a ritual act known as metzitzah b' peh." Since it determined that this ritual poses a health risk (the spread of herpes simplex virus), New York City issued a regulation that prohibits anyone from performing this ritual without obtaining written permission from the parents. The consent form says that New York City "advises parents that direct oral suction should not be performed." That regulation may be stricken from the books.

The case is Central Rabbinical Congress v. New York City Department of Health & Mental Hygiene, decided on August 15. The religious plaintiffs sought a preliminary injunction against enforcement of this regulation, claiming it constitutes coerced speech and also violates their freedom of religion. The district court denied the motion but, according to the Second Circuit (Livingston, Lohier and Carney), that court applied the wrong legal standard. Since this regulation targets a specific religious practice, the district court must evaluate its constitutionality under the "strict scrutiny" test, which is usually the death-knell in reviewing statutes and regulations.

The decision provides an interesting summary of the ritual. It also tells us that most adults have some form of Herpes Simplex Virus, though we do not show any symptoms. But HSV in newborns can be serious and life-threatening. The virus can be passed through oral contact with an open wound. Plaintiffs say there is no DNA proof that HSV has ever been transmitted through this ritual.

Under the Free Exercise Clause of the Constitution (which provides for "freedom of religion"), the government cannot pass a law or regulation that targets a religion or religious conduct. The Court of Appeals finds that the regulation here does in fact target such conduct, as it "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." Even if the rule is facially neutral, it is not neutral in operation. "The religious ritual it regulates is the only conduct subject to the Regulation," the Court says. In other words, the regulation does not apply to any other religious practice.

This means that the government cannot defend the rule simply by showing a rational, or reasonable, basis for it. Under the rational basis test, the government usually wins by articulating any reason that is not totally off-the-wall. In this case, the government has to satisfy the "strict scrutiny" test, which is a much narrower window to crawl through. The Court of Appeals will let the district court worry about whether the regulation satisfies that test.