Photo Credit: Yonatan Sindel / Flash 90

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.


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Rabbi Michael J Broyde, author of a dozen books and countless articles, is a law professor at Emory University and the Berman Projects Director in its Center to the Study of Law and Religion. He has served in a variety of rabbinic roles in the United States, from director of the Beth Din of America to Rabbi of the Young Israel in Atlanta and much more.