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.