Cent. Rabbinical Cong. of the United States v.

• Decision Date: 15 August 2014
• Docket Number: No. 13–107–cv.,13–107–cv.
• Citation: 763 F.3d 183
• Court: U.S. Court of Appeals — Second Circuit
• Parties: CENTRAL RABBINICAL CONGRESS OF the UNITED STATES & CANADA; Agudath Israel of America; International Bris Association; Rabbi Samuel Blum; Rabbi Aharon Leiman; and Rabbi Shloime Eichenstein, Plaintiffs–Appellants, v. 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, Defendant–Appellees.

763 F.3d 183

CENTRAL RABBINICAL CONGRESS OF the UNITED STATES & CANADA; Agudath Israel of America; International Bris Association; Rabbi Samuel Blum; Rabbi Aharon Leiman; and Rabbi Shloime Eichenstein, Plaintiffs–Appellants,

v.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, Defendant–Appellees.

No. 13–107–cv.

United States Court of Appeals,Second Circuit.

Argued: Dec. 3, 2013.

Decided: Aug. 15, 2014.

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, N.Y., 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, N.Y., for Amicus Curiae Alliance Defending Freedom.

Akiva Shapiro, Gibson, Dunn & Crutcher LLP, New York, N.Y., 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.

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

BACKGROUND

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 circumcisionwound. Traditional metzitzah, as practiced primarily among certain Hasidic groups, is performed by direct oral suction on the circumcisionwound, 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 sinful for them, as mohelim, “to discourage parents from performing the bris milah ritual in what they regard as the religiously correct manner.”

B. HSV Transmission

The herpes simplex virus, or HSV, is present in some form in most American adults.³ HSV infection may periodically cause “clusters of small, painful blisters [to] appear on the skin at the point where [the] virus was originally introduced,” but such infection “does not usually cause symptoms” in adults. J.A. 366–67. By contrast, HSV in newborn infants “can be serious and life-threatening because newborn infants do not have fully developed immune systems.” J.A. 369. Approximately one-fifth of newborn infants infected with the herpes simplex virus die from the infection, and those surviving often suffer brain damage. The incidence of neonatal herpes infection (thankfully) is small: there are only about 15 cases each year in New York City, among approximately 125,000 live births.

Among newborn infants who do become infected, approximately 85% acquire the virus from their mothers during birth as they come in contact with virus present in the birth canal. Another five percent acquire the virus while in the mother's uterus. In only the remaining 10% of neonatal HSV infection cases do infants contract the infection after birth.

Most newborn infants are protected against HSV infection—accounting for the small number of cases—because infected mothers (and most mothers are infected) typically transfer antibodies against HSV to their babies through the placenta. These maternal antibodies protect the newborn against infection for several months after birth. If a mother does not become infected with the virus until the late stages of pregnancy, however, her body may not produce antibodies in time for them to be transferred to the baby, who is thus at greater risk of infection from the mother during birth (as well as from other sources in the months thereafter). According to one of the City's experts, “[i]ntrapartum transmission from mother-to-infant during delivery [which accounts for 85% of neonatal HSV infection] is most likely to occur when the maternal infection is acquired during the last trimester of pregnancy.” J.A. 315–16.

The practice of MBP potentially contributes to the 10% of HSV infections among infants that occur after birth. As to these cases, while the parties dispute whether MBP has ever actually resulted in HSV infection in an infant, the record evidence to date clearly establishes that it is biologically plausible that HSV can be transmitted through metzitzah b'peh—so that if an infected person performs the ritual, the risk of transmission is real. The Department's five infectious disease experts, as well as Dr. Thomas Farley, its Commissioner, provided written testimony that direct oral suction puts infants at heightened risk for HSV infection and that the risk of such transmission is incontrovertible. Dr. Anna Wald, who among other qualifications assists in drafting guidelines on the management of HSV infection for the Centers for Disease Control and Prevention, characterizes the evidence linking direct oral suction with neonatal infection as “strong, consistent, and more than...