Central Rabbinical Congress of the United States & Canada v. New York City Department of Health & Mental Hygiene
2014 U.S. App. LEXIS 15726
2d Cir.2014Background
- NYC Regulation §181.21 requires written consent before performing direct oral suction during circumcision on an infant under one year old.
- Regulation singles out metzitzah b’peh (MBP), a ritual practice by certain Orthodox Jewish groups.
- Dept. argued MBP poses HSV risk; cites study linking MBP to neonatal herpes and campaigns to educate community.
- District court denied preliminary injunction, applying rational-basis review under Smith/Lukumi framework.
- Appellate panel holds Regulation not neutral or generally applicable, thus subject to strict scrutiny and VACATES/remands for further analysis.
- MBP is a religious ritual; health risk and parental-informed-consent goals underlie the Regulation; education efforts preceded enactment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is §181.21 neutral in fact and on its face? | MBP-targeted regulation; facially and operationally nonneutral | Regulation aimed at public health, not religion per se | Not neutral; strict scrutiny required |
| Is §181.21 generally applicable or underinclusive? | Regulation covers MBP but not secular risks | Addresses a significant MBP-specific risk within broader health goals | Not generally applicable on record; stricter scrutiny applies |
| What level of scrutiny applies to §181.21? | Free Exercise requires strict scrutiny | Neutral, generally applicable laws use rational basis | Strict scrutiny applies to §181.21 |
| Do plaintiffs have likelihood of success on merits under strict scrutiny? | Regulation fails narrow tailoring for a compelling interest | Regulation reasonably furthers health and informed consent | Remand for district court to assess likelihood of success with strict scrutiny (no final holding yet) |
Key Cases Cited
- Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) (not neutral when targeting a religious practice; strict scrutiny required)
- Employment Div., Dep't of Human Res. of Oregon v. Smith, 494 U.S. 872 (1990) (neutral, generally applicable laws reviewed under rational basis)
- Cantwell v. Connecticut, 310 U.S. 296 (1940) (free exercise includes belief and expressive conduct protections)
- Commack Self-Serv. Kosher Meats, Inc. v. Hooker, 680 F.3d 194 (2d Cir. 2012) (neutrality/generally applicable analysis in free exercise context)