There is, however, evidence — though contested evidence — that metzizah b’peh can in rare instances cause death or brain damage for the infants, because of transmission of Herpex Simplex Virus to the child. (According to the city, “[t]he type [of virus] at issue here, HSV‐1, is present in 60% of American adults and 73% of adults in New York City.”) There are apparently about 15 cases of neonatal HSV-1 infection in the 125,000 yearly births in New York City; from the court’s summary of the facts, it appears that there are on average three deaths per year under such circumstances, and several instances of brain damage per year.

According to the New York City’s studies (which are apparently controversial), “the practice of [metzizah b’peh] potentially contributes to the 10% of HSV infections among infants that occur after birth.” And since the practice occurs only among a small subset of the population, a study cited by the City concluded that the rate of infection among children on whom metzizah b’peh was performed “was three to four times greater than for males born in New York City who did not have direct oral suction.”

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Because of this, the City has tried to discourage the practice, through a regulation requiring written informed consent:

Section 181.21 prohibits a person from performing oral suction during a circumcision unless that person obtains signed consent from a parent or guardian of the infant…. The consent form must contain the following statement: “I understand that direct oral suction will be performed on my child and that the New York City Department of Health and Mental Hygiene advises parents that direct oral suction should not be performed because it exposes an infant to the risk of transmission of herpes simplex virus infection, which may result in brain damage or death.”

But today, in Central Rabbinical Council v. N.Y. City Dep’t of Health & Mental Hygiene (2d Cir. Aug. 15, 2014), the Second Circuit held that this regulation had to be evaluated by the district court under so-called “strict scrutiny” — a difficult standard to meet, though not an impossible one — because it was targeted solely at a religious practice (one paragraph break added):

[T]he Regulation is not neutral in “operation,” as assessed in “practical terms” [citing Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah] (noting that “effect of a law in its real operation is strong evidence of its object”). As a practical matter, § 181.21 — just like the ordinances in Lukumi — is not neutral because the religious ritual it regulates is “the only conduct subject to” the Regulation, which was “drafted . . . to achieve this result.” … [Section] 181.21 is decidedly not like the neutral statute at issue in Employment Division v. Smith, nor does it fit within the cases Smith cites as involving neutral laws. The statute in Smith prohibited the use of peyote both when it was used for secular purposes and when it was used as a religious sacrament. The Court reasoned that because the statute was “concededly constitutional as applied to those who use the drug for other reasons,” the Smith plaintiffs were not constitutionally entitled to a religious exemption from a law that was valid as applied to non‐religious uses. Similarly, every single case cited by the Smith Court to demonstrate that the Court has “consistently held that the right to free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes . . . conduct that his religion prescribes,’” involved laws encompassing both secular and religious conduct…. [I]n contrast …, § 181.21 purposely and exclusively regulates particular religious conduct and nothing else. In contrast, § 181.21 is in key respects similar to the targeted non‐neutral law in Lukumi. The Court held that the ordinances in Lukumi, which prohibited ritual animal killing, were non‐neutral and targeted because their burden fell on “almost” no one but the disfavored religious group. Similarly here, the burdens of the Regulation fall on only a particular religious group — and in fact exclusively on members of one particular subset of that religious group.

The court also offered the following alternative argument for its position (though under its analysis, the law required strict scrutiny even in the absence of this argument) (one paragraph break added):

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In light of the sparse record at this preliminary stage, we cannot conclude that § 181.21 is generally applicable. Pertinently, the Regulation applies exclusively to religious conduct implicating fewer than 10% of the cases of neonatal HSV infection, while it “fail[s] to [regulate] nonreligious conduct” accounting for all other cases. Yet, the record is almost entirely devoid of explanation, much less evidence in support of explanation, for such selectivity. There may be reasons for selectively focusing on MBP — perhaps the risks of infection from caregivers in the home or hospital are too diffuse to address, for instance, or are not as grave. At oral argument, the Department asserted that its officers lecture doctors during hospital rounds about the risk of intrapartum transmission from mother to infant. [Footnote: As already noted, 85% of the cases of neonatal HSV involve intrapartum transmission from mother to infant and such transmission, in the words of the Department’s expert, “is most likely to occur when the maternal infection is acquired during the last trimester of pregnancy.”] The record is largely silent, however, regarding these lectures, or why they are sufficient (or the most, practically speaking, that can be done) both to deal with the most common route of neonatal infection and adequately to advise parents about preventable transmission risks. The Department may have legitimate reasons for addressing HSV infection risk among infants primarily, if not exclusively, by regulating MBP, even though such conduct constitutes a small percentage of the overall number of cases. On the present record, however, the plaintiffs have made a sufficient case for strict scrutiny by establishing that the risk of transmission by reason of metzitzah b’peh has been singled out.

A few thoughts:

1. The court took pains to stress that this might be the sort of (rare) regulation that targets a religious practice but nonetheless passes strict scrutiny. “The Department has asserted interests that are substantial and may prove, on analysis, to be compelling. And the means it has chosen to address these interests (means that fall short of outright prohibition of MBP and that may further the goal of informed parental consent) may be appropriately tailored, albeit intrusive on a longstanding religious ritual. Mindful of the serious interests at stake on both sides, we express no view as to whether the plaintiffs have borne their burden of establishing a likelihood of success on the merits.”

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2. Stepping back a bit, there are two ways of thinking about the principle (set forth in Employment Division v. Smith (1990) and Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah (1993)) that laws targeting religious practice are subject to strict scrutiny, and thus presumptively unconstitutional.

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A. One is that the principle applies to situations where a restriction is enacted because of the religiosity of a practice, rather than because of any harm the practice causes — the evidence being that the restriction doesn’t cover comparable nonreligious behavior. This is what happened in Lukumi, where city ordinances banned religious sacrifice of animals but virtually no other killing of animals (and also couldn’t be explained as being focused on conduct that especially spread disease or unpleasant smells). Likewise, bans on wearing religious headgear that allow all other secular headgear, bans on religious circumcision that would allow all secular circumcision, religiously motivated firings of private employees (i.e., firings motivated by the employer’s own religion) but not secularly motivated firings of employees, and so on would qualify under this principle.

But this is the rare case where the prohibited practice has no clear secular analog. (Indeed, the regulation equally applies secularly motivated behavior of this sort — it’s just that to my knowledge no one engages in such behavior.) And while the court is right that most herpes transmissions to infants happen in other ways, metzizah b’peh seems to be the rare circumstance in which (1) transmission can be avoided through (2) a simple forbearance from doing a particular thing once (as opposed to, say, onerous hygienic precautions that pregnant women have to take for months of their pregnancy). So it seems pretty likely that the City was really targeting all the easily remediable behavior that implicates the government interest, because of the disease-spreading risks of the behavior rather than because of its religiosity, though it happens that this behavior is entirely religious.

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B. Yet there’s an alternative understanding of the Smith/Lukumi principle: When a law covers only religious behavior, there is an extra risk of secret (and perhaps even subconscious) anti-religious motivation on the government’s part, and an extra risk that normal political processes will be inadequate for screening out unjustified regulation (since only a religious minority is affected by the law). Therefore, strict scrutiny should be applied to all such regulations, in order to smoke out the risk of such antireligious motivation. If the law really is narrowly tailored to a compelling government interest (as the law here might well be), then the presumption of anti-religious motivation would be rebutted. But if the law seems a poor fit to the interest, or the interest doesn’t seem that important, then that — coupled with the fact that the law is only applicable to a particular religious group — suggests that the law is indeed ill-motivated and should be struck down.

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This, I think, is the understanding that the Second Circuit applied in this case.

3. Note that this case is not relevant to the controversy about male circumcision bans generally (in the unlikely scenario that such a ban would be enacted in any American jurisdiction), or for that matter less restrictive regulations of male circumcision. Well over 90 percent of male circumcisions in the United States are conducted for nonreligious reasons (since only about 3 percent of the U.S. population belongs to religions that call for circumcision, yet over 50 percent of American boys are circumcised). Whatever one may say (and I’ve said plenty) about constitutional objections to such regulations — whether on parental rights grounds, Free Exercise Clause grounds, or some other grounds — the “this only targets a religious practice” argument doesn’t apply there.