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First Amendment Group Joins Bris Fight

First Amendment Group Joins Bris Fight

Becket Fund sees pattern of anti-Orthodox hostility in city’s actions. Is it right?

Associate Editor

There’s something “sinister” about City Hall’s “regulatory excess” and “bureaucratic targeting” of Orthodox Jews, says a prominent lawyer at the Becket Fund for Religious Liberty.

Writing on Becket’s website, Eric Rassbach, Becket’s deputy general counsel, sees a direct line of anti-Orthodox hostility, from the city’s human rights lawsuit against chasidic shops that post signs requesting modest dress to “another ongoing city effort to target a subset of the Orthodox” by an “unprecedented attempt to enlist Orthodox religious officials [the mohel] in its efforts to regulate the Jewish practice of circumcision.”

According to the city’s Department of Health and Mental Hygiene, a mohel, prior to a bris involving metzitzah b’peh (oral suction), must obtain signed consent from parents acknowledging that the ritual is a dangerous one. (The procedure is not practiced in all Orthodox circumcisions but primarily in haredi ones.) The city maintains that, since 2000, there have been 11 cases in New York of metzitzah-related transmissions of neonatal herpes, leading to two deaths and two cases of brain damage. The plaintiffs claim that “the alleged risks [are too] small and speculative” to be valid.

The Washington-based, non-sectarian Becket Fund, named after Thomas Becket, the archbishop of Canterbury who was murdered by King Henry II after the archbishop’s disputes with the monarchy, is perhaps the nation’s leading law group specializing in First Amendment religious freedom cases. Two weeks ago it filed an Amicus Curiae brief supporting the plaintiffs in Central Rabbinical Congress v. New York City Department of Health.

Earlier in the year, three prominent professional medical organizations, including the American Academy of Pediatrics, filed briefs on behalf of the city, citing “incontrovertible” evidence that the Herpes virus and other infectious diseases “have been transmitted through direct oral suction, and direct oral suction increases the risks of transmission.”

The case is on appeal from the U.S. District Court for the Southern District of New York, after a Manhattan federal judge refused to block the informed consent regulation from taking effect.

The Becket brief concentrates on its assertion that the city’s metzitzah regulation is driven by “an antagonism on the part of the secular leadership of the city” toward “manifestations of religion” in general, and yeshivish/ chasidic Orthodoxy in particular.

What’s the city’s motive? Rassbach, who co-authored the brief, writes on the Becket site, “One suspects it may have something to do with the significant demographic changes going on in New York City’s Jewish population. Because of differing birth and adherence rates, the future of Judaism in New York City increasingly appears to be Orthodox,” with the greatest growth in yeshivish/chasidic Brooklyn. Says Rassbach, “It may be that unreasoning fear of this coming demographic change is what is driving recent efforts to use the power of government to suppress Orthodox religious practices.”

City officials insist the issue is about health, not religion, with Mayor Bloomberg asserting that the right to practice one’s religion does not extend to harming children. (A spokeswoman for the health department said that because the city had not yet filed legal papers in the case she was not ready to comment on the Beckett Fund charges.)

(After the paper’s print deadline, the chief of the city’s administrative law division, Gabriel Taussig, issued the following statement: “The evidence of a link between the practice of MBP and the transmission of life-threatening herpes is indusputable, and has been established by the Centers for Disease Control and others. The consent requirement was adopted after the health concers associated with the ritual were discussed with members of the Orthodox community over a period of years and a proposed protocol whereby the Orthodox community attempted to address the issue on its own did not achieve the desired health goal. Anyone who wants to proceed with the ritual after confirming that they have been made aware of those concerns may do so.”)

In a telephone interview, Rassbach said that fear of a growing and unpopular community is “something we’ve seen before in American history. Sometimes a panic sets in and local governments adapt all sorts of measures to suppress those groups. It happened to the so-called Okies when they reached California during the Dust Bowl. The State of California and local municipalities put in all sorts of regulations to keep them in check, because the Okies were viewed as a threat. You saw the same thing with the treatment of Irish Catholics in the mid-1800s. It’s just my personal opinion, but I have to think that is some of what’s going on in New York City.”

According to the brief, the “pattern of anti-Orthodox hostility is the telltale smoke alerting courts to strictly scrutinize the city’s regulation of a religious ritual for anti-religious ‘fire.’”

The metzitzah regulation, according to the brief, “specifically targeted” Orthodox Jews and one Orthodox ritual. “The regulation stands alone; it is not part of a broader or more general effort to protect infants from consensual [medical] practices that carry similar risks or even greater risks of disease.” For example, said one rabbi who asked not to be identified, the city does not require signed parental consent before the city gives condoms to minors, though distributing condoms encourages sexual activity that surely leads to some sexually transmitted diseases. And the city does not require minors seeking abortions to get parental consent, despite recent court testimony by former workers in an abortion clinic in Philadelphia that “women were infected with gonorrhea and chlamydia from unsterilized instruments,” not unlike getting herpes at a bris from a less than hygienic mohel, but with far less regulation.

The Becket brief cites, among examples of anti-Orthodox “hostility,” the city’s human rights citations against the chasidic modesty signs, in a city where “dress codes are only illegal if they are motivated by Orthodox Jewish beliefs”; the “abuse of land use regulations” in the metropolitan area, aimed at preventing the construction of synagogues or day schools; the legal attempts (to date unsuccessful) to prevent the stringing of an eruv, which attracts Orthodox Jews to a community; and lawsuits, such as the one in Lawrence, L.I., charging that the school board was unduly influenced by Orthodox Jews. Most of these cases, said Becket, were accompanied by shameless and blatant expressions of hostility to Orthodox Jews.

Yet in a sign that the city’s legal rulings are far from uniform when it comes to the Orthodox community, in its recent push to expand bike lanes the city removed lanes originally proposed for the Satmar section of Williamsburg after complaints from the chasidim that immodestly dressed riders would be going through the neighborhood.

Rabbi Shmuel Goldin, president of the Rabbinical Council of America, a mostly Modern Orthodox group, said that while he was not sufficiently informed about the bris case, he was involved with a contentious eruv case in Tenafly, N.J. He preferred not to classify the Tenafly eruv opponents as motivated by hostility but by “discomfort, a fear of the unknown. There was a Jewish mayor openly saying she didn’t want Orthodox Jews moving in because it would change the nature of the community.”

The Orthodox population surge, necessitating Orthodox expansion into new or adjacent communities, may be exacerbating that fear. Rabbi Goldin said, “I wouldn’t be surprised if there was a similar discomfort appearing again. While we can understand some of those fears, that a large Orthodox influx might change the nature of a community — as the influx of any other ethnic or social group would — just as it is racist to oppose other groups from moving into your community, it would be racist to oppose the influx of Orthodox Jews,” or to throw up legal obstacles aimed at one group alone, making Orthodox growth in a community more difficult or impossible.

(In fact, the 2000 Religious Land Use and Institutionalized Persons Act puts the weight of federal law behind houses of worship in zoning cases; it stipulates that localities must have a “compelling interest” — increased traffic and changed neighborhood character are generally not seen as sufficient — in order to deny zoning requests by religious institutions.)

Steve Bayme, director of the American Jewish Committee’s department of Contemporary Jewish Life, says, “Without question, in a number of localities we have experienced anti-Orthodox backlash. To some extent, the ascending Orthodox demographic does send ambivalence through some people, but it has happened on a limited scale, in limited instances. The overall narrative is a positive one.”

Samuel G. Freedman, author of “Jew Vs. Jew: The Struggle For The Soul of American Jewry,” argues that not all opposition can be equated. “This [metzitzah b’peh] conflict is tremendously different from the eruv [conflicts] or even the attempts in San Francisco to ban circumcision altogether, because this has a clear public health consequence,” said Freedman. “After all, the practice is not being outlawed.” Signatures aside, “All that’s being asked for, which seems to me to be totally reasonable, is informed consent on the part of the parents.”

Freedman, a professor of journalism at Columbia University, says, “While some of the people who oppose [metzitzah b’peh] are surely some of the same people who oppose [any] eruv, I don’t see this as synonymous with the anti-eruv movement that was based on an indefensible opposition or fear of Orthodox Jews on the part of non-Orthodox Jews.”

Nevertheless, Rabbi Avi Shafran, spokesman for Agudath Israel, representing yeshivish and chasidic Jews, e-mailed that in his community, “It does strike many as if the city is on the war trail — against several groups of citizens,” smokers, soda drinkers, certain “Orthodox Jews among them. The assault on metzitzah b’peh is unwarranted, and the city’s declared goal of eradicating its practice reveals a frightening cavalier attitude toward religious rights. The suit against storekeepers in Williamsburg may be ludicrous but it is also deeply disturbing.

“All in all,” says Rabbi Shafran, “there are certainly grounds for concern that New York City is being less than sensitive to the deeply held convictions of Orthodox Jews. That should be a source of chagrin to all Jews, and all residents of our city.”

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