A Covenant, with Consent

The Jewish tradition holds that the Lord directly ordered Abraham to perform circumcision (Genesis 17:11). The order applied to Moses (Lev. 12:3), and was continued by Joshua for the freed slaves of the Exodus (Joshua 5:2). Centuries later, Ezekiel was contemptuous of the uncircumcised (32:20-21). John the Baptist and Jesus were circumcised (Luke 1:59, 2:21), but Paul excused newcomers (Gal. 5:26). Over the millennia, the ritual (“bris”) acquired great significance. Even Spinoza, excommunicated from Jewry in the seventeenth century, thought the ritual assured the survival of the Jewish people.

As a surgical matter, the procedure is common, quick, and uncomplicated. It is the next step that has landed the practice in a New York court. To staunch post-surgical bleeding, suction has long been used. Early practice required the wielder of the knife (“mohel,” in Hebrew) to use oral suction for that purpose. In the modern age most rabbinical authorities prefer that the mohel use a glass tube; current medical opinion holds that a low risk of infection of the infant is otherwise present. Strictly Orthodox Jews, however, prefer the historic method—offensive as it may be to modern sensibilities.

On September 13, prompted by genuine medical concerns, the New York City Board of Health adopted a regulation requiring the written consent of the parents to the old procedure. The consent form advises that the oral method poses the risk of herpes transmission. A mohel who fails to obtain such consent may be fined if the procedure results in parental complaints.

Does the new regulation constitute a violation of the First Amendment guarantee of the “free exercise” of religion? The question is not governed by Supreme Court opinion on state rules of general applicability that affect religion incidentally. “We have never held,” the Court said in Smith (1990), “that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate” (110 S.Ct. at 1600). In that decision, the Court approved Oregon’s general prohibition of the use of the hallucinogen peyote, which happened to ban the drug for sacramental use by Native Americans.

The opposite result is reached when regulations cover a central religious practice, as in Church of the Lukumi Babelu Aye v. Hialeah (1993). When members of the Santeria religion—an African-Catholic syncretism that practices animal sacrifice—announced plans to open a church in Hialeah, Florida, the city adopted ordinances prohibiting ritual sacrifice. Because the ordinances were found to have “as their object the suppression of religion,” they were set aside by the high Court (113 S.Ct. at 2231).

So religiously neutral legislation that incidentally obstructs a particular religious practice is unobjectionable. But legislation that targets and suppresses a particular religious practice is out of bounds. The New York regulation is not of the former type—that is, it’s not a general rule that incidentally affects a religious practice. Nor is it a rule governing the religious act itself. Rather, it is aimed at an event that follows but is intimately connected to a religious one. That is incomparable to the recent, controversial decision of a German court criminalizing the ritual in its entirety (Berlin’s Justice Ministry later ruled that circumcision was permissible under medical supervision).

Because the New York consent form, when signed by the parents, permits the ritual to go forward, a First Amendment question does not arise. If the consent form is not presented to or signed by the parents, the ritual may nevertheless go forward (with their tacit consent), with a subsequent and remote risk that the mohel will be fined.

The regulation does not, then, interfere materially with the ritual, and the risk of punishment of the mohel is insubstantial. Moreover, the regulation is based on a credible health concern, which favors its constitutionality. And because the rule does not have as its “object the suppression of religion,” as in the Hialeah case, a First Amendment issue does not arise, and the regulation should stand.