Central Rabbinical Congress v. NYC Dept. of Health & Mental Hygiene, No. 13-107 (2d Cir. 2014)Annotate this Case
Plaintiffs filed suit challenging section 181.21 of the New York City Health Code, which regulates metzitzah b'peh, the direct oral suction of the circumcision wound of an infant as a part of a bris milah. Plaintiffs argued that the Regulation compelled speech and burdened their free exercise of religion in violation of the First Amendment. The court agreed with the district court that the Regulation does not compel speech. However, the court concluded that the Regulation is neither neutral nor generally applicable and therefore must satisfy strict scrutiny. The Regulation is not neutral because it purposefully and exclusively targets a religious practice for special burdens and the Regulation is not generally applicable because it is underinclusive in relation to its asserted secular goals. Accordingly, the court vacated the district court's denial of plaintiffs' motion for a preliminary injunction and remanded for the district court to consider whether plaintiffs have shown a likelihood of success on the merits applying strict scrutiny under the Free Exercise Clause.