Tag Archives: circumcision

Court Denies Preliminary Injunction in Circumcision Case

Last week a federal judge ruled that the New York City Department of Health can require mohelim to obtain parental consent before they perform circumcision involving the ritual of metzitzah b’peh (MBP). (Click here for the text of the decision in Central Rabbinical Congress v. NYC Dept. of Health)

MBP, as defined by the Court in this case, is a “practice among some observant Jews in which a ritual circumciser, or mohel,” places his mouth on the place of circumcision in order to draw blood away from the wound. (The halachic background behind MBP will be discussed briefly below, and at greater length in an upcoming post.)

The regulation at issue is § 181.21 of the New York City Health Code, which: defines “direct oral suction” as it relates to circumcision; requires that written parental consent be obtained before “direct oral suction” is performed during circumcision; and requires the person performing the circumcision to keep the consent form for at least one year.

Before the regulation took effect, several Jewish advocacy groups, along with some mohelim, sued the NYC Dept. of Health to prevent its enforcement. However, they were dealt a big setback last week when U.S. District Court Judge Naomi Reice Buchwald denied their request for a preliminary injunction. Continue reading

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Outlawing Jewish Law

Apparently Tennessee lawmakers do not want to be left out of the anti-Sharia movement inspiring bills and ballot initiatives directed against Islamic law in a number of other states. (Click here for an earlier post on this topic.) However, the bill recently introduced in Tennessee’s state senate would go farther than other suggested legislation. It would in fact make following Sharia law a felony, punishable with at least 15 years in prison. (Click here for the bill.)

While this website dedicated to Jewish law, not Islamic law, the Tennessee bill is significant because it raises the following question: What would happen if (God forbid) American states would outlaw the practice of Jewish law? This is not merely a hypothetical question. Currently, there is an attempt in San Francisco to implement a voter initiative that would ban circumcision of minors, including religious circumcision. Violations would be punishable with a one-year prison sentence and a $1,000 fine. (Click here for more information.)

Though the aforementioned proposed legislation is unlikely to be successful, there have certainly been times throughout history when governments enacted laws forbidding Jews from practicing their beliefs (e.g. the Spanish Inquisition). Often those decrees implicated the halachos of Kiddush Hashem (sanctifying God’s name by sacrificing one’s life). The laws of Kiddush Hashem are complex, but I would like to point out one interesting issue.

The Rambam (Hilchos Yesodei Hatorah, ch. 5, §§1-2) states that general rule is that if a Jew is threatened with death unless he commits an action prohibited by the Torah, he must commit the sin and not surrender his life. If, however, the act in question violates one of the three “severe sins” (i.e. idolatry, illicit relations, and murder), then one must sacrifice himself and not commit the sin. The Rambam continues (ch. 5, § 3) with the following:

All of the above only applies when there is no specific decree (against the Jews). However, when there is a decree, meaning that an evil ruler such as Nebuchadnezzar will make a decree against the Jewish nation in an attempt to annul their faith or a specific commandment, then a Jew must give up his life in order not to violate any commandment.

The Lechem Mishna infers from the words of the Rambam that only a decree that is directed solely against the Jewish nation would require self-sacrifice. However, if a decree does not single out the Jews, but applies to all citizens, then self-sacrifice would not be necessary (except for the “severe sins”). (See also, Nimukei Yosef to Sanhedrin 74b; Shulchan Aruch, Yoreh De’ah 157:1; Shach 157:6.)

Thus, theoretically, if a government would prohibit the Jewish nation from fulfilling their religious obligation to circumcise every male and threaten a punishment of death, then a Jew would be required to continue to perform circumcision and face the penalty. However, if, as in San Francisco, the ban on circumcision would not single out Jews, but would apply to all citizens, then, if it was punishable by death, one would seemingly be permitted to comply with the ban.

Thankfully, though, the potential punishment for the San Francisco circumcision ban would not be death. Consequently, another question is raised: Must a person sacrifice his freedom (by going to jail) or his money (by being fined) in order to fulfill a positive commandment? The answer to the second question is apparently “yes”––one must spend at least 1/10 (but no more than 1/5) of his wealth in order to fulfill a positive commandment. (In order not to violate a negative commandment, a Jew must give up his entire wealth.) See Shulchan Aruch, Orach Chaim § 656; Mishna Berurah 656:8. I have not, as of yet, found any sources answering the first question (regarding prison). Any suggestions would be greatly appreciated.

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