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
The basketball team of the Beren Academy in Houston, Texas received some good news today: they will not have to forfeit a playoff game scheduled for Shabbos, because the league would reschedule it. The Texas Association of Private and Parochial Schools (TAPPS) originally would not change the time for the game, set for 9 p.m. on a Friday night. However, after several players and parents filed a lawsuit in U.S. District Court alleging a violation of religious freedom, TAPPS quickly changed its mind. (Click here for the full story and here for the papers filed in court.)
In a statement issued by the Beren Academy, the school made it clear that it opposed taking legal action, but was thankful that the conflict was resolved. Signing on to the complaint was a difficult decision for some of the plaintiffs, as well. According to one parent, “We talked about, does God really want us to do this? Are we going to look good or poorly in his eyes? It came down to the gut.”
Several of the plaintiffs’ lawyers also commented on this hesitation:
“There was resistance to our bringing the lawsuit. We’re sorry that there are members of the Jewish community who are reluctant to challenge bias and prejudice as a result of this. But this case shows that sometimes legal action is necessary to get a result.”
“Either way, we could see this was going to serve as a great life lesson for the kids.”
What kind of lesson did this teach the children? What did it show to the world?
It is indisputably admirable that the basketball team made national headlines with their unwavering commitment to the sanctity of Shabbos. But what did filing a lawsuit achieve? Continue reading
With the holiday of Sukkos approaching, many are thinking about how and where they will build their temporary dwellings this year. Most are very familiar with the halachic requirements for constructing a valid sukkah. For others, though, questions of American law also arise. For instance, Rabbi Zalman Paris of the Chabad of TriBeCa would like to put a sukkah in a small public park…
“But a request for a display in a public space raises difficult questions. Is the sukkah merely a cultural symbol, or is it unmistakably religious in character? Does the government endorse its religious significance by allowing it to occupy a big chunk of a park when symbols of other faiths are not represented?”
Read more from the New York Times
Back in November 2010, Oklahoma voters utilized a ballot initiative in an attempt to ban courts in their state from considering and applying Islamic law. Though such action might seem absurd, 70% of Oklahoma’s voted in its favor. Not surprisingly, Muslim groups wasted no time in challenging the state’s constitutional amendment in court. After a federal judge issued an injunction against the amendment, state officials filed an appeal with the 10th Circuit.
Although the Oklahoma law is getting much publicity, a number of other states have actually considered similar measures. In a recent example, a Texas state representative proposed an amendment to his state’s constitution that would prevent courts from applying any “religious or cultural law.” (Click here for the story, and here for the text of the amendment.) The language of this bill would undoubtedly include Jewish law.
If passed, the Texas law would prevent courts from enforcing a provision in a will or trust that refers to Jewish law, a shtar heter iska (a document that ensures compliance with the Torah laws of usury), or a ketubah (a document that delineates a husband’s obligations to his wife in accordance with halacha). A number of courts nationwide have in fact ruled on such issues. See, e.g., Gordon v. Gordon, 332 Mass. 197 (1955) (analyzing a will that disinherited children marrying outside of the Jewish faith); Bollag v. Dresdner, 495 N.Y.S.2d 560 (N.Y. City Civ. Ct. 1985) (refusing to award interest because the parties executed a heter iska); Minkin v. Minkin, 180 N.J. Super. 260 (1981) (specifically enforcing the terms of a ketuba). For more examples of American courts citing Jewish law as authority, see Daniel G. Ashburn, Appealing to a Higher Authority?: Jewish Law in American Judicial Opinions, 71 U. Det. Mercy L. Rev. 295 (1994).
Thus, a law prohibiting courts from applying religious law would impair the legal rights of observant Jews and other religious groups. Can Texas do that? The outcome of the Oklahoma case will likely answer this question, and so far, it looks like such laws will be viewed as unconstitutional.
As discussed in the previous post, the U.S. Supreme Court held in Goldman v. Weinberger that an Air Force regulation prohibiting personnel from wearing headgear indoors did not violate the First Amendment, even though Jewish men would be barred from wearing their yarmulkes. Even before the Supreme Court’s decision, a number of congressman succeeded in passing a law that required a group formed by the Secretary of Defense “to examine ways to minimize the potential conflict between the interests of members of the Armed Forces in abiding by their religious tenets and the military interest in maintaining discipline” (Department of Defense Authorization Act, 1985, Pub. L. No. 98-525 § 554(a), 98 Stat. 2492, 2532 (1984)). However, the study group advised against exceptions to uniform standards except for religious apparel worn in individual living spaces or by chaplains when required by their faiths.
Less than two weeks after the Supreme Court decided Goldman in 1986, several congressmen introduced legislation that would allow members of the armed forces to wear certain religious apparel. Both in the Senate and in the House, the proposed legislation allowed religious apparel that was neat, conservative and unobtrusive. The proponents insisted that religious headgear, such as the yarmulke, would not disrupt military effectiveness. Opponents argued that making such an exception would be adverse to military uniformity and morale, it would be difficult to apply, and it would lead to much litigation over the appropriate standards. Although it failed to pass in 1987, the legislation was included as part of the National Defense Authorization Act for Fiscal Years 1988 and 1989.
The current law is codified at 10 U.S.C. § 774. It allows a member of the armed forces to wear an item of religious apparel while in uniform, unless the Secretary concerned determines that it would interfere with the performance of military duties, or that it is not neat and conservative.
For an analysis of the Goldman case and subsequent congressional response, see Dwight H. Sullivan, The Congressional Response to Goldman v. Weinberger, 121 Military L. Rev. 125 (1988), available here. Incidentally, Former Representative Stephen J. Solarz, who was one of the leading advocates of the religious apparel amendment died recently of cancer. For an article summarizing his efforts on this front, click here.
Perhaps the most notable American court decision involving the yarmulke is Goldman v. Weinberger, 475 U.S. 503 (1986). In Goldman, the U.S. Supreme Court was faced with the question of whether an Air Force policy prohibiting personnel from wearing headgear indoors violated the Free Exercise Clause of the First Amendment to the U.S. Constitution, because it prohibited the wearing of a yarmulke. This post will summarize the Goldman decision, and a future post will discuss the legislative response and current law.
Facts: Simcha Goldman entered the Air Force as a commissioned officer and served as a clinical psychologist. For several years he wore a yarmulke without any incident. However, after testifying at a court martial wearing his yarmulke, one of the attorneys complained about Goldman’s violation of an Air Force regulation that prohibited personnel from wearing headgear indoors. After refusing to comply with the regulation, Goldman was reprimanded and subsequently brought suit in U.S. District Court, arguing that the regulation violated his constitutional right to exercise his religious beliefs.
Analysis: The Court started by stating that in First Amendment cases involving the military, it “must give great deference to the professional judgment of military authorities concerning the relative importance of a particular military interest.” This is so, because in order “to accomplish its mission the military must foster instinctive obedience, unity, commitment, and esprit de corps.” The Air Force had determined that uniformity in dress promotes discipline and unity. The Court noted that the line drawn between visible religious apparel (which the Air Force prohibited) and apparel that was not visible (which it allowed) was reasonable and evenhanded.
Holding: The Air Force regulation prohibiting the wearing of headgear indoors does not violate the First Amendment.
It is interesting to observe that the opposing interests involved here are in fact rooted in common notions. The Supreme Court in Goldman noted that “[t]he essence of military service ‘is the subordination of the desires and interests of the individual to the needs of the service.'” The idea that uniform requirements promote the subordination of personal desires and interests is one of the concepts underlying the practice of Jewish men covering their heads. As discussed in an earlier post, the goal of the yarmulke is to humble man before God and discourage him from sinning. Thus, although conflicting on the surface, the military’s interest in requiring standardized dress and the halachic requirement of covering one’s head have a similar premise.