Leaked Memo On Circumcision From Haredi Groups' Lawyers

A leaked research memo from the lawyers representing the haredi groups suing New York City over the metzitzah b'peh (MBP) informed consent requirement discusses possible legal strageties to get the informed consent requirement lifted.

What follows is allegedly the text of a research memo from the lawyers representing the haredi groups suing New York City over the informed consent requirement for metzitzah b'peh (MBP), the direct mouth-to-bleeding-penis sucking done by haredi mohels after cutting off the baby's foreskin.

MBP has transmitted several different illnesses to babies, from syphilis to herpes, killing and maiming thousands over the years. In the last decade, even with limited reporting requirements in New York City at least 17 babies have gotten herpes this way. Two died, at least one baby has severe brain damage and all the surviving babies will have – and transmit – herpes for the rest of their lives.

Email addresses have been redacted:

Robert [Simins]
Sent: Monday, August 27, 2012 10:38 PM
To: R' Moshe Dovid Niederman; R' Avrohom
Shloime Blum; Rabbi Simcha Klor
Subject: Fwd: Memo

Begin forwarded message:

From: Shay Dvoretzky [Jones Day]
Date: August 27, 2012 9:09:41 PM EDT
To: Robert Simins
Subject:
Memo

Rob,

Here's the memo discussing
the research questions we identified.  This doesn't
purport to reach conclusions about the likelihood of success
or the pros and cons of next steps; rather, it outlines the
sorts of arguments we might make and the likely responses
and obstacles in a more objective way than the comment
letter, which was an advocacy piece.  Once you've
digested this, I think we should talk about how it informs
potential next steps.  Let me know when you'd like
to talk.

Thanks.

Shay

M E M O R A N D U M

 

TO: Robert Simins

 

FROM: Shay Dvoretzky

Yaakov Roth

David Raimer

 

DATE: August 24, 2012

 

RE: Additional Research Tasks for Potential Metzitza B’Peh Litigation Against New York City Department of Health & Mental Hygiene

 

 

Below, we summarize our research into the four issues set forth in our memorandum of August 14, 2012, and explain the significance of our findings on the strength of a potential suit challenging the New York City Department of Health & Mental Hygiene’s anticipated new regulation of metzitza b’peh (“MBP”).

When assessing the validity of a statue, courts employ various levels of scrutiny. The “most demanding test known to constitutional law”—so-called strict scrutiny—requires the government to demonstrate that it aims to further “a compelling interest” and that it has adopted “the least restrictive means of achieving that interest.” City of Boerne v. Flores, 521 U.S. 507, 534 (1997). At the other end of the spectrum is the highly deferential rational basis test, where the government need only show that the law is rationally related to a legitimate government interest. Williamson v. Lee Optical Co., 348 U.S. 483, 488 (1955) (“It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it.”).

The level of scrutiny applied is often outcome-determinative, regardless of whether the relief sought is a preliminary or permanent injunction. Here, a challenge subject to rational basis review would have little likelihood of success. Victory likely depends on the application of strict scrutiny. Even then, however, given the competing interests at stake, § 181.21 may be able to survive. Assuming the government’s interest in public health is compelling, we would have to show that § 181.21 is not the least restrictive means of achieving the City’s goals. We could attempt to do so by, for example, arguing that rather than conscripting mohelim into its service, New York could instead implement a “broader educational campaign” regarding any risks associated with MBP. Entertainment Software Ass’n v. Blagojevich, 469 F.3d 641, 652 (7th Cir. 2006). Further research on that question would have to be conducted; for now, this memorandum outlines various theories by which we would seek to have a court subject § 181.21 to strict scrutiny. I. The Free Exercise Claim

A. Neutrality, General Applicability, and the Standard of Scrutiny

1. Supreme Court Authority

Until the Supreme Court’s decision in to Employment Division v. Smith, 494 U.S. 872 (1990), a substantial burden on religious exercise was permissible only if it could survive strict scrutiny. See, e.g., Sherbert v. Verner, 374 U.S. 398 (1963). In Smith, however, the Court applied rational basis review to deny members of the Native American church an exemption for religious reasons from laws that generally banned the use of the hallucinogenic drug peyote. In doing so, the Court established that “neutral [laws] of general applicability” do not run afoul of the Free Exercise Clause of the First Amendment, even if they have the “incidental effect of burdening a particular religious practice.” Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993); see also Smith, 494 U.S. at 879–80 (same). By contrast, a “law failing to satisfy these requirements” of neutrality and general applicability remains subject to strict scrutiny; it “must be justified by a compelling government interest and must be narrowly tailored to advance that interest.” Lukumi, 508 U.S. at 531.

In light of these varying standards of scrutiny, the viability of a Free Exercise claim turns heavily on a party’s ability to demonstrate that the challenged rule is not neutral or generally applicable. If such a showing can be made, strict scrutiny applies; if not, the challenge is subject to rational basis review. In the comment letter, we maintained that the proposed regulation lacked the requisite neutrality because it targeted conduct that, as a practical matter, is exclusively religious in nature; that is, MBP is exclusively a religious ritual, and MBP is the only activity targeted by the regulation.

There is at least some question whether such “targeting” suffices to establish that a law is not neutral or generally applicable. At the crux of the issue is the scope of the Supreme Court’s holding in Lukumi. In that case, the Supreme Court struck down a series of city ordinances that effectively prohibited members of the Santeria religion from engaging in ritual animal sacrifice. The regulations at issue were drafted in such a way that they singled out Santeria practitioners for disfavored treatment; they permitted the killing of animals for a variety of nonreligious reasons, but refused to allow that conduct when it was done on religious grounds.

Thus, after Lukumi, it is clear that, “[a]t a minimum, the protections of the Free Exercise Clause pertain if the law at issue . . . regulates or prohibits conduct because it is undertaken for religious reasons.” 508 U.S. at 532. In other words, the government cannot treat conduct engaged in for religious reasons differently than identical conduct engaged in for secular reasons. Thus, the government could not “ban the casting of ‘statutes that are to be used for worship purposes,’” while at the same time permitting the casting of statutes for nonreligious display. Smith, 494 U.S. at 877–78. This sort of discrimination was evident in Lukumi, where “few if any killings of animals [we]re prohibited other than Santeria sacrifice.” Lukumi, 508 U.S. at 536. The government could not prohibit killings done for religious reasons while permitting “killings that [we]re no more necessary or humane in almost all other circumstances.” Id. Viewed in this light, Lukumi could be read narrowly to mean that government action triggers strict scrutiny only where it improperly attempts to regulate an individual’s reasons for engaging in a particular action. See, e.g., id. at 533 (“[I]f the object of a law is to infringe upon or restrict practices because of their religious motivation, the law is not neutral . . . .” (emphasis added)); id. at 524 (“[T]he secular ends asserted in defense of the laws were pursued only with respect to conduct motivated by religious beliefs.” (emphasis added)); id. at 538 (stating that the law at issue sought to “suppress . . . conduct because of its religious motivation” (emphasis added)).¹

Here, this narrow reading of Lukumi could severely prejudice any efforts to obtain relief. On its face, the proposed regulation applies to any “circumcision that involves direct oral suction on a child under one year of age.” § 181.21(b). Thus, it would regulate circumcisions involving direct oral suction whether or not they were religiously motivated. While the burden of this regulation would certainly fall essentially exclusively on those who practice MBP for religious reasons, the Department could respond that they were not targeted because of their religious beliefs. Rather, the Department would assert that it regulated a particular practice for health and safety reasons; the fact that this practice occurs primarily in the context of a religious ritual would be of no moment. After all, “adverse impact will not always lead to a finding of impermissible targeting.” Lukumi, 508 U.S. at 535. Courts have held that the “Free Exercise Clause is not violated even though a group motivated by religious reasons may be more likely to engage in the proscribed conduct.” Stormans, Inc. v. Selecky, 586 F.3d 1109 (9th Cir. 2009) (citing cases). For example, a rule that required pharmacists to distribute the so-called “morning after pill” was found to be neutral despite the fact that it would “disproportionately” impact “pharmacists with religious objections to Plan B.” Id.; see also St. John’s United Church of Christ, 502 F.3d at 632–34 (concluding that a law was neutral, though as a practical matter, the plaintiff was “the only cemetery in the State of Illinois” to which the law applied); cf. Reynolds v. United States, 98 U.S. 145, 166–67 (1878) (upholding a ban on polygamy without discussing fact that Mormons would be disproportionately impacted). At least one commentator (who is generally sympathetic to free exercise challenges) has concluded that that under current jurisprudence, it is “likely” that “many courts” would adopt this reading of the Free Exercise Clause. Mark L. Reinzi, Smith, Stormans, and the Future of Free Exercise: Applying the Free Exercise Clause to Targeted Laws of General Applicability, 10 Engage: J. Federalist Soc’y Prac. Groups 143, 143 (2009). In other words, courts may be inclined to conclude that the Free Exercise Clause only applies where a legislature targets conduct because it is religiously motivated; it would have no application “to situations”—such as the one at issue—“where [a] legislature deliberately targets a religious practice, but does so for neutral reasons and is willing to extend the ban to people who happen to engage in the same practice for non-religious reasons.” Id.

Nevertheless, there is language in Lukumi suggesting that it stands for a proposition beyond this “minimum.” 508 U.S. at 532. Namely, Lukumi could be read to indicate that the government may not single out for adverse treatment conduct that is almost exclusively engaged in for religious reasons. See id. at 534 (stating that the government cannot “target[] religious conduct for distinctive treatment”); id. at 535 (noting that “almost the only conduct [regulated] is the religious exercise of Santeria church members”); id. at 536 (“Again, the burden of the ordinance, in practical terms, falls on Santeria adherents but almost no others.”). On this reading, regulation of conduct because it is undertaken for religious reasons would be sufficient, but not necessary, for finding that a law was not neutral or generally applicable. The mere fact that the law applies almost exclusively to such conduct would suffice to trigger strict scrutiny. Justice Scalia, at least, made clear in his concurrence in Lukumi that he would adopt this broader approach to the issue. See Lukumi, 508 U.S. at 559 (Scalia, J., concurring) (“Nor, in my view, does it matter that a legislature consists entirely of the purehearted, if the law it enacts in fact singles out a religious practice for special burdens. Had the ordinances here been passed with no motive on the part of any councilman except the ardent desire to prevent cruelty to animals (as might in fact have been the case), they would nonetheless be invalid.”). And significantly, only two members of the Court signed on to the portion of the opinion that analyzed the legislators’ motives for enacting the ordinances. See Lukumi, 508 U.S. at 540–42 (opinion of Kennedy, J.) (joined by Justice Stevens). Had the Court wished to be clear that the scope of Lukimi’s holding extended only to laws directed at conduct because it was undertaken for religious reasons, one would assume that more Justices would have joined the portion of the opinion expressly analyzing motive.

Several courts have opined—albeit mostly in non-binding dicta—that this broader reading of Lukumi is the proper understanding of the Free Exercise Clause. Even in Smith, the Court stated that a legislature would impinge on the free exercise of religion not only “if it sought to ban . . . acts or abstentions . . . when they are engaged in for religious reasons,” but also where they regulated such acts “because of the religious belief they display.” Smith, 494 U.S. at 877. Thus, “[i]t would doubtless be unconstitutional . . . to prohibit bowing down before a golden calf.” Smith, 494 U.S. at 877–78. Of course, individuals could bow before a golden calf for any number of reasons, but the obvious fact that they would overwhelmingly do so as a sign of religious belief was enough for the Court to deem a prohibition on such conduct “doubtless[ly]” impermissible. Id. Likewise, the Seventh Circuit has observed that “[a] regulation that prohibited all private groups from displaying nine-pronged candelabra may be facially neutral, but it would still be unconstitutionally discriminatory against Jewish displays.” Grossbaum v. Indianapolis-Marion Cnty. Bldg. Auth., 100 F.3d 1287, 1298 n.19 (7th Cir. 1996). There, “[t]he lack of general applicability is obvious not from the government’s motives but from the narrowness of the regulation’s design and its hugely disproportionate effect on Jewish speech.” Id.; see also Falwell v. Miller, 203 F. Supp. 2d 624, 631 n.6 (W.D. Va. 2002) (“Lukumi invalidated the anti-animal sacrifice ordinances, in part, because the laws prohibited conduct resulting from religious belief . . . . Although in this case it is unclear whether the Plaintiffs’ desire to incorporate constitutes religiously-motivated conduct, [the] incorporation prohibition nevertheless renders them unequal to others on account of their religious status. That disparate treatment constitutes enough to trigger the protections of the Free Exercise Clause.”).

Close textual analysis of Smith supports this reading. When discussing the criminal law at issue—which prohibited, among other things, the use of the hallucinogenic drug, peyote—the Smith Court noted that the statute was not “specifically directed at [respondents’] religious practice.” Smith, 494 U.S. at 877. In other words, there was clearly no “targeting” at issue. The ingestion of peyote for religious reasons was a miniscule fraction of the conduct regulated by the statute. The burden on religious exercise, therefore, was merely the “incidental effect” of a general public safety regulation. Id. One could thus argue that laws “specifically directed” at religious conduct—those that apply almost exclusively to a particular religious practice and have far more than an incidental effect on that practice—are subject to strict scrutiny, even though the regulation does not distinguish between religiously motivated conduct and secularly motivated conduct. See Rienzi, supra, at 145–46 (“Smith should not be read to excuse such targeted laws from free exercise analysis. To the contrary, Smith’s emphasis on the lack of targeting, and on the incidental nature of the burden to a wholly unrelated purpose, makes clear that targeted laws should still receive strict scrutiny.”)²

2. Lower Court Authority

In addition to the assessing the nature of the claim at issue, we also looked into analogous cases decided by lower courts.

There are variety of ways in which lower courts have assessed whether a rule has impermissibly singled out religion for disfavored treatment. At the most basic level, courts will review the text of a statute to ensure that it does not discriminate on its face. “A law lacks facial neutrality if it refers to a religious practice without a secular meeting discernible from the language or context.” Lukumi, 508 U.S. at 533. Thus, courts have found that laws lack facial neutrality where they preclude the “incorporation [of] any church or religious denomination,” Falwell v. Miller, 203 F. Supp. 2d 624, 629–30 (W.D. Va. 2002), bar the use of “Sharia [Islamic] law,” Awad v. Ziriax, 754 F. Supp. 2d 1298, 1307 (W.D. Okla. 2010), ban “‘religious worship services’” from school property available for other gatherings, Bronx Household of Faith v. Bd. of Educ. of the City of N.Y., No. 01 Civ. 8598, 2012 BL 44447, at *7 (S.D.N.Y. Feb. 24, 2012); or “uniformly ba[n] all religious practice” on the part of day care providers for Army families, Hartmann v. Stone, 68 F.3d 973, 978 (6th Cir. 1995). But see Bronx Household of Faith v. Cmty. Sch. Dist. No. 10, 127 F.3d 207 (2d Cir. 1997) (concluding that a prior ordinance barring “religious services” from being held on school grounds was neutral and generally applicable, reasoning that it did not “bar any particular religious practice” because the “members of the Church here are free to practice their religion, albeit in a [separate] location”). As noted in the comment letter, there are arguments to be made that the proposed regulation similarly discriminates against religion on its face. See Comment Letter at 4.

Even if we are unable to show that § 181.21 is facially discriminatory, “[o]fficial action that targets religious conduct for distinctive treatment cannot be shielded by mere compliance with the requirement of facial neutrality.” Lukumi, 508 U.S. at 534. Rather, “the effect of the law in its real operation” must also be analyzed. The Second Circuit recently engaged in this practical inquiry in Commack Self.-Service Kosher Meats, Inc. v. Hooker (“Commack II”), 680 F.3d 194 (2d Cir. 2012). At issue in that case was a New York state law that “imposed requirements on sellers and manufacturers that market their food products as ‘kosher’ to label those foods as kosher and to identify the individuals certifying their kosher nature.” Id. at 201. While plaintiffs conceded that the law was facially neutral, they maintained that in its practical effect it discriminated against their religious practices. Id. at 211. The court explained that to establish that such a “religious gerrymander[]” took place, the plaintiffs would have to “‘show the absence of a neutral, secular basis for the lines the government has drawn.’” Id. (quoting Gillette v. United States, 401 U.S. 437, 452 (1971)). To that end, the court evaluated the “‘historical background of the decision under challenge, the specific series of events leading to the enactment or official policy in question, and the legislative or administrative history, including contemporaneous statements made by members of the decision-making body.’” Id. (quoting Lukumi 508 U.S. at 540). That analysis led the court to conclude that “nothing in the text or legislative history of the amended Kosher Act demonstrates that the object of this Act was to infringe upon or restrict practices because of their religious motivation.” Id. (internal quotation marks and citation omitted).

Ultimately, Commack II could prove a significant obstacle to a successful challenge to § 181.21 Most notably, the Second Circuit focused on whether the statute at issue discriminated against conduct “because of” its religious motivation—precisely the reading of Lukumi that we wish to avoid. Moreover, to establish the sort of religious targeting that we would allege, the court indicated a plaintiff would have to show an absence of any neutral grounds for the regulation. Here, where the government may be able to establish a public health and safety justification for its actions, such a showing may be difficult.

That said, the case may be distinguishable. The court in Commack II was careful to note that “Jewish consumers reportedly now make up less than thirty percent of the consumers of kosher food.” Id. (internal quotation marks and citation omitted). The percentage of Jews impacted by § 181.21 would be significantly higher. Moreover, we may benefit from the fact that the Second Circuit required analysis of a regulation’s legislative history and context. As discussed in the comment letter, unlike the situation in Commack II, the legislative history here may be favorable to our position. See Comment Letter at 4. Just as the regulations in Lukumi were “clearly enacted in response to a particular church practicing a religion which required animal sacrifice,” id., we may be able to show that § 181.21 was similarly enacted “in response” to a particular religious practice.

The Seventh Circuit’s decision in St. John’s United Church of Christ v. City of Chicago, 502 F.3d 616 (7th Cir. 2007), may also be problematic. There, the Seventh Circuit concluded that a law that had the practical effect of burdening only one religious cemetery was nevertheless neutral and generally applicable. At issue was a law that removed the protections of the Illinois Religious Freedom Restoration Act—a statute that afforded religious entities greater protection than they would otherwise receive under the U.S. Constitution—from cemeteries impacted by the City of Chicago’s efforts to expand O’Hare Airport. Id. at 632. As an initial matter, the court concluded that the fact that the statute referred to cemeteries did not make it facially discriminatory, reasoning that “[s]ome cemeteries are affiliated with religious sects, others are not.” Id. The court went on to assess whether the law “embodie[d] a more subtle or masked hostility to religion” by evaluating the legislative history of the relevant act “in its entirety,” rather than the specific statutory provision challenged by the plaintiff. Id. at 633. In doing so, the court concluded that the act “was designed to remove any and all state-law based impediments to the O’Hare expansion project,” and did not specifically target the legal rights of religious entities. Id. The court went on to reason that the fact that St. John’s was the only cemetery affected actually cut against a finding of discrimination: “the fact that the legislation leaves other religious cemeteries untouched . . . reinforces the proposition that the legislature had the nondiscriminatory purpose of clearing all land needed for O’Hare’s proposed expansion.” Id. at 634.

While only persuasive authority in the Second Circuit, this case, too, cuts against our arguments. Most significantly, the government may argue that even assuming § 181.21 has the practical effect of singling out religious conduct for disfavored treatment, it is no different than the law at issue in St. John’s. The case could nonetheless be distinguished. Because § 181.21 would apply to all conduct within the City’s jurisdiction, the government could not argue that its it left similar practices “untouched.” Moreover, § 181.21 more directly targets a religious ritual, whereas the statute at issue in St John’s affected a religious institution engaged in a practice (burial) that is hardly exclusively religious.

* * *

For the reasons discussed above, while we have colorable arguments that § 181.21, if enacted, should be subject to strict scrutiny, it is by no means certain that those arguments would prevail. A plausible reading of Lukumi indicates that for strict scrutiny to apply, the government must treat religiously motivated conduct differently than secularly motivated identical conduct. Section 181.21, however, would apply regardless of the motivation of the actor. While some case law—and a common-sense reading of the First Amendment—support our theory that the government may not single out for adverse treatment conduct that is almost exclusively engaged in for religious reasons, few courts have adopted that reasoning.

B. The Additional Obstacle of Substantiality

In addition to the dispute over the proper standard of scrutiny given that § 181.21 singles out MBP, a religious practice, but does not appear to do so because MBP is a religious practice, we have identified an additional potential barrier to relief on a free exercise claim. As explained below, at least some courts have held that the protections of the Free Exercise Clause are not triggered unless the statute or regulation at issue imposes a “substantial” burden on religious exercise.

Neither Smith nor Lukumi directly employs a substantial burden test, and several circuits have concluded that such a showing is not necessary. See World Outreach Conference Ctr. v. City of Chicago, 591 F.3d 531, 534 (7th Cir. 2009); Tenafly Eruv Ass’n, 309 F.3d at 170; Hartmann, 68 F.3d at 979 n.3; see also Locke, 540 U.S. at 731 (Scalia, J., dissenting) (arguing that if a law is not neutral or generally applicable, “[t]he indignity . . . is so profound that the concrete harm produced can never be dismissed as insubstantial”). However, the Second Circuit, among others, has continued to use the language of substantial burden in some free exercise cases. See, e.g., Fifth Ave. Presbyterian Church v. City of New York, 293 F.3d 570, 574 (2d Cir. 2002) (“Government enforcement of laws or policies that substantially burden the exercise of sincerely held religious beliefs is subject to strict scrutiny.”).

The “substantial burden” threshold may pose a problem for a free exercise challenge to § 181.21. The ordinance only involves disclosure—not a direct prohibition of any conduct—and so the government may argue that any burden imposed is not substantial. The Supreme Court itself has indicated that laws that do not “make a religious practice itself unlawful” are less likely to trigger the protections of the Free Exercise Clause. See Braunfeld v. Brown, 366 U.S. 599, 605 (1961) According to the Court, “[t]o strike down, without the most critical scrutiny, legislation which imposes only an indirect burden on the exercise of religion, i.e., legislation which does not make unlawful the religious practice itself, would radically restrict the operating latitude of the legislature.” Id. The Court went on to clarify that it did not mean that “all legislation regulating conduct which imposes solely an indirect burden on the observance of religion” was permissible. Id. at 607 (noting that if “the purpose or effect of a law is to impede the observance of one or all religions or is to discriminate invidiously between religions, that law is constitutionally invalid even though the burden may be characterized as being only indirect”). But the fact remains that it is more difficult to make a showing of substantial burden when the law at issue does not prohibit conduct.

Thus, to the extent that a substantial burden must be shown, this could defeat the claim at the outset. We could, of course, maintain that the disclosure requirements do impose a substantial burden on the exercise of religion. Not only would they likely have the effect of discouraging parents from seeking out MBP practitioners, but they would also require mohelim to effectively denigrate their own religious practices. Further research into this issue is warranted.

II. The Free Speech Claim

As discussed in the Comment Letter, the Department’s regulation is also subject to challenge under the Free Speech Clause of the First Amendment. That is because the regulation requires mohelim to provide disclosure warnings before performing MBP. This argument may provide a stronger basis for challenging the regulation than the Free Exercise Clause.

As with the Free Exercise Clause, the determinative issue—at least with respect to our ability to obtain preliminary relief—is the proper level of scrutiny to be applied to the regulation. Generally, compelled speech is subject to strict scrutiny, which is very advantageous. See Riley v. National Federation of the Blind of North Carolina, 487 U.S. 781, 798 (1988). However, the Department could argue that a lower level of scrutiny is appropriate here because § 181.21 targets only “professional speech.” While the Comment Letter briefly addressed that potential argument, we have now conducted additional research and analysis into its viability. In short, the outer boundaries of the “professional speech” doctrine are not clearly delineated by the cases. We have strong arguments that the doctrine should not apply here, and its application in this context would be relatively novel, but such a holding is nonetheless possible.

While “[b]eing a member of a regulated profession does not … result in a surrender of First Amendment rights,” Conant v. Walters, 309 F.3d 629, 638 (9th Cir. 2002), the government does have some power to regulate speech as part of its power to regulate licensed professions. This power takes two forms. First, the government may require that professionals obtain certain licenses before they may engage in certain types of speech. For example, accountants must be licensed in order to describe their work as an “audit.” Accountant’s Soc’y of Va. v. Bowman, 860 F.2d 602 (1988). And the government can require lawyers to obtain licenses, even though “a lawyer’s work is almost entirely devoted to the sort of communicative acts that, viewed in isolation, fall within the First Amendment’s protection.” Lowe v. SEC, 472 U.S. 181, 228 (1985) (White, J., concurring in the judgment). Second, the government may regulate the speech of professionals after they obtain licenses. For example, doctors can be required to give patients certain information, and lawyers can be sanctioned for engaging in malpractice by providing incompetent advice to clients. The Supreme Court accordingly has upheld regulations that require doctors to make certain disclosures before performing an abortion. Planned Parenthood of Se. Pa. v. Casey, 500 U.S. 833, 884 (1992). The Court explained that the regulations did implicate the doctors’ First Amendment rights, “but only as part of the practice of medicine, subject to reasonable licensing and regulation by the State.” Id. (Indeed, most of the cases applying the professional-speech doctrine involve abortion services by doctors. See, e.g., Tex. Med. Providers Performing Abortion Servs. v. Lakey, 667 F.3d 570, 576-77 (5th Cir. 2012); Planned Parenthood Minn. v. Rounds, __ F.3d __ (8th Cir. July 24, 2012).)

Viewing these two related doctrines together sheds light on their rationale and scope. Certain types of speech—like the provision of legal or investment advice, for example—are so closely intertwined with the practice of a profession that the regulation of the latter necessarily implies the regulation of the former. If the government is entitled to require lawyers to obtain licenses, and thus to prevent unlicensed individuals from engaging in “professional speech” inextricably linked with the practice of law, it must also be entitled to sanction licensed lawyers for incompetent “professional speech,” such as failure to provide certain advice or the provision of advice that constitutes malpractice. The broader professional-speech doctrine is premised, on this view, on the proposition that “[t]he power of government to regulate the professions is not lost whenever the practice of a profession entails speech.” Lowe, 472 U.S. at 228. This explanation of the doctrine suggests potential arguments for why § 181.21 cannot be justified thereunder.

A. Most broadly, we could contend that the professional-speech doctrine permits the regulation (and compulsion) of speech only in the context of licensed professions. This accords with the Supreme Court’s statement in Casey that the restriction there was permissible because it fell within “the practice of medicine, subject to reasonable licensing and regulation by the State.” 500 U.S. at 884. It also offers a limiting principle for the doctrine: The government may regulate speech when it is inextricably tied to the practice of a profession that the government licenses and regulates, but cannot force people to propagate the government’s message outside the context of licensed professionals. On this approach, the professional’s engaging in the compelled speech is effectively a condition on his continued licensing. But if there is no licensing, then there is no leverage for the condition.³

Two recent district court cases support this approach to the professional-speech doctrine. Each involved a local regulation requiring pregnancy support centers to make certain disclosures (essentially about whether the center offers abortions). In each case, the local government tried to defend its regulation by reference to Casey and the professional-speech doctrine. But neither court accepted the argument. In Evergreen Association, Inc. v. City of New York, 801 F. Supp. 2d 197 (S.D.N.Y. 2011), the court ruled that Casey did not apply because the pregnancy center “do[es] not engage in the practice of medicine.” Id. at 207. This was so even though the center did offer ultrasounds; no license was required, and that was the end of the inquiry. Id. As the court said: “Ironically, Defendants’ argument that Plaintiffs engage in professional speech might be more persuasive if the City licensed ultrasound technicians. But because no such license is required, this Court cannot evaluate Local Law 17 through the lens of lowered scrutiny accorded to professional speech.” Id. Similarly, in Centro Tepeyac v. Montgomery County, 779 F. Supp. 2d 456 (D. Md. 2011), the district court in applying strict scrutiny rested in part on the fact that the pregnancy center was “not a physician offering abortion services.” Id. at 466.

Notably, both Evergreen and Tepeyac are on appeal before their respective Circuits (the Second and Fourth, respectively). While Tepeyac was initially affirmed by a Fourth Circuit panel, the entire court voted to rehear the case en banc, and so the favorable panel decision (cited in our Comment Letter) has been vacated. The Second Circuit’s decision in Evergreen, which will probably not be issued for several months, will be crucial to our ultimate chances of success on a Free Speech Clause challenge to the Department’s regulation, because the court is likely to weigh in on the scope and application of the professional-speech doctrine.

If, as these district courts suggested, the power to regulate professional speech hinges on the licensing of the profession at issue, then we should have no difficulty defeating an argument that § 181.21 can be upheld under the professional-speech doctrine. Mohelim are not licensed by the City or any other government body. Although a circumcision can be a medical procedure, it is not always a medical procedure. Indeed, the very title of the Department’s regulation confirms this, referring to consent for “non-medical circumcision.” Thus, there is no license here that can be made conditional on the compelled disclosures about the risks of MBP.

B. Alternatively, perhaps the professional-speech doctrine is not dependenton the government’s actual establishment of a licensing scheme for the profession at issue, but only on the government’s capacity to establish such a scheme. In other words, arguably the government can regulate the exercise of professions (including professional speech) without regulating entry into the profession in the first place. This makes some sense. If the government could require all barbers to obtain licenses (and then make those licenses conditional on compliance with a rule that requires the barbers to warn all clients of the risks of using hair spray), then arguably it could simply require that anyone engaging in the profession of cutting hair issue such warnings. The critical question would then be whether the regulated individual is a “professional” at all, of the type potentially subject to regulation and licensing by the government.

The recent Evergreen and Tepeyac cases offer support for this approach too. In both cases, the courts ruled that the pregnancy centers were not engaged in professional speech at all—not only because they were unlicensed (as discussed above), but also because they were not practicing a profession. See Evergreen, 801 F. Supp. 2d at 207 (noting that pregnancy centers do not “employ any specialized expertise or professional judgment in service of their clients’ individual needs and circumstances”); Tepeyac, 779 F. Supp. 2d at 467 (reasoning that centers are not providing “tailor[ed] advice” and do not have “quasi-fiduciary relationship” to clients); see also Taucher v. Born, 53 F. Supp. 2d 464 (D.D.C. 1999) (holding that publication of commodity trading advice was not professional speech and therefore that plaintiffs could not be required to obtain licenses before publishing). Both cases relied, for the definition of a “professional” and the distinction between professional speech and regular speech, on Justice White’s concurrence in Lowe. That opinion took the position that “[o]ne who takes the affairs of a client personally in hand and purports to exercise judgment on behalf of the client in the light of the client’s individual needs and circumstances is properly viewed as engaging in the practice of a profession.” 472 U.S. at 232. By contrast, when “the personal nexus between professional and client does not exist, and a speaker does not purport to be exercising judgment on behalf of any particular individual … , government regulation ceases to function as legitimate regulation of professional practice” and becomes “regulation of speaking or publishing as such.” Id.

Whether a mohel is a “professional” under this test is debatable. On the one hand, like a doctor, the mohel has a direct relationship with a particular client and does—in performing the circumcision—“exercise judgment” on the client’s behalf. Id. On the other hand, the task at hand is far more discrete and standard; there would not generally be a discussion of options or strategies, as one might expect to occur with a doctor or lawyer. And it might be a stretch to refer to the mohel-infant relationship as “quasi-fiduciary.” Tepeyac, 779 F. Supp. 2d at 467.

The stronger argument is not that performing circumcisions is not a “professional” role, but rather that doing so in the religious context removes the relationship from the sphere of professional relationships that the government is entitled to regulate. It would be unthinkable for the government to attempt to license priests, rabbis, or imams. Such a practice would raise the most serious Establishment Clause concerns. See Aguilar v. Felton, 473 U.S. 402, 413 (1985) (“[P]ervasive monitoring by public authorities … infringes precisely those Establishment Clause values at the root of the prohibition of excessive entanglement.”); cf. Cantwell v. Connecticut, 310 U.S. 296, 303 (1940) (“[T]o condition the solicitation of aid for the perpetuation of religious views or systems upon a license, the grant of which rests in the exercise of a determination by state authority as to what is a religious cause, is to lay a forbidden burden upon the exercise of liberty protected by the Constitution.”). Mohelim, because they practice a religious ritual, are analogous. Cf. Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S. Ct. 694 (2012) (Thomas, J., concurring) (directing courts to “defer to a religious organization’s good-faith understanding of who qualifies as its minister”); id. (Alito, J., concurring)(noting that the constitutionally based “ministerial exception” to anti-discrimination laws should apply to anyone “who leads a religious organization, conducts worship services or important religious ceremonies or rituals, or serves as a messenger or teacher of its faith”). That is the key distinction between mohelim and other professionals—the latter can (and often are) comprehensively regulated by the government, but the former are entirely off-limits. And if the mohel’s practice of his “profession” is outside the scope of government regulation, then surely the government also lacks the power to regulate the mohel’s speech.

There are no cases discussing this issue. The professional-speech doctrine has been applied to doctors, lawyers, accountants, investment advisers, and even interior designers, but there have been no attempts to apply it to religious actors. But the argument is strong, and can proceed through hypotheticals. If the Department can force mohelim to make disclosures about the risks of MBP, then it could equally force imams to warn their congregants about the health risks of fasting during Ramadan, or force priests to warn parents about the health risks of baptizing their children. Together with the doctrinal and conceptual analysis above, this amounts to a fairly powerful argument that the professional-speech doctrine is inapplicable in this context, and therefore cannot be invoked to bypass the requirements of strict scrutiny.

In sum, we have a reasonably strong argument that the professional-speech doctrine does not apply here, both because mohelim are not licensed or regulated by the City and because they probably could not be licensed or regulated without running afoul of the Religious Clauses of the First Amendment. The Evergreen and Tepeyac cases—to the extent they are affirmed on appeal, at least—provide some support for our position, although their facts are obviously not identical to ours. A court could certainly reject our argument and adopt a broader view of the doctrine, reasoning that circumcisions are effectively medical procedures (whether so denominated or not) and that those who perform them are therefore subject to reasonable regulation, including as to their speech. But such a holding would be a novel extension of the current doctrine.

III. The Potential Establishment Clause Claim

Section 181.21 may also be subject to challenge on Establishment Clause grounds. The “clearest command” of that Clause “is that one religious denomination cannot be officially preferred over another.” Larson v. Valente, 456 U.S. 228, 244 (1982). “Whatever else the Establishment Clause may mean[,] . . . it certainly means at the very least that the government may not demonstrate a preference for one particular sect or creed.” County of Allegheny v. ACLU Greater Pittsburg Chapter, 492 U.S. 573, 605 (1989). Thus, the government cannot “‘pass laws which aid one religion’ or that ‘prefer one religion over another.’” Id. at 246 (quoting Everson v. Bd. of Educ., 330 U.S. 1, 15 (1947)). Neither can it “plac[e itself] in the position of deciding between competing religious views.” Petruska v. Gannon Univ., 462 F.3d 294, 311 (3d Cir. 2006); Colo. Christian Univ. v. Weaver, 534 F.3d 1245, 1250 (10th Cir. 2008) (noting that the government cannot make “intrusive judgments regarding contested questions of religious belief or practice”); cf. Smith, 494 U.S. at 877 (stating, in the context of the Free Exercise Clause, that “government may not “lend its power to one or the other side in controversies over religious authority or dogma”). Here, it could be argued that by enacting § 181.21, New York would be taking sides in an interfaith dispute between Jewish communities, favoring those that permit alternative methods of circumcision over those that regard MBP as the only legitimate way to complete circumcision.

Though much maligned, the three-pronged test for Establishment Clause violations articulated by the Supreme Court in Lemon v. Kurtzman, 403 U.S. 602, 614 (1971) remains the law. Under that test, (1) “the statute must have a secular legislative purpose”; (2) “its principal or primary effect must be one that neither advances nor inhibits religion”; and (3) it “must not foster ‘an excessive governmental entanglement with religion.’” Id. at 612–13 (citation omitted). In Commack Self-Service Kosher Meats, Inc. v. Weiss (“Commack I”), 294 F.3d 415 (2d Cir. 2002), the Second Circuit had occasion to apply this test to an earlier version of New York’s kosher laws discussed above. See supra Part I.A. Unlike their later iteration at issue in Commack II, the original kosher laws required products labeled and marketed as kosher to be prepared in accordance with Orthodox Jewish religious requirements. Commack I, 294 F.3d at 426–27. As relevant here, the Second Circuit concluded that these laws amounted to an excessive entanglement between government and religion and had the improper effect of both advancing and inhibiting religion. Id. at 425–31.

As to the excessive entanglement factor, the court concluded that the kosher laws were unconstitutional because “they (1) take sides in a religious matter, effectively discriminating in favor of the Orthodox Hebrew view of dietary requirements; [and] (2) require the State to take an official position on religious doctrine.” Id. at 425. The Court found it “indisputable that there are differences in opinion within Judaism regarding the dietary requirements of kashrut. . . . [B]ecause the challenged laws interpret ‘kosher’ as synonymous with the views of one branch, those of Orthodox Judaism, the State has effectively aligned itself with one side of an internal debate within Judaism. This it may not do.” Id. at 426.

With respect to the advancement factor, the court stated that the challenged laws unconstitutionally “have a primary effect that both advances religion, by preferring the dietary restrictions of Orthodox Judaism over those of other branches, and inhibits religion, by effectively prohibiting other branches from using the kosher label in accordance with their religious beliefs.” Id. at 430. In effect, “the State . . . selected the views of one branch of Judaism, thereby placing its imprimatur on the religious views of one to the exclusion of the others.” Id. This “confer[red] a substantial benefit on Orthodox Jews,” while at the same time “inhibit[ing]” the religious practices of “other branches of Judaism” by “prohibit[ing] [them] from using the kosher label in accordance with the dictates of their religious beliefs where their dietary requirements differ from those of Orthodox Judaism.” Id.

The case of Larson v. Valente, 456 U.S. 228, 244 (1982) is also illustrative. There, the Supreme Court struck down “a Minnesota statute imposing certain registration and reporting requirements upon only those religious organizations that solicit more than fifty percent of their funds from nonmembers.” Id. at 230. The court observed that such law impermissibly made “explicit and deliberate distinctions between different religious organizations.” Id. at 246 n.23. It effectively distinguished between “well-established churches that have achieved strong but not total financial support from their members, . . . and churches which are new and lacking in a constituency, or which, as a matter of policy, may favor public solicitation over general reliance on financial support from members.” Id. In determining “the principal effect” of the law was “to impose the registration and reporting requirements of the Act on some religious organizations but not on others,” the Court also looked to legislative history, which revealed that the statute was not designed to operate evenhandedly. Id. at 253–54. In fact, the legislature had taken pains to exclude certain denominations from the law, while appearing to intentionally target others. Id. at 254 (noting a redrafting when it appeared that the Catholic Church would be regulated and several statements indicating an intent to single out the Unification Church).

These cases suggest that we may be able to maintain that § 181.21 violates the Establishment Clause. As with kosher laws, it is ‘indisputable,” that “there are differences in opinion within Judaism” regarding circumcision rituals. Commack I, 294 F.3d at 426. We could argue that because § 181.21 applies only to circumcisions conducted in a way that is “synonymous with the views of one branch,” New York would have “effectively aligned itself with one side of an internal debate within Judaism.” Id. at 426. In doing so, at least implicitly, New York would have taken a position on a matter of religious doctrine. Moreover, the law would “have a primary effect that both advances religion, by preferring the [circumcision practices] of [some strains of] Judaism over those of other branches, and inhibits religion,” by imposing additional requirements on MBP practitioners. Id. at 430. These arguments would be bolstered by official city literature which appears to overtly take sides in a religious debate, “urging parents and mohelim to follow the religious authorities within the Jewish faith that approve different means of complying with the metzitzah requirement.” Comment Letter at 5 (internal quotation marks and citation omitted); cf. Larson, 456 U.S. at 354 (inquiring into legislative history).

The government may well respond that the matter at hand is distinguishable because § 181.21 does not involve facial entanglement with or discrimination among religious groups, while both Larson and Commack I, for example,involved the explicit regulation of religious entities or practices. For many of the same reasons discussed above, see supra Part I.B, the government could also maintain that because § 181.21 involves only a disclosure requirement, rather than a prohibition, any burden that it imposes is constitutionally insignificant. Larson, 456 U.S. at 253 (implying that “de minimis” harms may not trigger the Establishment Clause).

Moreover, government could argue that New York is not attempting to take sides in a religious dispute, but has simply enacted a generally applicable health and safety regulation. Though § 181.21 would apply almost exclusively to MBP-practitioners, that fact should not be determinative. When similar arguments were advanced against Sunday-closing laws—asserting that they effectively established a “Christian” day of rest—the Supreme Court explained that

the Establishment Clause does not ban federal or state regulation of conduct whose reason or effect merely happens to coincide or harmonize with the tenets of some or all religions. In many instances, the Congress or state legislatures conclude that the general welfare of society, wholly apart from any religious considerations, demands such regulation. Thus, for temporal purposes, murder is illegal. And the fact that this agrees with the dictates of the Judaeo-Christian religions while it may disagree with others does not invalidate the regulation. . . . The same could be said of theft, fraud, etc., because those offenses were also proscribed in the Decalogue.

McGowan v. Maryland, 366 U. S. 420, 442 (1961) (citations omitted) (upholding Sunday closing laws); cf. Zelman v. Simmons-Harris, 536 U.S. 639 (2002) (concluding that the Establishment Clause was not violated where an overwhelming percentage of school vouchers went to religious schools).

It is true that most Establishment Clause cases involve more direct government entanglement with religion than that at issue here. A typical excessive entanglement claim lies against some form of government determination about what does or does not constitute a particular religious practice or doctrine. See, e.g., Commack I, 294 F.3d at 426–27 (defining kosher); Colo. Christian Univ., 534 F.3d at 1263 (forcing the government to determine, among other things, whether board membership was “limited to persons of any particular religion”); Bronx Household of Faith, 2012 BL 44447, at *13–17 (requiring a determination of whether an activity constituted a “religious worship services”); see also Little v. Wuerl, 929 F.2d 994 (3d Cir. 1991) (“Despite [plaintiff's] protests that she is a Catholic, ‘of a particular religion,’ the determination of who fits into that category is for religious authorities and not for the government to decide.” (quoting Maguire v. Marquette Univ., 69 F. Supp. 1499, 1505–07 (E.D. Wis. 1986)). Though the claim is certainly more attenuated, if the government cannot define what constitutes ritual circumcision within the Jewish faith (which it certainly cannot), there is a colorable argument that it cannot place its finger on one side of that religious dispute.

Insofar as New York has a valid health and safety reason for enacting the ordinance, it arguably could be upheld for reasons similar to those articulated in McGowan. But the effect of the laws discussed in McGowan arguably sweeps more broadly than the regulation at issue here. While the Supreme Court reasoned that society as a whole benefits from the day of rest provided by Sunday closing laws or the safety and security offered by laws prohibiting murder or theft, here, a comparatively small number of individuals would feel the effects of § 181.21. This narrow targeting, coupled with the evidence discussed in the comment letter suggesting that the purpose and effect of § 181.21 was to discourage a particular religious practice may call into question the government’s asserted health and safety justification.

The level of scrutiny that should be applied to this issue is something of an open question. Typically, if a statute violates the Establishment Clause, it is “unconstitutional without further inquiry.” Colo. Christian Univ., 534 F.3d at 1266. Application of strict scrutiny is generally not required. See id. (“Establishment Clause violations . . . are usually flatly forbidden without reference to the strength of governmental purposes.”). However, “Larson v. Valente, alone among Establishment Clause cases, looked to whether the challenged law survives strict scrutiny rather than simply declaring it unconstitutional.” See id. (internal citations omitted); Larson, 456 U.S. at 246 (“[W]hen we are presented with a state law granting a denominational preference, our precedents demand that we treat the law as suspect and that we apply strict scrutiny in adjudging its constitutionality.”). This anomaly arguably creates a distinction between laws involving excessive entanglement between government and religion and laws that discriminate among religions. The former are “flatly forbidden without reference to the strength of governmental purposes,” while the latter are subject to strict scrutiny. Colo. Christian Univ., 534 F.3d at 1266; see also Corp. of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 339 (1987) (“Larson indicates that laws discriminating among religions are subject to strict scrutiny.”).

Here, a potential Establishment Clause claim would seem to fall into both camps. To the extent § 181.21 could be said to involve an impermissible determination of religious doctrine, it would seem to sound in excessive entanglement. The proposed regulation, however, could also be said to discriminate among religions. Regardless, the Second Circuit has indicated (though arguably in dicta) that “First Amendment free exercise and establishment clause cases . . . turn on application of strict scrutiny.” United States v. Brown, 352 F.3d 654 (2d Cir. 2003) (emphasis added) (citing Larson, 456 U.S. at 246). But see Commack I, 294 F.3d at 425 n.7. (declining to decide whether strict scrutiny or the standard for facial challenges applied because the Kosher “laws fail the test of constitutionality even using the assumptions that are most accommodating to the government”). However classified, it therefore seems likely that an Establishment Clause claim would trigger strict scrutiny. Further research on this question may be warranted if the decision is made to pursue this claim.

IV. The Potential Challenges Under State or Local Law

As we noted in our prior memorandum, there may be grounds for challenging the new regulation under state or local law, in addition to our claims under the First Amendment.

Most promising, an additional count in any complaint challenging the Department’s regulation could assert a claim under the Free Exercise provision of New York State’s Constitution. Article I, § 3 of the New York Constitution provides as follows:

The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed in this state to all humankind; and no person shall be rendered incompetent to be a witness on account of his or her opinions on matters of religious belief; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this state.

The New York Court of Appeals, in a 2006 decision, elaborated on the legal standard that applies under this provision. Of particular note, the court refused to adopt “the inflexible rule of Smith that no person may complain of a burden on religious exercise that is imposed by a generally applicable, neutral statute.” Catholic Charities of the Diocese of Albany v. Serio, 7 N.Y.3d 510, 525 (2006). Rather, the court held that “when the State imposes ‘an incidental burden on the right to free exercise of religion,’” the court must conduct a balancing test to determine whether the burden is constitutional. Id. In conducting that inquiry, “substantial deference is due the Legislature, and that the party claiming an exemption bears the burden of showing that the challenged legislation, as applied to that party, is an unreasonable interference with religious freedom.” Id. In the court’s view, that approach was “more protective of religious exercise than the rule of Smith,” but less protective than strict scrutiny would be. Id. Although the court rejected the Free Exercise claim asserted in Serio, it gave a few examples of generally applicable laws that would fail its “reasonableness” test: “a general prohibition of alcohol consumption,” which “could make the Christian sacrament of communion illegal,” “uniform regulation of meat preparation,” which “could put kosher slaughterhouses out of business,” and “prohibitions of discrimination on the basis of sex or marital status,” which “could end the male celibate priesthood.” Id. at 527 (quoting Michael McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1417 (1990)).

For purposes of the challenge to the Department’s regulation, the potential value of the New York State Constitution would therefore arise in the event that the court rejected our claim that the regulation, by targeting a religious practice, falls outside of Smith’s category of facially neutral and generally applicable laws. If the court were to accept that claim, then strict scrutiny applies under federal law, and the state constitutional provision would not add anything. But if the court rules that the regulation is facially neutral and generally applicable, then invoking the New York Constitution would elevate the standard of scrutiny from rational basis (which would apply for federal purposes under Smith) to “reasonableness” (which would apply for state-law purposes under Serio). To be sure, that may not be enough: Serio does hold that the government is entitled to “substantial deference” in its analysis of the government’s interest, which means that the court would be inclined to accept the government’s view of the safety risks of metzitzah b’peh. But rational basis would be a non-starter, and reasonableness review at least allows for a somewhat greater possibility of surviving a motion to dismiss. For these reasons, it would be advisable to include a claim under the New York Constitution as part of a complaint challenging the Department’s regulation.

Having said that, New York’s Free Exercise Clause is unlikely to assist in obtaining a preliminary injunction against the regulation. That is because our burden to show that the regulation “is an unreasonable interference with religious freedom,” Serio, 7 N.Y.3d at 525, would depend on our ability to counter the government’s legitimate interest in educating the parents of infants undergoing metzitzah b’peh and possibly suffering physical harm. That is largely a fact-intensive question, and, as previously discussed, our chances of convincing the judge to issue preliminary relief—at least based on the factual record we have now, before any discovery—are small. Preliminary relief becomes more plausible only if the judge accepts that strict scrutiny is the proper legal standard—and the New York Constitution does not help with that issue.

In addition to the State Constitution, we have looked into whether there could be any potential claim that the Department lacks the authority, under state or local law, to issue this type of regulation. The judge who refused to allow the San Francisco circumcision ballot initiative to go forward rested on similar grounds in doing so, concluding that California had forbidden its municipal governments from regulating medical procedures. See Jewish Community Relations Council v. Arntz, CPF-11-511370 (San Francisco Super. Ct., July 28, 2011). By contrast, the New York City Department of Health appears to have fairly broad regulatory authority. The New York City Charter grants to the Department “jurisdiction to regulate all matters affecting health in the city of New York and to perform all those functions and operations performed by the city that relate to the health of the people of the city.” N.Y.C. Charter § 556. While the Department cannot adopt rules that are inconsistent with state law, we have looked but not yet found any state law that would preempt the Department from issuing this regulation.

With respect to administrative procedure, and whether the Department followed all of the requisite processes before promulgating the regulation, the relevant legal provisions are found in Chapter 45 of the New York City Charter, which governs administrative procedure by city agencies. In particular, § 1043 of the Charter sets forth procedures that an agency must follow in order to promulgate a regulation. Below are each of the relevant requirements. Based on our review, the Department has followed the proper administrative procedures, and there is therefore no basis to challenge the rule as inconsistent with the City’s Administrative Procedure Act.

• The agency must “publish the full text of the proposed rule in the City Record at least thirty days prior to the date set for a public hearing … or the final date for receipt of written comments, whichever is earlier.” Id. § 1043(b)(1). While the notice of proposed rulemaking is not dated, it appears to have been issued more than 30 days prior to the date of the public hearing, which was July 23, 2012.

• “Such published notice shall include a draft statement of the basis and purpose of the proposed rule, the statutory authority, including the particular sections and subdivisions upon which the action is based, the time and place of public hearing, if any, to be held or the reason that a public hearing will not be held, and the final date for receipt of written comments. If the proposed rule was not included in the regulatory agenda, such notice shall also include the reason the rule was not anticipated.” Id. The Department’s notice appears to satisfy these requirements, as it includes a statement of basis and purpose, statutory authority, details about the public hearing, the date for receipt of comments, and the reason why the rule was not included on the regulatory agenda.

• “Copies of the full text of the proposed rule shall be electronically transmitted to the office of the speaker of the council, the council’s office of legislative documents, the corporation counsel, each council member, the chairs of all community boards, the news media and civic organizations no later than the date the proposed rule is transmitted to the City Record.” Id. § 1043(b)(2). We have no reason to believe that the rule was not so transmitted; but, regardless, this section proceeds to say that inadvertent failure to comply with this requirement does not invalidate the rule.

• The agency is also required to publicizing the hearing on its website and using other means. Id. § 1043(b)(4). Again, however, we have no reason to doubt the Department’s compliance with that requirement, and anyway the provision goes on to stipulate that inadvertent failures to comply do not invalidate the rule.

• The proposed rule must be reviewed by the Corporation Counsel, to ensure that it falls within the authority of the agency; and by the Law Department and Mayor’s Office, to ensure compliance with various other requirements (e.g., that the rule is clearly written and clearly explained). Id. § 1043(c) & (d). Here, the notice of proposed rulemaking includes certifications indicating that these reviews were performed by the appropriate offices.

• Finally, the agency must provide an opportunity for public comment, such as by written comments or public hearing. Id. 1043(e). Notably, “adoption of revisions based on the consideration of relevant agency or public comments shall not require further notice and comment pursuant to this section.” Id. The Department did hold a public hearing on this regulation, and did allow for the submission of written comments.

So, while New York City does impose certain procedural requirements on agencies promulgating new regulations, they are not especially onerous and they appear to have been fully satisfied here. We therefore do not recommend adding a count based on the New York City Administrative Procedure Act.

1 Various courts have incorporated language to this effect in their opinions on this issue. See, e.g., Commack Self.-Serv. Kosher Meats, Inc. v. Hooker, 680 F.3d 194, 210 (2d Cir. 2012) (quoting this language from Lukumi); Stormans, Inc. v. Selecky, 586 F.3d 1109, 1131 (9th Cir. 2009) (deeming regulations neutral because “[t]hey do not suppress, target, or single out the practice of any religion because of religious content”); St. John’s United Church of Christ v. City of Chicago, 502 F.3d 616, 631 (7th Cir. 2007) (stating that a “law is not neutral if ‘the object of the law is to infringe upon or restrict practices because of their religious motivation’” and the government may not “‘impose burdens only on conduct motivated by religious belief’” (quoting Lukumi, 508 U.S. at 533, 543)); Tenafly Eruv Ass’n v. Borough of Tenafly, 309 F,3d 144 (3d Cir. 2002) (stating that “the principle of Lukumi” is that “government cannot discriminate between religiously motivated conduct and comparable secularly motivated conduct in a manner that devalues religious reasons for acting”).

2 A separate, but closely related issue, involves whether a showing of animus is necessary to establish a violation of the Free Exercise Clause. Some commentators and courts have suggested, especially in light of the Supreme Court’s decision in Locke v. Davey, 540 U.S. 712 (2004), that hostility to religion is a necessary component of any showing of non-neutrality. See, e.g., Erickson v. Bd. of Governors, 207 F.3d 945, 950 (7th Cir. 2000) (“Smith held that demands for accommodation and claims of disparate impact have no constitutional footing under the Free Exercise Clause; it takes express or intentional discrimination to violate that provision.”); Prater v. City of Burnside, 289 F.3d 417, 429 (6th Cir. 2002) (“The Church, therefore, must show more than disparate impact in order to prove discriminatory animus on the part of the City.”); Marci A. Hamilton, God vs. The Gavel 215–16 (2005). In Locke, the Court upheld a Washington scholarship program that facially discriminated against religion by baring the use of the scholarship to obtain a devotional theology degree, noting that in that case “the State’s disfavor of religion (if it can be called that) is of a far milder kind” and “evinc[es none of] the hostility toward religion which was manifest in Lukumi.” 540 U.S. at 720, 724.

While the Supreme Court has not resolved the question, other courts and commentators have argued that a showing of animus is not required. See Colo. Christian University v. Weaver, 534 F.3d 1245, 1260 (10th Cir. 2008) (rejecting the argument that the government could discriminate on the basis of religion if it was not motivated by animus); Shrum v. City of Coweta, 449 F.3d 1132, 1144 (10th Cir. 2006) (“Proof of hostility or discriminatory motivation may be sufficient to prove that a challenged governmental action is not neutral, but the Free Exercise Clause is not confined to actions based on animus.” (citations omitted)); Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1234 n.16 (11th Cir. 2004) (“Under Lukumi, it is unnecessary to identify an invidious intent in enacting a law—only Justices Kennedy and Stevens attached significance to evidence of the lawmakers’ subjective motivation.”); Douglas Laycock, A Syllabus of Errors, 105 Mich L. Rev. 1169, 1184 (2007) (asserting that the theory that animus is required is “false” and that Lukumi “could have been decided on grounds of animus, but when Justice Kennedy tried to decide it that way, he only got two votes”).

3 This is roughly analogous to the doctrine allowing restrictions on speech by government employees. There, the restrictions act as a condition on the continued government employment. See, e.g., Garcetti v. Ceballos, 547 U.S. 410 (2006) (rejecting “notion that the First Amendment shields from discipline the expressions employees make pursuant to their professional duties”). Doctors, lawyers, and other licensed professionals are, of course, not government employees—but they are government licensees, and the distinction may be more of degree than of kind.

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Here's the entire memo, including the footnotes missing above, as a PDF file. Right click to view in another window or tab in your browser or left click to download:

MBP Lawyers Research Memo 8-24-2012 WAI_3085330_1_MBP_ Memorandum Summarizing Additional Research