In response to Eugene's question, wouldn't a law banning oral suction be subject to the compelling interest test as a hybrid rights case under Smith? That is, such a law would implicate the parent's free exercise rights as well as their parental rights to direct the care and nurture of their children. My recollection is that footnote one in the Smith opinion specifically points to free exercise plus parental rights as an example of a hybrid claim, and the Troxel court identifies "the liberty interest . . . of parents in the care, custody, and control of their children [as] perhaps the oldest of the fundamental liberty interests recognized by [the] Court." Even assuming the State had a compelling interest in banning oral suction, a complete ban - as opposed to, say, testing of Rabbis to insure they didn't have Herpes 1 - would appear to fail the narrowly tailored requirement.
Gene Summerlin Ogborn, Summerlin & Ogborn, P.C. 210 Windsor Place 330 South Tenth Street Lincoln, NE 68508 (402) 434-8040 (402) 434-8044 (facsimile) (402) 730-5344 (mobile) [EMAIL PROTECTED] www.osolaw.com -----Original Message----- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Monday, August 29, 2005 5:59 PM To: Law & Religion issues for Law Academics Subject: "Bloodsucking circumcision" That's the headline Slate gave this story, and it's surprisingly accurate. According to this New York Times article, http://www.nytimes.com/2005/08/26/nyregion/26circumcise.html?adxnnl=1&ad xnnlx=1125344508-1l0XYEAQaD0o+O4NL+m3Fw, A circumcision ritual practiced by some Orthodox Jews has alarmed city health officials, who say it may have led to three cases of herpes -- one of them fatal -- in infants. But after months of meetings with Orthodox leaders, city officials have been unable to persuade them to abandon the practice. The city's intervention has angered many Orthodox leaders, and the issue has left the city struggling to balance its mandate to protect public health with the constitutional guarantee of religious freedom. . . . The practice is known as oral suction, or in Hebrew, metzitzah b'peh: after removing the foreskin of the penis, the practitioner, or mohel, sucks the blood from the wound to clean it. It became a health issue after a boy in Staten Island and twins in Brooklyn, circumcised by the same mohel in 2003 and 2004, contracted Type-1 herpes. Most adults carry the disease, which causes the common cold sore, but it can be life-threatening for infants. One of the twins died. . . . The health department, after the meeting, reiterated that it did not intend to ban or regulate oral suction. But Dr. Frieden has said that the city is taking this approach partly because any broad rule would be virtually unenforceable. Circumcision generally takes place in private homes. . . . "[T]he most traditionalist groups, including many Hasidic sects in New York, consider oral suction integral to God's covenant with the Jews requiring circumcision," and thus religiously obligated. The prohibition therefore substantially burdens their religious beliefs (whether or not we think these beliefs are sensible). . . . "The Orthodox Jewish community will continue the practice that has been practiced for over 5,000 years," said Rabbi David Niederman of the United Jewish Organization in Williamsburg, Brooklyn, after the meeting with the mayor. "We do not change. And we will not change." Any thoughts on whether a ban on such oral suction would be proper (assuming that it does indeed pose a danger, though not a vast danger)? Would it be constitutional, if the New York Constitution is interpreted as providing for a Sherbert/Yoder compelled exemption regime (a matter that's currently unsettled)? Eugene _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
