Congratulations to my good friend Yaakov Roth on two victories in two courts of appeals on two different religious liberty cases–on the same day.
On Friday, Yaakov won the first case he has ever argued, Haight v. Thompson in the 6th Circuit. Yaak took this case pro bono. The case involved a RLIUPA claim on behalf of Native American inmates in a Kentucky prison who wanted to partake in the ceremonial sweat lodge ritual, and eat traditional foods. Judge Sutton, writing for the panel, agreed with their main claims, and found they should be allowed to engage in their rituals. Though they lost on damages, though (now-Chief) Judge Cole wrote separately to express some reservations on the court’s damages jurisprudence.
Also on Friday, the Second Circuit ruled in favor of a case Yaakov has been working on for about three years, involving a New York City regulation concerning a specific form of circumcision practiced by some sects of Orthodox jews, where oral suction is applied to the penis. NYC, after reports that infants received the Herpes Simplex Virus from this procedure, required that the Rabbis who perform this ritual (mohelim) provide a disclosure to the parents. This regulation was challenged on both compelled speech, and First Amendment free exercise grounds. The district court ruled against the Rabbis, but the 2nd Circuit reversed, finding the district court should have applied strict scrutiny on a Church of Lukumi claim. Interestingly, the 2nd Circuit did not reach the compelled speech issue, because strict scrutiny applies on religion. I thought the Free Exercise claim was much tougher, and they were on stronger footing with compelled speech, but the Court insisted this regulation singled out a very small sect of Orthodox Jews. Eugene Volokh has more about the case.
Congratulations again to Yaakov, and all of the attorneys who worked with him on these cases!