On July 28, Judge Loretta Giorgi of the California Superior Court for the County of San Francisco ordered that the proposed measure to ban circumcision be removed from the November 8th ballot. The new law would have made it a misdemeanor, punishable by fine or jail, for any person to perform a circumcision on a male under the age of 18. The ban provided no religious exception.
Putting aside the possible parental rights issue, for the many citizens whose religious practices require male circumcision, this ban was extremely threatening. For example, one of the most universally practiced rituals amongst the Jewish people is that of “brit milah,” or “the covenant of circumcision.” The tradition comes from Genesis, in which God tells Abraham, “every male among you who is eight days old shall be circumcised.” Gen. 17:12. The ban would prohibit mohels (traditional performers of circumcisions) from fulfilling that long-held tradition.
The First Amendment prohibits government interference with the free exercise of religion. The Supreme Court, however, has held that this does not mean “that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.” Employment Div., Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872, 878 (1990). Additionally, the Supreme Court stated, “our cases establish the general proposition that a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice.” Church of Lukumi Babalu Aye, Inc. v. City of Hileah, 508 U.S. 520, 531 (1993) (citing Smith, 494 U.S. 872). The First Amendment issue therefore is whether the proposed circumcision ban would qualify as “an otherwise valid law” under Smith. The Anti-Defamation League, a group dedicated to fighting bigotry around the world, doesn’t think so.
While the ADL does not believe the ban was specifically targeting people of Jewish or Muslim faiths, some argue that anti-Semitic propaganda surrounding the ban shows otherwise. Mathew Hess, an anti-circumcision activist and drafter of the proposed bill, created an online comic titled “Foreskin Man.” Foreskin Man’s second issue depicted the hero, Foreskin Man, saving a baby boy from an attempted circumcision by the evil “Monster Mohel.” The offensive comic was condemned by San Francisco City Attorney Dennis Herrera, who likened the comic to Nazi propaganda of the 1930s and 1940s.
The ADL joined community activists, Jewish and Muslim families, and doctors in a lawsuit challenging the ban. The challengers of the bill sought to remove the proposal from the November 2011 ballot based on existing California law. (For more on the ADL lawsuit please visit ADL Press Release). Judge Giorgi, without mentioning the free exercise concerns, held that circumcision is a “widely practiced medical procedure” and therefore “a statewide concern,” leaving no room for regulation by the individual cities. (See Jewish Community Relations Council of San Francisco et al v. John Arntz, in his official capacity as Director et al, CPF11511370). It has been reported that proponents of the bill plan to appeal Judge Giorgi’s decision.
There are different complicated legal and religious issues that surround this proposed ban and many different ways this story could unfold. I hope to continue following the possible appeal and commenting on this story as it develops. – YAH