Wednesday, November 24, 2010
Petition Drive for Anti-Circumcision Ballot Initiative in San Francisco
News comes to me of a petition drive for a ballot initiative that would ban circumcisions in San Francisco. Its supporters say the law will "make it illegal, except in the case of extreme medical emergency, to circumcise male infants and minor children" in the City and County of San Francisco. The proposed language can be found here. It would ban circumcisions for minors except where "the operation is necessary to the physical health of the person on whom it is performed because of a clear, compelling, and immediate medical need with no less-destructive alternative treatment available" and is performed by a licensed medical practitioner. It further states that "no account shall be taken of the effect on the person on whom the operation is to be performed of any belief on the part of that or any other person that the operation is required as a matter of custom or ritual."
This raises some interesting questions. Under prevailing Free Exercise jurisprudence, the law as written strikes me as neutral and generally applicable. The more pressing question is whether it nevertheless is unconstitutional because, under the Supreme Court's decision in Lukumi Babalu Aye, it creates an exemption for non-religious circumcisions but none for religious circumcisions and thus can be read as not truly neutral or generally applicable. Under Ninth Circuit law, however, the existence of a single exemption, tailored to a specific concern like a medical emergency, may not suffice to rebut the rule in Employment Division v. Smith. (See Stormans, Inc. v. Selecky, 586 F.3d 1109, 1134-35 (9th Cir. 2009); Thomas v. Anchorage Equal Rights Comm'n, 165 F.3d 692, 701-02 (9th Cir. 1999) [subsequently abrogated on other grounds]). Even in those circuits that have been more aggressive in treatment the existence of non-religious exemptions as creating a strong suspicion that the law discriminatorily fails to show equal regard for religious claims for an exemption, this law might still pass muster, since the single exemption serves the ostensible purpose of the bill. One story on this petition suggests that the language making clear that there is no religious exemption may itself endanger the petition. Of course, that language could be excised easily enough (pardon the pun or not as you please) at the drafting stage, but I don't think the language is necessarily constitutionally problematic. It simply clarifies that no other reason for an exemption save medical necessity is acceptable. The petition is hostile, to be sure, but not just to religion--it's hostile to medically unnecessary circumcision in general. (I take no position on what California state constitutional law provides on these issues.)
So the law might be constitutional despite its obvious disproportionate effect on those who seek circumcisions for religious reasons. But is it wise policy? Consider that the law makes an exception for physical health, but not for emotional well-being. Consider, too, the possibility that this might drive those seeking circumcisions into the hands of back-alley mohels, sometimes charging outrageous fees and operating in circumstances that, because unregulated, might be much more dangerous to the patient. Finally, although one could argue that circumcisions could easily be obtained elsewhere, this makes circumcision available to the wealthy and places a strong burden on the poor, for whom travel might be difficult and expensive. In other words, on a matter of profound importance to intimate family relationships and personal autonomy, we might have one law for the rich and one for the poor.
(Yes, I am drawing an analogy. Yes, the analogy is imperfect.)
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My guess is that if the initiative passed, the California Supreme Court would strike it down. The court has reserved the question as to whether the California Constitution applies Employment Division v. Smith or the pre-existing strict scrutiny standard. See North Coast Women's Care Medical Group, Inc. v. Superior Court, 44 Cal. 4th 1145, 1158 (2008). I would guess that this initiative would provoke them to decide that strict scrutiny applies, and to strike down the initiative.
But anyway, I seriously doubt it will pass.
Posted by: AF | Nov 24, 2010 10:30:30 AM
Do you happen to know who is pushing the initiative? I was wondering about that. Thanks.
Posted by: Jen Kreder | Nov 24, 2010 10:40:34 AM
Californians, a people stereotypically known for their love of body modification (make-up, plastic surgery, tanning, piercings, hair dying, etc.), ban circumcision. Why?
Posted by: Joe | Nov 24, 2010 10:47:48 AM
Paul, Ever heard of a case called Wisconsin v. Yoder? If Amish parents who want to remove their children from compulsory school attendance win under the Free Exercise Clause, Jewish parents who want to remove their children's foreskin would win, too. Smith expressly approved of the outcome in Yoder. So you can be sure the Supreme Court would find a way around Smith in this case, probably by relying on Yoder.
Posted by: Mari | Nov 24, 2010 11:27:54 AM
Mari, it is open to question how much vitality Yoder retains after Smith, notwithstanding Justice Scalia's effort to avoid overruling it in his opinion for the Court. You will recall that he let it stand as a hybrid rights case. Of course the same argument could be employed here; indeed, a hybrid rights argument is available in virtually every Free Exercise case (which is one reason why the notion of a hybrid rights exception to Smith has been ridiculed). But that does not mean it would succeed. If you are suggesting that the Supreme Court or a lower court has resources available to it to strike down the law, well, yes, I agree. As a matter of doctrine faithfully applied however, I think a quite reasonable argument can be made in favor of the constitutionality of this law. Of course, that is not a statement on the merits of the particular law or of current constitutional doctrine in this area, of which I have been critical.
Posted by: Paul Horwitz | Nov 24, 2010 11:41:47 AM
AF: now that would be the more interesting story: whether banning circumcision promotes a compelling gov't interest. I assume that this would be a value judgment cloaked in the sophistry of a judicial "test." The state does not have a compelling interest in determining what medical procedures may be performed on minors? Sounds like judicial legislating is the only way to strike this one down. Though I agree that it will not pass.
Joe: I think its about being a "minor"
Posted by: anon | Nov 24, 2010 11:43:01 AM
Paul, "doctrine faithfully applied" points in two different directions, so of course "a reasonable argument can be made" either way. But you're living in a dream world if you think, when the rubber really meets the road, the Supreme Court would interpret the free exercise clause to permit a ban on circumcision. Not going to happen. This law could perhaps be upheld on the ground that there's no significant burden on Jews because they can just drive a few minutes to a nearby town without a ban. But the Court is not going to blindly apply Smith here, just as no court would blindly apply Smith to a Title VII claim requiring the Catholic church to hire a female priest. Or do you think such a Title VII claim would succeed, too? Your error is that you think Smith is the end all of free exercise doctrine. It's a very important case, but it's not the only one.
Posted by: Mari | Nov 24, 2010 11:52:52 AM
I think all of the forms of body modification I listed above can be performed legally upon minors with the parents consent -- in this respect the issue of "minors" I think is irrelevant. Unless I'm wrong about this, I think this leaves the question as to why circumcision has been singled out.
I was unsure about piercing yet I found this: Cal. Penal Code 652 makes it a crime to "perform body piercing upon a person under the age of 18 years, unless the body piercing is performed in the presence of [...] the person's parent or guardian."
Posted by: Joe | Nov 24, 2010 11:55:11 AM
Mari, I appreciate your comments. But at the risk of failing to allow my post to speak for itself, I think you mistake or overstate the nature of my analysis. I was not making a legal realist prediction about outcomes or implying that Smith is the end of all free exercise doctrine (in either sense of the phrase "the end"). I was making the point that such a law, if passed, would raise interesting legal questions given the state of current legal doctrine. And so it would, in my view, regardless of the outcome. (Indeed, the post-Smith cases upholding the ministerial exception are interesting cases, doctrinally speaking.) I was also raising some broader policy concerns and suggesting an analogy.
Posted by: Paul Horwitz | Nov 24, 2010 11:59:21 AM
Joe, I think the body piercing law actually does raise an opening for the Lukumi Babalu Aye argument about singling out circumcision. On the other hand, it depends on whether a court is inclined to look only at the single statute or at the body of the law, and on whether it believes the two sets of laws raise (more or less) separate concerns.
Posted by: Paul Horwitz | Nov 24, 2010 12:01:46 PM
Paul, thanks for clarifying. I certainly agree that the law would raise interesting legal questions.
Posted by: Mari | Nov 24, 2010 12:06:21 PM
I plan to brand my daughter with a hot iron when she turns 13 years old in a religious ceremony. She consents to my religious authority. If your city bans this, you are violating my free exercise rights because she can get her nose pierced down the street.
Posted by: lawuntohimself | Nov 24, 2010 12:08:53 PM
... or a nose job or a breast job? I am unable to determine quickly if minors can undergo cosmetic surgery with parental consent in California. I think that is pertinent as isn't that precisely what circumcision is?
Posted by: Joe | Nov 24, 2010 12:15:59 PM
anon: "The state does not have a compelling interest in determining what medical procedures may be performed on minors? Sounds like judicial legislating is the only way to strike this one down."
Well, in a sense, the Sherbert test is always an invitation to judicial legislating. But the state's interest in preventing the harm from male circumcision doesn't strike me as any more compelling than its interest in mandating universal public education.
Posted by: AF | Nov 24, 2010 1:28:15 PM
Free exercise concerns should not be implicated by a ban on one person forcibly and permanently imposing a religious belief on another person. If this starts preventing people from having circumcisions that *they* want to have, it might start to pose First Amendment questions.
Posted by: Andrew MacKie-Mason | Nov 24, 2010 2:01:03 PM
AF: The court in Yoder basically said there was no (or very little) harm in the Amish children failing to receive one or two more years of formal education because they weren't going to be part of "modern society" anyway. The state's paternalistic interest in regulating a medical procedure would be to reduce the "harm" that is likely to result. The religious practices of the Amish religious effectively neutralized the state's interest in preparing children for modern society. The same is not true for this law. I don't see how religious belief diminishes the "harm" that this medical procedure allegedly causes.
Posted by: anon | Nov 24, 2010 2:26:24 PM
anon: That may be what the Court said, but are you suggesting that finding the state's interest in public education insufficiently compelling is somehow not "judicial legislating", whereas finding the state's interest in preventing male circumcision insufficiently compelling would be?
Posted by: AF | Nov 24, 2010 3:05:06 PM
Paul, the back alley mohel bit is pretty funny indeed. I am pretty sure that, on that score, mohels would answer to a higher authority -- not just in the reasonableness of the price they charge and the sterility of their work, but also in deciding whether they can continue to perform brit milot.
If you play this out a bit further, and assume that the courts affirm the constitutionality of SF's law, then you'd have to wonder whether juries would convict. Would prosecutors even bring charges? Would the parents be the targets of prosectution? The mohels? Would there be raids? (Drop the Challah and put your hands up!) Wouldn't most juries in SF have at least one Jewish member? If so, would such an individual hold out and nullify? (Wouldn't you if you believed in the sanctity of brit milah?)
All of which is to say, this indeed raises really, really interesting issues, from a number of perspectives. Thanks for posting about this.
Posted by: Vladimir | Nov 24, 2010 3:37:07 PM
AF: To a certain extent that would be true. The court in Yoder accepted that the state had a compelling interest in general in compulsory education, but that as applied to the Amish it did not make sense because of religious practice. I don't see how that argument applies to this law (although I think that Yoder should be buried as useless).
Unless you are suggesting another route, then the only way around this law is to make the ultimate value judgment on whether circumcision is good or bad, and that is legislating. The analogy would be if the Court in Yoder had said the state does not have a general interest in training its citizens for modern society. Again, the Court did not do that.
It is always a matter of line drawing, and I see this one as on the other side of the legislating line.
Posted by: anon | Nov 24, 2010 3:41:27 PM
What about laws banning *female* circumcision? Do they fall under the same analysis?
Posted by: rufflesinc | Nov 24, 2010 3:43:51 PM
It is worth noting that male circumcision is increasingly not covered by health insurance. It is deemed elective surgery. Parents who elect the procedure are expected to pay cash on the barrel. Back alley procedures, indeed.
Since the majority of male circumcisions have been performed -- throughout history -- by non-physicians in non-acute care settings isn't it the relatively late arriving transformation of a cultural practice into a medical one (for a significant number of Americans) that makes this petition interesting?
A much more nuanced proposal that government subsidized acute care hospital resources (the most expensive venue for any procedure) not be made accessible for non-medical procedures unless the full (non-subsidized) price were paid. No fee shifting for religiously or culturally elected male circumcision in an acute care setting, in short. Viewed from this perspective, this anti male circumcision campaign would be infinitely more interesting.
Posted by: beenthere | Nov 25, 2010 12:53:41 AM
The proposed wording closely matches existing laws against female genital cutting, including the specific exclusion of a religious or cultural exemption - in fact it would stand a much greater chance if it simply subsumed those laws and was gender-neutral, because then the defenders of male but not female circumcision would have to extract the specifically male aspects and justify them.
You call it "a matter of profound importance to ... personal autonomy" which is exactly why it is being proposed. In fact while the national umbrella group is called "Intact America", a new international one is called "Genital Autonomy".
Joe: the difference is that those are all body modifications that people choose for themselves. The proposed law does not affect circumcisions that adults choose for themselves (nor those few that are medically necessary). The comparison with piercing breaks down because piercing does not remove tissue, and if rings are left out, a piercing will close, leaving no trace. Genital cutting is more comparable with branding and tattooing, and even more so with nose-notching or tooth avulsion. A child electing a nose job or a breast job with parental consent is different (almost the reverse) from a parent electing penile reduction (for that is what circumcision is) without the child's consent.
Posted by: Hugh7 | Nov 26, 2010 3:52:23 AM
If presented to the US Supreme Court, I suspect they won't look at something non-invasive like education for help, but instead something directly on point, the genital cutting by parents or proxy, namely the 1996 Federal Prohibition Against Female Genital Mutilation (FGM), plus the large body of law regarding forced sterilization and children’s rights. Read Povenmire* for a summary.
To me, this is not a religious issue, but a gender issue. I suspect that the Court would give the 15th Amendment great weight here in its current reading as also protecting the rights of citizens in regard to gender. Curiously, using semi-circular logic, if the Equal Rights Amendment had been passed, then the FGM ban would have to have been written in gender neutral language, making this SF proposal moot.
Child abuse laws in many states do not prohibit spanking, but do prohibit permanent physical injury to children. Circumcision painfully removes and discards healthy tissue that has value and function leaving a large, permanent scar on the man's genitals, what some call a daily reminder that his body now belongs to his community.
Religious freedom can, and has, been limited by the State. You can't attack another person in the name of your religion. Your right to practice religion ends at my nose, just as my right to practice what religion I choose ends at your nose. Since children are not chattel, it stands that they also have "security of person" guaranteed by the 4th Amendment. If you think that pat downs at the airport are invasive, look again at circumcision: naked, restrained, and genitals carved.
Did you know? Jewish leadership has twice seriously considered abandoning the practice of male infant circumcision. Once in the 2nd century, and later during the Jewish Reform in the middle 19th century.
Playing the devil’s advocate using the same of the religious rights arguments stated above, wouldn't the Supreme Court also have to call the FGM ban unconstitutional on the grounds that it prevents Muslims from circumcising their daughters? You can't have it both ways. What's good for the goose is good for the gander. In the end, what is needed isn't a ban on male circumcision in SF, although that's a good start, but for the FGM ban to be re-written in gender neutral language.
*Ross Povenmire. Do Parents Have the Legal Authority to Consent to the Surgical Amputation of Normal, Healthy Tissue From Their Infant Children?: The Practice of Circumcision in the United States. 7 Journal of Gender, Social Policy & the Law 87 (1998-1999).
Posted by: Dan Bollinger | Nov 26, 2010 9:37:33 AM
The law currently protects female babies from ANY sort of genital cutting (even the relatively 'minor' ritual nick done for 'religious' purposes - which is far less invasive and damage than male circumcision). This protection for female children is sexist and unconstitutional. Protection for male children in this regard is long overdue and would indeed be constitutional.
Posted by: Cyn | Nov 26, 2010 12:19:13 PM
Leaving aside the free exercise arguments, how does a CITY get the authority to pass what seems to me to be a criminal law? Isn't this ultra vires a municipal government?
Posted by: Mike | Nov 26, 2010 6:46:27 PM
National and international laws already exist that outlaw cutting off healthy, normal body parts of non-consenting minors. What is needed is the implementation of these laws. A ban on circumcision of minors will serve that purpose.
As for religious circumcision, a baby born in the USA is a citizen who is protected by the Constitution and has a right to religious freedom. When his body is marked to "make" him a Muslim or Jew, his right to religious freedom has been denied.
The proposed ban doesn't ban circumcision, it protects genital autonomy until a minor reaches the age of majority and is able to make this personal and important decision for himself.
Posted by: Marilyn Fayre Milos, RN | Nov 29, 2010 12:11:05 PM
The 'free exercise' puzzle can be tested by a simple example: In Shiite tradition, children's foreheads are slashed three times each year so blood will cascade down their faces, on the occasion of Ashura, to commemorate the beheading of the Shiite martyr Imam Hussein in the year 780CE.
Query: Would we let Shiite immigrants to the USA cut their children in this fashion each year? What if doctors volunteered to do so using sterile technique? See any human rights' problems anywhere in here?
Yoder v Wis does not permit bodily injury for religious reasons (only the mental injury of religious stunting of intellect). Prince v Mass, which forbids physical injury to children outright, is the better guide and is still good law.
Our physicians' organization believes the SF effort to ban circumcision will likely fail, but that's because time and familiarity can make any barbarity seem normal (especially if the barbarity is inflicted on children). What's worse, the law is a lagging indicator of human progress which usually follows culture rather than leading the way.
Atty at Law;
Doctors Opposing Circumcision
Seattle, WA USA
Posted by: John Geisheker | Nov 29, 2010 1:34:02 PM