Ari Ezra Waldman | Law - Gay, LGBT | San Francisco

San Francisco's Circumcision Ban: Nipping Freedom in the Bud


Ari Ezra Waldman is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His research focuses on gay rights and the First Amendment. Ari will be writing weekly posts on law and various LGBT issues. 

Follow Ari on Twitter at @ariezrawaldman.

Sf I first heard the term "male genital mutilation" while swallowing a delicious sole meuniere at an opposite-sex wedding. A lovely man my age, sitting two seats away and giving the shaft to his girlfriend, asked what I did for a living and then unloaded verbal frustration that must have been building for some time. He was born in San Francisco and found nothing good to say about the the city's ongoing attempt to ban circumcision.

A proposal to ban the circumcision of males under the age of 18 in San Francisco will go before the city's voters in November. The initiative qualified for the ballot with more than 7,700 valid signatures from city residents, about 600 more than necessary. If the measure passes, circumcision would become a misdemeanor punishable by a fine of up to $1,000 or up to one year in jail. There would be no religious exemptions.

There are a few striking facets to this debate. First, the constitutional arguments seem to support opponents of the ban, but many commentators are making incomplete arguments. Second, the language proponents have used to support their arguments is egregiously over the top. And, third, conspiracy theories have infected this discussion. What do you think about this ban? Would you vote for it or against it? Why? If you were a lawyer, which side would you represent in court?


Two lines of long-standing Supreme Court precedents suggest that, if challenged as a violation of the federal Constitution, the San Francisco circumcision ban would be declared unconstitutional. The First Amendment's Free Exercise of Religion clause, as applied to the States, bans any state action that would interfere with one's legitimate religious beliefs and customs. Banning circumcision without any religious exemption would destroy an essential ritual in the Jewish religion that does nothing less than link Jewish males to God.

The seminal case Employment Division v. Smith speaks to this issue. In that case, the Supreme Court upheld the constitutionality of an Oregon law that banned the possession/use of peyote despite the fact that the ban interfered with the petitioners' church's ceremonies that required peyote. The majority found that the Free Exercise Clause does not ban all laws that affect religion, but rather only those that directly ban a specific religious practice, like banning the Christian tradition of using your hand to designate a cross across your chest and head or banning the reading of Old Testament scrolls in Hebrew or in a tune. In contrast, Oregon's law was one of "neutral law of general applicability." It applied to everyone, not just those who wanted to use peyote for religious reasons. And, the only time religious observance can exempt you from neutral laws of general applicability is when your religious right is bound up with or accompanied by another right. For example, the government cannot force the Amish to send their children to school not only because Anabaptists forbid it, but also because parents have the right to raise and educate their children. It is as if by impacting two rights -- the freedom to follow your religious beliefs and the right to raise your child as you see fit -- the otherwise generally applicable law went too far.

Notably, Justice O'Connor's concurrence and the dissent disagreed with this analysis and while I sympathize with that position, it is not the law... yet. Still, Justice O'Connor and the dissent would have simply applied the traditional "compelling interest" test, asking if the state had a compelling interest to interfere with the petitioners' religious freedom and did so in a "narrowly tailored" way. Justice O'Connor said yes, noting that, as a Schedule I narcotic, peyote has a high potential for abuse, has no currently accepted medical use, and lacks any safety standards for using the drug under medical supervision. Justice Blackmun's dissent said no, focusing instead on the fact that churchs' use of peyote is so minimal that the State's compelling interest in eradicating drug use could still be realized with a narrower law that accepted the religious needs of the few.

In any event, pursuant to Justice Scalia's majority opinion, the question is whether this ban implicates a second right?

This two-right analysis suggests that the San Francisco circumcision could fail under a Free Exercise challenge, even under the weaker Free Exercise clause post-Employment Division v. Smith. Not only does the ban interfere with a specific religious ritual, but it also impedes parents' rights to raise their children as they see fit. This long line of cases -- including, Pierce v. Society of Sisters (ban on non public schools unconstitutional) and Meyer v. Nebraska (declaring a ban on foreign language education unconstitutional) -- suggests that parents have the fundamental right to govern the development of their children.

But, does it? Most of the cases in this area of law deal with education -- the parents' right to send their children to Catholic schools, teach their children German or shield them from certain school subjects. The fact that parents have a fundamental right to educate their children as they see fit does not necessarily mean that parents have a fundamental right to do whatever they want to their children. That will be the circumcision ban's defense in federal court. I would argue that Justice O'Connor's analytical structure in Employment Division makes more sense, but, in the alternative, the language of the parental rights decisions speaks volumes to the Court's view that even though educational issues were in front of them, the members of the Court were speaking to a broader parental right to raise children. And, besides, a circumcision could be seen as an educational tool, one essential for a Jewish person to understand his people's traditions, customs and liturgy.

These constitutional arguments have been hidden behind nonsensical rhetoric and conspiracy theories. The phrase "male genital mutilation" is outrageous, considering anyone can muster as many, if not more, scientific facts in support of the health benefits of circumcision as proponents' can offer on the other side. And, the ban's main proponent, an anti-circumcision crusader named Lloyd Schofield has other unfortunate rhetoric: "Parents are really guardians, and guardians have to do what's in the best interest of the child. It's his body. It's his choice." Huh? If guardians have to do what is in the best interest of the child, how is it the child's choice?

At its core, this debate is not about facts, but about competing values and how far a municipality would like to go in regulating the conduct of its residents. And the fact that neither side could satisfy the other with facts -- I am reminded of the classic Homer Simpson line: "Facts shmacts. Facts can be used to prove anything that's even remotely true!" -- this leads to heated rhetoric, questioning the values and intentions of your opponents and conspiratorial claims like this one from an Orthodox Jewish rabbi: "The city of San Francisco knows it can't do anything about it's worst enemy, the right of Israel to exist, so it's taking out its hatred of Jews by banning our religious rituals." That is about as likely as you missing the repeated double entendre in the first two sentences of this post.

A society based on individual freedom must accomodate the legitimate religious observances of its citizens. It sometimes must do so in spite of generally applicable laws. But, it is not clear to me that the best way to decide when to allow religion to overide other laws is when there is another right also implicated. It minimizes the importance of religious observance to adherents and suggests that the freedom of religion itself is not compelling enough in our conception of liberty. Then again, maybe that is a good thing. A society cannot tolerate pretenses of religious observance as a way of excluding people from the rule of law; otherwise, we would be allowing certain religious people to commit human sacrifices if their religion calls for it. This is not simply a question of line drawing. Rather, it is a question of values and whether the Free Exercise Clause means that your individual rights are primary or whether your religious rights also serve some democratic or civic value. Under either theory, this ban is inappropriate and, in the end, will probably fail at the ballot box anyway.

(image source)

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  1. So clitoris amputation should be allowed as well? Or the more intrusive forms of "female genital mutilation". Although I guess "mutilation" is not the word, the parents have the freedom/right to do whatever they want with their children. Hey, if some religious cretin decides having the hands amputated guarantees going to heaven there will be always some idiots who will do it to their children with the "best of intentions" at heart. As to the so called "health benefits" of circumcision, that's a child's tale, which can be dissmissed easily. Hygiene and education are needed to avoid any "problems" circumcision allegedly solves. Debate is useful and valid as long as it's rational. Choping bits of a boy's body when he cannot choose otherwise or defend himself is not rational. Those who are "for" it, only find justifications more or less in the realm of stupidity and ignorance.

    Posted by: peter | Jun 1, 2011 11:55:14 AM

  2. The author says "A society cannot tolerate pretenses of religious observance as a way of excluding people from the rule of law; otherwise, we would be allowing certain religious people to commit human sacrifices if their religion calls for it". I would argue that the genital mutilation of newborns would fall under the same category.

    Let anyone get circumcised who wants to! When they're old enough to decide for themselves!

    Circumcision became a "religious rite" because ancient societies didn't have soap and water to keep their foreskins clean. Now that we do, it's time to outlaw this barbaric ritual.

    Posted by: Bobby | Jun 1, 2011 11:57:05 AM

  3. I disagree that this ban is inappropriate. I think it's totally appropriate. If male circumcision is allowed under the guise of freedom of religion then other religious mutilation practices such as female circumcision would hold as well. A religions ancient barbaric customs should not be allowed in a free and liberal society. This is not about excluding the Jews or hating the Jews, but about a barbaric practice that needs to stop. If you disagree then maybe we should stone you (another religious practice). If as an adult, a religious male wants to get circumcised, then it should be akin to plastic surgery, and he has the freedom to do so. However, a child does not have that right, and you are taking away HIS freedom.

    Posted by: Circumcised | Jun 1, 2011 11:57:20 AM

  4. Bodily integrity as a human right should trump free exercise of religion. If people want to voluntarily be circumcised when they are old enough to make an informed decision, then that's fine, but newborn infants that are too young for anaesthetic and may well leave the Jewish faith, their right to an intact foreskin should take priority to the will of their parents. Were the religious custom to remove the hands of newborn infants, it would have been banned long ago. Female Genital Mutilation, also done for religious/cultural reasons (with much smaller lobby groups), is already banned. As for the alleged positive health benefits of circumcision, they remain unproven for a reason. Anecdotal evidence exists on both sides, showing that the issue clearly remains contentious, making personal choice a much better mechanism for circumcision than parental. I know I'd be very unhappy with my penis had I been circumsized. My partner was, and is. And if you can't be bothered to wash under your foreskin, which takes about two seconds, then there's something wrong.

    I really don't understand god's foreskin fixation. He's supposed to have invented the things, after all. Shouldn't have bothered if they're so awful.

    Posted by: BenB | Jun 1, 2011 11:59:39 AM

  5. an out and out ban is wrong, forbidding it till one is 18 and can make their own choice is the way to go

    Bobby, not exactly true.....circumcision originated in pagan egypt and spread from there. It did not take hold in all cultures. It had very little to do with sanitation. Not eating pork also originated in pagan egypt

    Posted by: Mstrozfckslv | Jun 1, 2011 12:01:24 PM

  6. Ezra, this key point is, of course, subjective:

    "A society based on individual freedom must accomodate the legitimate religious observances of its citizens."

    What is "legitimate"? I do not consider the removal of an infant's genital tissues to be a "legitimate religious observance". It is mutilation without consent.

    If an 18+ year old male wishes to surgically remove their foreskin for religious or medical purposes, by all means, allow them to do so.

    Posted by: Xavi | Jun 1, 2011 12:02:57 PM

  7. Routine circumcision of boys is based on a whole host of old wives tales and is meant to control the sexuality of males. It is unheard of now to allow ritual circumcision of girls, and the same should hold true for boys. The old excuse that "it's easier to clean" by women is hogwash. It is a legitimate part of the male anatomy, and people need to learn how to care for it, just like any other part of the body.

    Posted by: blatherer | Jun 1, 2011 12:11:04 PM

  8. I'm with the other commenters who feel circumcision IS a bodily mutilation that is inflicted upon children who never have any say in the matter. I'm fully supportive of a ban until the age of 18 at which point people can decide for themselves.

    Posted by: Jim | Jun 1, 2011 12:12:51 PM

  9. ari - your approach to this topic is too defensive. i wouldnt attempt to argue against the select constitutional precedents you have laid out, but most readers should see past your tangential anecdotes and recognize that the deliberate denigration of the proponents of the ban is a result of an emotional response to the issue.

    a handful of my reactions to your essay:

    - the CCSF is not trying to ban circumcision, but rather citizens are attempting to use the initiative process to do the same. thats an important distinction that gets a bit lost in your writeup.

    -dwelling on the fact that judaic customs will be affected by this law only serves to bolster the lie that the suggested ban is somehow anti-semetic. your selective outrage should, along the same lines, see proposed bans on shark-finning as 'anti-asian.'

    -focusing your analysis on the concepts of parental rights belittles the premise that this law is intended to protect the individual child. you may scoff at the phrase 'male genital mutilation' as sensationalistic, but it is hard, cold truth.

    -any male circumcised at birth can show real, lasting affects of the practice. no parent denied the right to circumcise their child could ever do the same. i believe that distinction has weight in our law, and should therefore significantly reduce the parental rights standing.

    i believe this proposal is intended more to start a conversation than it is to succeed at the ballot box and in the courts - and look how far it has come! i wish that, in addition, it was a deliberate attempt to shed light on the absurdity of the california initiative process (but lets save that conversation for another time). irregardlessley, there is clearly still much to resolve in a world where our various (but all supposedly inalienable) rights seem more and more difficult to reconcile.

    for the record: my name is bryce, i am a 29 year old gay man living in san francisco, was born into a jewish family and circumcised at 8-days old, and have not yet decided how i will vote on this proposal.

    Posted by: bryce | Jun 1, 2011 12:16:33 PM

  10. "A society based on individual freedom must accomodate the legitimate religious observances of its citizens."

    It's one thing to get circumcised. It's another thing to circumcise a baby boy against his will. The former is a "legitimate religious observance". The latter is genital mutilation.

    Posted by: Eugene | Jun 1, 2011 12:18:02 PM

  11. Funny that Ari complains about misrepresentations surrounding this measure and then titles HIS post "San Francisco's Circumcision BAN..." Which is an absolute misrepresentation. San Francisco is most certainly not BANNING circumcision. It's banning INVOLUNTARY circumcision of defenseless boys. Men can be circumcised all they want, before and after this law hopefully passes.

    I support it for the very same reason that I've ALWAYS supported "MY body MY choice" and a woman's right to choose. I can't imagine how one could not be considered hypocritical to claim that a woman has a right to self determination about her body and that she should have the right to choose medical procedures done to her body but then not support the same right for males.

    Oh, and I find your graphic HIGHLY offensive!

    And before anyone goes down the typical road of calling me an over reactor or a crazy activist let me just disclose here and now that my penis was severely damaged (mutilated) in the process of my "routine circumcision". I have since found that many, MANY more men have suffered the same fate but NEVER speak about it because of the abuse they get when they discuss circumcision. Well I'm speaking up, even though it's embarrassing and humiliating. The choice should have been mine and I have NO recourse for what was inflicted upon me. It's time that more people, those who are victims, feminists, people who believe in individual liberty, rights to bodily integrity and others who believe that chopping off healthy parts of little boys genitals for no reason (other than religion and misinformation) need to speak up as well.

    Posted by: TampaZeke | Jun 1, 2011 12:21:01 PM

  12. Pretty bizarre of SF of all places to ban circumcision, when it has been shown in trials to significantly reduce the spread of HIV...

    Posted by: Feral | Jun 1, 2011 12:22:29 PM

  13. Sorry to double comment, but this quote definitely rubs me the wrong way: "The phrase "male genital mutilation" is outrageous, considering anyone can muster as many, if not more, scientific facts in support of the health benefits of circumcision as proponents' can offer on the other side."

    The effects of circumcision have long been disproved as having any significant health benefit. And cutting a piece of flesh from someone's body IS mutilation. By definition. You can disagree that it's a bad thing, but it's hardly an "outrageous" claim to call something what it is.

    Posted by: Jim | Jun 1, 2011 12:23:23 PM

  14. Circumcision as an adult is not a difficult process, and can be done under a local anesthetic. I have heard of it being done under a general anesthetic, but that is just a silly risk.

    The disadvantage of doing it as an adult is that is must be more expensive.

    Sometimes in puberty circumcision is necessary because the penis grows faster than the foreskin, and erections are uncomfortable and difficult. That happened to a guy I knew in high school. Once circumcised, everything was just fine.

    Anyway, there is no particular reason to do it to an infant, except for the religious tradition.

    Posted by: Joel | Jun 1, 2011 12:26:41 PM

  15. I've always found it odd that circumcision is the norm in America. It seems logical that if people want to chop a bit off themselves they should be allowed to but it should be their decision. So I think it's a good idea. I could always get circumcised now if I wanted to but I'm not a starfish I can't grow back missing parts.

    Posted by: Theo | Jun 1, 2011 12:27:14 PM

  16. feral

    that is not true

    there are questionable studies that show such but there are just as many questionable studies that show the opposite

    In other words there is no definitive scientific evidence either way that circumcision does or does not prevent the spread of HIV

    Posted by: Mstrozfckslv | Jun 1, 2011 12:27:51 PM

  17. I was born and raised in SF (Galileo HS/SFU), now married to an Irishman, live on Russian Hill. When our son was born we endured great pressure from family/friends to have him cut but Mike and I were adamant that the decision remain with our son. Mike is uncircumcised while I am circumcised and feel to this day my parents should have left the decision to me. It is my body. We will vote to block circumcision. No one, including a church or religion, should have the right to mutilate your body.

    Btw, I feel the same way about dogs and cats. Nature gave them tails for a reason. ( Nor should we snip their ears or remove their nails. )

    Posted by: OS2Guy | Jun 1, 2011 12:28:14 PM

  18. An example of cutting off a hand in the name of religion is extreme and not really a good example because it would leave the person disabled. Circumcision is not disabling, so a closer comparison would be a religion who thought it was appropriate to cut the ears of their offspring into points like Spock. Not disabling, but still disfiguring. Our society probably would have banned ear chopping on humans just as we are starting to do on Dobermans. Just because the circumcision is not on display does not mean it is not disfiguring.

    Sorry, Mr Waldman, performing an unnecessary and irreversible surgical procedure on another human without that human's consent is just plain wrong.

    Posted by: Chadd | Jun 1, 2011 12:29:54 PM

  19. It is appalling that anyone would be able to cut off a functioning, pleasure-filled, useful part of another person's body before they give consent. If people want to get a circumcision when they're fully able to when they're older, that's fine. But to take away a part of somebody, that's outrageous.

    People with foreskins can masturbate (yes, I said it) without spitting on their d-ck or going to the drugstore to find lube or improvising with shampoo or conditioner (ouch it stings). People with foreskins can glide their hand up and down their shaft and get pure pleasure with no lubrication. It's a protective sheath.

    Circumcision started in America as an antidote to masturbation and the fear of sex and pleasure. It should not be continued.

    It's a matter of human rights and bodily integrity.

    Posted by: Rob | Jun 1, 2011 12:30:47 PM

  20. The issue here ISN'T one of religious freedom; it's one of personal body rights and the freedom to make decisions about the way one's body is handled when one is 1) not in any serious medical peril and 2) old enough to make the decision.

    Barring very few exceptions that occur later in adolescence, such as phimosis, circumcision is unnecessary from a health perspective. Studies are finding that men have higher risk of STI infection when uncircumcised, but those studies (especially the ones about HIV) have not been generalized outside of a social-sexual and geopolitical context of sub-Africa. And with specific regard to the HIV studies that demonstrated reduced risk, the study showed reduced risk for heterosexual contact only. A similar study had to be halted early because it was clear that the same risk reduction of HIV infection was not applicable to men who have sex with men. (And this isn't even to mention the thought process of pre-emptive body modification. Would we follow in the vein of women who get pre-emptive double mastectomies, pre-emptive tonsil removal, or pre-emptive appendix removal?)

    The concepts of "hygiene" and health concerns for uncircumcised men, in the context of a society where bathing occurs daily and water is plentiful is hardly an issue at all. It stands to reason that circumcision may have been given the boon of "hygiene" in societies and times when bathing was not regular, but if a man is showering and can take the 10 seconds to pull back his foreskin and give it a scrub, the concern goes out the door.

    In the end, this is about giving a child the freedom to choose whether or not they want a non-threatening, natural part of their body to be cut off or not for the rest of his life. Less and less do we accept the concept of corrective gender assignment surgery for intersexed newborns. If my religion believes in ritualistic non-threatening face-cutting or tatooing of newborns, why is this wrong compared to circumcision? If we balk at piercing a newborn's ears, why is cutting off an envelope of skin off the penis--running the risk of damaging the sensitive glans--suddenly an issue of religious freedom and parents' autonomy? Why would we feel free to make a non-threatening and, quite frankly, cosmetic decision about a child's genitalia instead of allowing that child to make its decision later, even at age 11 or 15 or 18?

    We are at a place where we have to confront the sacred cows we hypocritically uphold and recognize that, in the context of our society, they are the product of tradition and nothing more. We circumcise at birth because we believe in it religiously or ritualistically or because we believe old wive's tales that no longer apply. Barring serious medical concerns, what reason is there against waiting?

    A parent will never have to live with a circumcised penis, but the child does. If he happens to enjoy it, then the situation is only incidentally a non-issue. But if the child doesn't enjoy it, he is the one who will have to live with his parents' cosmetic choices on his body for the rest of his life. Circumcised men are not disfigured, and I hate it when the circ/uncirc debate goes toward making circumcised men feel that way about their bodies, but they ARE robbed of choice, whether or not it is the choice they would have made anyway.

    Posted by: luminum | Jun 1, 2011 12:32:20 PM

  21. All I know is I was born jewish and wish I had my foreskin back. Sad I never had the option to chose for myself. :-/

    Posted by: Robert | Jun 1, 2011 12:33:51 PM

  22. The health benefits are so minimal as to be almost ridiculous when it makes people think there's like a double digit increase in benefit. The benefit is in the scheme of things small.

    The HIV studies were flawed. Go ahead, make your own decision on the facts.

    Posted by: Rob | Jun 1, 2011 12:35:31 PM

  23. If my clitoral hood (which is analogous to the foreskin) was removed against my will, I would consider that mutilation - and that is a considerably smaller piece of flesh than a foreskin.

    And you can't use the freedom of religion argument to defend circumcision because the procedure is essentially forcing that religion onto someone else.

    Posted by: beth | Jun 1, 2011 12:39:47 PM

  24. Circumcision should be banned except in the event of medical necessicity.

    One cannot claim religion for every time one wants to have power over (that is in this case chopping off another part of a person's organ without their consent and which is an irreversible procedure) another person. It's just wrong.

    Posted by: Thomas | Jun 1, 2011 12:40:59 PM

  25. I love my canadian uncut penis.

    recently, my friends had a baby. Jewish couple. Husband did not want the son circumcised, wife did. "it's our religion!" she cried. "it's his penis!" said the father.

    the father "won", but really, the kid won.

    don't cut your kid's foreskin off. please. don't. if he wants it removed later in life, he can get it done then.

    Posted by: Little Kiwi | Jun 1, 2011 12:43:12 PM

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