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.
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?
CONTINUED, AFTER THE JUMP…
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.
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