California circumcision ban and the free exercise of religion

by Russell's Rants

Originally published June 6, 2011

8ed619eaa9453ae6fb74a0954d1e5a9bVoters in San Francisco and Santa Monica may soon decide whether their cities will ban circumcision for boys from birth through the age of consent – thus making illegal the practice of religious circumcision which is required in Judaism and other religions for all boys within 8 days of birth. Whatever the results of these ballot initiatives, any such ban will face judicial review and likely be struck down as a violation of the First Amendment’s Free Exercise Clause. Even more, the movement to ban circumcision appears to be some kind of new age mirror-image of the type of social tinkering usually practiced by social conservatives – and often viewed as outside the proper mandate of government action. And the fact that backers of the ban recently produced a cartoon pamphlet filled with grossly anti-Semitic imagery does nothing to calm the suspicion that the movement is fueled by cultural bigotry – or certainly cultural ignorance at the very least.

908af340e9a6f1c2a112e91866946af1A San Diego-based group called MGMBill.org (MGM for “Male Genital Mutilation”) has gained enough signatures to place its circumcision ban on the November 2011 ballot in San Francisco – and is apparently looking to do the same in Santa Monica. The president of MGMBill.org, Matthew Hess, describes himself as “trying to be pro-human rights” and couches his argument for the ban in terms of equal protection, so that boys and girls will both not be subject to genital mutilation. Indeed, he lists himself as a member of Amnesty International and describes himself as a “rabid” activist. His Santa Monica-based cohort, Jena Troutman, describes her motivation for sponsoring the initiative as follows: “My goal is to educate parents to give them a choice. Because our babies are perfect as they come out.” Yet, the bans have no exceptions for religious observance, so the proposition that the proposed laws offer a “choice” is inaccurate – they offer a blanket ban to be enforced by a fine up to $1,000 and/or a year in county jail. In other words, these initiatives would criminalize what has been considered a duty of Jews (and Muslims as well) for thousands of years.

I have seen no independent polling, but highly unscientific internet polling by the San Francisco Chronicle found 61% opposed, but a similar poll by KTLA News in Los Angeles gave opposite results with 71.4% in favor.

Legal debate centers on the U.S. Supreme Court’s decision in the “peyote case” in Employment Division v. Smith (1990). There Justice Scalia refused to use the Free Exercise Clause to strike down what was otherwise a neutral Oregon law that refused to provide unemployment compensation to a member of a Native American tribe who was fired and then refused unemployment compensation for use of the illegal drug. The High Court held that it did not matter if the hallucinogenic drug had been used for generations as part of a religious ritual because the government had the right to enforce drug laws that might incidentally affect religious practice. Scalia divined a so-called “hybrid” test that required the infringement of some other constitutionally protected right (like, say, freedom of speech) in addition to religious liberty before Free Exercise Clause would kick in to invalidate the law as an unconstitutional burden on religious practices. Since the ban on circumcision would not only implicate the right of religious freedom, but also parenting and educational rights (which in the case of the Amish were sufficient to gain them religious exemption from public education), some believe the proposed circumcision laws also be constitutionally suspect under this line of precedent.

My experience is relative to Jewish custom, and my view is that the circumcision ban goes to the heart of the Free Exercise Clause because it would prevent Jews from being “Jewish,” in other words, from fulfilling their covenant with God as mandated to Abraham and passed down to all generations since. As well explained by a doctor, who is also a certified mohel,

That circumcision is so central to Judaism is demonstrated by the fact that even the most unobservant Jews insist on circumcising their male children. Any child born to a Jewish mother is Jewish according to Jewish law. However, circumcision is seen as another vital component that confirms a male child as Jewish. It seems to be regarded by almost all Jews, observant and unobservant, as a defining feature of the religion; it is seen as essential to make the child a Jew, an idea that is found in the Midrash, the Jewish folklore.

As simply and straightforwardly explained in The Torah, A Modern Commentary (Union of American Hebrew Congregations 1981),

Circumcision, so important to Jews and sometimes controversial in their history, makes Abraham and his descendants partners in the obligations of the covenant. . . . Few, if any, Jewish practices are more significant than berit milah, the covenant of circumcision. While it does not make a child born to Jewish parents into a Jew, it confirms his special relationship to the God and the traditions of Israel.

The reference to “sometimes controversial” is to the fact that the Jewish practice of circumcision was banned in ancient Greece and Rome, used as a means of identification of Jews in Nazi Germany and highly discouraged in Soviet Russia – all of which is pretty bad company to keep!

In his Employment Decision ruling, Justice Scalia wrote, “if prohibiting the exercise of religion. . . is. . . merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended.” He expanded on that thought as follows:

. . . [T]he “exercise of religion” often involves not only belief and profession but the performance of (or abstention from) physical acts: assembling with others for a worship service, participating in sacramental use of bread and wine, proselytizing, abstaining from certain foods or certain modes of transportation. It would be true, we think (though no case of ours has involved the point), that a state would be “prohibiting the free exercise [of religion]” if it sought to ban such acts or abstentions only when they are engaged in for religious reasons, or only because of the religious belief that they display. It would doubtless be unconstitutional, for example, to ban the casting of “statues that are to be used for worship purposes,” or to prohibit bowing down before a golden calf.

So under Scalia’s formulation, a law that banned the use of raw eggs in making bread might be constitutional, but one forbidding the use of egg bread as part of a blessing would not be. This may be too permissive a standard to safeguard First Amendment religious freedom. What about a generally applicable, religion-neutral law that forbade sprinkling a baby’s head with water before his or her first birthday – thus effectively ending Baptism – or that forbade private gatherings of more than 9 people on Friday night or Sunday morning – thus making it impossible to celebrate Shabbat services or Sunday Mass? What Scalia may have missed is a law that might appear neutral on its face but that intentionally or unintentionally severely restricts one’s very ability to practice one’s religion.

Sadly, the MGMBill.org proponents of the ban may have accidentally revealed the true intent of the law by publishing their comic book filled with what the Anti-Defamation League characterized as “grotesque anti-Semitic imagery, including an Aryan-appearing super-hero rescuing a baby boy at a bris from a devilish Jewish cabal about to circumcise him.

It is difficult to see that the proposed ban is even possessed of a rational basis, which is a necessary prerequisite to justify the exercise of police power. Rather, it is based upon the cultural biases and personal preferences – and complete lack of sensitivity – of their proponents, which subjective beliefs cannot form the basis for governmental action – and which used to be called legislating morality.

But even putting the perceived animus, or at a minimum cultural bias aside, the point here is that Jews, and others, cannot practice their religion without fulfilling their circumcision covenant. Indeed, in Genesis, the penalty for failure to circumcise is “that person shall be cut off from his kin; he has broken My covenant.” Pretty serious stuff! The proposed circumcision bans in California would not just have an “incidental effect” on Jewish life; they would fundamentally redefine its observance as a criminal act. If this would not prohibit the free exercise of a religion, it is hard to think of anything that would.

UPDATE: June 6, 2011. According to an article in the Jewish Journal published at 2:28 p.m. this afternoon, the sponsor of the Santa Monica initiative drive has abandoned her efforts to put the ban on the ballot.

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