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Response from Alan E. Brownstein

Discussion Question: San Francisco circumcision ban to appear on November ballot. Who should decide such questions?

A proposal to ban the circumcision of male children in San Francisco has been cleared to appear on the November ballot, setting the stage for the nation's first public vote on what has long been considered a private family matter. If the measure passes, circumcision would be prohibited among males under the age of 18. The practice would become a misdemeanor offense punishable by a fine of up to $1,000 or up to one year in jail. There would be no religious exemptions. Supporters of the ban say male circumcision is a form of genital mutilation that is unnecessary, extremely painful and even dangerous. They say parents should not be able to force the decision on their young child. What do you think? Who should decide such questions?

Since the focus of these discussions is on religious liberty, we should look at this question from that perspective.There is no doubt that male circumcision is a religious requirement for Jews. It is explicitly commanded in Genesis. The rite (brit milah) is performed when a baby boy is eight days old.

One would think that in a country ostensibly committed to religious freedom, the state cannot punish religious individuals for engaging in a practice that is mandated by their faith without satisfying some serious burden of justification. That is, the state must have a very good reason for criminalizing the exercise of religion. If this ordinance is passed by the voters of San Francisco, it will test the accuracy of this proposition.

A constitutional challenge to the ordinance would be brought under the Free Exercise Clause of the United States Constitution and Article I § 4 of the California Constitution. The claim brought under the federal Free Exercise Clause might be dismissed out of hand. Since 1990 when the United States Supreme Court decided Employment Division v. Smith, the exercise of religion receives virtually no constitutional protection whatsoever against a neutral law of general applicability. Unless the law at issue singles out a particular practice for prohibition and punishment because it is being engaged in for religious reasons, the Free Exercise clause cannot be the basis for challenging the constitutionality of the law. A ban on male circumcision is a neutral law of general applicability if it applies across the board to anyone who chooses to have their child circumcised without regard to the religious or secular reason for doing so. Accordingly, San Francisco might not have to justify its law under any serious level of judicial scrutiny at all. The law would be upheld as long as it is minimally rational – a very deferential standard of review that almost never requires the invalidation of a law.

What about a constitutional challenge brought under Article I, § 4 of the California Constitution? Would this state constitutional provision require courts to apply a more rigorous standard of review to the law? Amazingly, the answer to this question is that we do not know. There is no doubt that the California Supreme Court could interpret the state constitution to provide more protection to religious practice than religious exercise receives under the federal constitution. The California Supreme Court might also decide to follow the reasoning of the United States Supreme Court and adopt the holding of Employment Division v. Smith. Yet during the twenty years that have passed since the Smith decision was handed down, the California Supreme Court has repeatedly declined to resolve this issue – although it had the opportunity to do so in several cases.

Let me clear that I believe an ordinance banning male circumcision for minors would not withstand rigorous judicial scrutiny. The arguments for banning this practice are long on rhetoric and short on substance. The question is whether or not the ordinance would be subjected to meaningful judicial review. In a country ostensibly committed to religious freedom the answer to that question for federal constitutional purposes is probably "No." The answer for state constitutional purposes is "We don't know."

Photo of Alan E. Brownstein

Author: Alan E. Brownstein

Alan E. Brownstein, a nationally recognized Constitutional Law scholar, teaches Constitutional Law, Law and Religion, and Torts at UC Davis School of Law. While the primary focus of his scholarship relates to church-state issues and free exercise and establishment clause doctrine, he has also written extensively on freedom of speech, privacy and autonomy rights, and other constitutional law subjects. His articles have been published in numerous academic journals, including the Stanford Law ReviewCornell Law Review,UCLA Law Review and ConstitutionalCommentary. In 2008, Liberty was privileged to recognize Professor Brownstein for his passion and dedication to religious freedom at its annual Religious Liberty Dinner in Washington, D.C.

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