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Response from Richard W. Garnett

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?

As a general matter, it is – and it should be – a fundamental right of parents to make decisions regarding the education, formation, and religious training of their children. To be sure, no right is absolute, and even so foundational a freedom as religious liberty is not a license to cause serious harm to others. That said, the question presented by the San Francisco proposal strikes me as an easy one: The proposed law would outlaw an ancient and core ritual of a religious community and given the fact that, the overheated rhetoric of many of the proposal's supporters notwithstanding, the practice in question is not seriously harmful, the law should, at the very least, include a religious exemption. Yes, reasonable people disagree about the health-related costs and benefits of circumcision, but this disagreement makes it all the more important to accommodate those for whom it is an important religious practice.

Photo of Richard W. Garnett

Author: Richard W. Garnett

Richard W. Garnett is an Associate Dean and Professor of Law at the University of Notre Dame School of Law. Professor Garnett teaches and writes about the freedoms of speech, association, and religion, and also about constitutional law more generally. He is a leading authority on questions and debates regarding the role of religious believers and beliefs in politics and society. He has published widely on these matters, and is the author of dozens of law-review articles and book chapters. His current research project, Two There Are: Understanding the Separation of Church and State, will be published by Cambridge University Press. He is the founding director of Notre Dame Law School’s new Program in Church, State, and Society, an interdisciplinary project that focuses on the role of religious institutions, communities, and authorities in the social order.

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