The Proposed San Francisco Circumcision Ban: Constitutionally Valid?

I'm sure most readers of this blog know by now that a measure to ban male circumcision for those under age 18 has qualified for the San Francisco ballot.   Here is a copy of a proposed ordinance  in Santa Monica,California that is said to be identical to the proposed San Francisco ordinance.  Here is the text of the SF ordinance as shown on the website of its sponsors.

The obvious question is whether these measures, if enacted, would constitute a breach of the guarantee of free exercise of religion.  Note that the only exception to the flat ban is when it "is necessary to the physical health of the person on whom it is performed because of a clear, compelling, and immediate medical need with no less-destructive alternative treatment available, and is performed by a person licensed in the place of its performance as a medical practitioner."  Note also that in applying that exception, "no account shall be taken of the effect on the person on whom the operation is to be performed of any belief on the part of that or any other person that the operation is required as a matter of custom or ritual."  Under the rule of Employment Division v. Smith a law that prohibits the exercise of religious conduct is valid so long as the law is of general applicability and does not single out religious conduct for disfavorable treatment.  Defenders of the proposed anti-circumcision laws will claim that the narrow exception is only for compelling health reasons and that the law is otherwise of general applicability.  But there are two reasons to question this defense.  First, the qualification to the exception makes it clear that the law is designed to ensure that it will apply to circumcisions that are the product of religious belief.  That impeaches the claim that this is really of general applicability.  While it is not constitutionally required to afford an exception for religiously motivated circumcisions, the specific prohibition of such a claimed exemption surely is evidence of a motive to suppress this religious conduct.  An analogue would be a law banning all consumption of wine except where there is a compelling need to imbibe wine for health reasons, but on no account is the exception to be interpreted to apply to those instances where a person's emotional health is in danger by reason of the inability to participate in any ritual consumption of wine.  Four members of the Court (in the Hialeah case, involving the Santerians) thought that evidence of a purpose to suppress religious conduct was sufficient.  That purpose is evident here, though it is not the only purpose.  Second, even if purpose analyis is irrelevant, one would like to know the proportion of all infant circumcisions that are religiously motivated.  To the extent that is a very high proportion, the argument that the effect of the law is neutral diminishes.  According to this article in the New York Times the proportion of circumcised males in the U.S. is about 80%, but the rate of new circumcisions has dropped dramatically.  

According to this poll of Wall Street Readers, 77% of the respondents are opposed to the San Francisco proposal.  I know -- it's hardly a scientific sampler of public opinion. 

UPDATE:  A commenter wonders whether the hybrid rights argument has traction here.  Employment Division noted that strict scrutiny should apply when a free exercise claim is joined with another claim of a constitutional violation, and cited Yoder  for that proposition.  Yoder, of course, involved a claim that the Wisconsin compulsory education law violated both free exercise and the fundamental liberty to direct the upbringing of one's children.  The Ninth Circuit's view of the trigger of this hybrid rights analysis is that each claim must be colorable.  Thomas v. Anchorage Equal Rights Commission, 165 F. 3d 692 (9th Cir. 1999); Miller v. Reed, 176 F. 3d 1202 (9th Cir. 1999).  So, the question becomes whether the claim that a parent has a fundamental right to direct the upbringing of their male child by subjecting him to religiously inspired circumcision is colorable.  Certainly the claim is colorable; the ultimate question of whether the government has a compelling interest in prohibiting a parent from so directing the child's upbringing is debatable.  So, I think the answer is that this may well one of those rare instances where the hybrid rights idea operates to impose on San Francisco (or any other government that enacts such a law) the burden to prove that it is necessary to ban circumcision in order to achieve a compelling government interest.  

Comments

[Tony]

You state that you don't know the percentage of ritual circumcisions, so how can you declare the claim of general applicability impeached? The purpose of the law is to protect all healthy male minors from this unnecessary surgery they may not want, not just those boys with religious parents. The rate of circumcision, in general, is lower today than in the past, but how much lower would it have to be for religious belief to be the primary motivation of parents? The U.S. population is not 80% Jewish or Muslim. Even if we use recent statistics for California, the circumcision rate is still approximately 33% of all newborn males. I doubt the combined Jewish and Muslim population of California approaches 33%.

I don't think your wine comparison works, either. The law under consideration prohibits the circumcision of a healthy child by proxy consent. It doesn't prevent individuals from choosing circumcision for themselves, for religious or any other reasons. This protection should fall under the state's power to protect individual citizens from harm. The federal and California anti-FGM laws use the same language, yet no one challenges those on First Amendment grounds.

[Hillel Levin]

I'm skeptical. Clarifying that there is no religion exception does not prove, or even suggest, that it is motivated by anti-religious sentiment.

That said, I wonder whether a hybrid rights argument to trigger strict scrutiny would be applicable here--the additional right being that of the right of a parent to direct the upbringing of a child. Thoughts on that?

[Hugh7]

The proposed law is cut-and-pasted (anatomically mutatis mutandis) from the existing law outlawing ALL female genital cutting, no matter how minor, and with no exemption for religion or culture. That is the probable reason for the reference to religion.

In 2008 I calculated that the proportion of religious circumcisions is about 3%

(The population of the US was 300,282,868 on November 26, 2006 (according to http://www.census.gov/population/www/popclockus.html) of whom 6,155,000 (2.05%) were Jewish (according to http://www.jewishvirtuallibrary.org/jsource/US-Israel/usjewpop.html). Assuming the same sex ratio (50:50) for both, and conservatively estimating that 100% of Jewish males and 60% of gentile males are circumcised, that would mean 3,077,500 Jewish males are circumcised and 90,084,860 gentiles, giving a maximum of 3.30% of US circumcision being Jewish. Muslim boys are usually circumcised, but at a later age.)

The charge that this bill is intended as an attack on religion fails. It will in fact restore to males their First Amendment right to choose their own religion without having one pre-emptively carved into their flesh, and their human right to bodily autonomy.

At least one religiou, Sikhism, values the intact body, restricting even the cutting of hair, but it does not, so far as I know, exclude circumcised converts. The idea is not unthinkable: Catholic priests may not be castrati. So infant circumcision could, in theory, prevent him exercising his First Amendment right.

No need to look for sinister motivations. This bill is in fact motivated by some men's resentment that this was done to them, for whatever reason, and they want to protect future men from the same resentment.

Some have particularly good reason, when their circumcisions were botched. A Richmond VA, pediatric urologist reports repairing 1600 botched circumcisions in three years, suggesting >13% are badly enough botched to require surgery. But we do not known what proportion go unnoticed until adulthood and impaired sexual functioning.

[Michael Helfand]

I think the hybrid rights analysis, as proposed by Hillel, is pretty compelling. In fact, Judge Kleinfeld of the Ninth Circuit appied the hybrid theory to this precise hypothetical in a dissent he filed back in 2000. For those interested, I blogged about it over at the Law, Religion, & Ethics Blog: http://lawreligionethics.org/2011/05/why-san-francisco-ballot-measure-proposing-circumcision-ban-is-unconstituonal/.

[Marc DeGirolami]

Thanks for the terrific post and illuminating comments. I've posted a reaction over at Mirror of Justice, though I'm still trying to grapple with the good arguments here and at L,R&E.

http://mirrorofjustice.blogs.com/mirrorofjustice/2011/05/circumcision-and-hybrid-rights.html

[Larry Ross]

It's interesting to compare this to Hialeah (508 U.S. 520 (1993)). On one hand, it is easily distinguishable. In that case, the city crafted a local ordinance in order to ban a religious practice (animal sacrifice), while still allowing similar, secular practices (e.g. BBQ). The proposed S.F. ordinance would ban all circumcision, regardless of whether it was being done for religious or secular reasons. So, at first glance, Hialeah doesn't seem to apply.

On the other hand, if we broaden our scope of inquiry, it may be that Hialeah would win the day. The proposed ordinance singles out one specific procedure - circumcision - a procedure which has a strong association with religious practice (even if most circumsions are secular). But ordinance doesn't prohibit elective procedures on children generally. For instance, it doesn't do anything to prohibit parents from piercing their infant's ears (which can sometimes lead to infections). This underinclusiveness could lead the court to see the proposed ordinance as targetting as a single practice because it is strongly identified with religious practice, and specifically with minority religious practice, as was the case in Hialeah.

[Frank O'Hara]

"Defenders of the proposed anti-circumcision laws will claim that the narrow exception is only for compelling health reasons and that the law is otherwise of general applicability."

This law is written to apply to all clases of citizens therefore it is of general applicability. Essentially, there are no exemptions. Providing medical treatment when necessary does not affect the general applicability as it could affect anyone regardless of religion or other factors.

"While it is not constitutionally required to afford an exception for religiously motivated circumcisions, the specific prohibition of such a claimed exemption surely is evidence of a motive to suppress this religious conduct."

No, affording a religious exemption would violate the 14th Amendment's "Equal Protection Clause" which requires that all laws be applied equally across all demographics.

"Second, even if purpose analyis is irrelevant, one would like to know the proportion of all infant circumcisions that are religiously motivated. To the extent that is a very high proportion, the argument that the effect of the law is neutral diminishes"

Jews are 1.75% of The US population and Muslims are an even smaller portion. These are the only two religions that support male circumcision. So, about 3% of all circumcisions in The US are religiously motivated. Christians are specifically forbidden to circumcise per The New Testament.

"According to this poll of Wall Street Readers, 77% of the respondents are opposed to the San Francisco proposal. I know -- it's hardly a scientific sampler of public opinion."

Yes, very unscientific and very inaccurate. The 2009 infant circumcision rate was 32.5% in The US. This probably is a much better indicator.

"So, the question becomes whether the claim that a parent has a fundamental right to direct the upbringing of their male child by subjecting him to religiously inspired circumcision is colorable."

Well, Professor Massey, please explain to me how the 1996 Female Genital Mutilation act is legitimate and defensible. It gives no quarter for religious beliefs and specifically prohibits any challenges based on religious belief. These male circumcision bans should have no religious exemption based on The Equal Protection Clause contained in The 14th Amendment to The US Constitution.

"Certainly the claim is colorable; the ultimate question of whether the government has a compelling interest in prohibiting a parent from so directing the child's upbringing is debatable."

It is not debateable at all. Every year, children die as a direct result of their circumcisions. Three studies have quantified this. Studies in 1979, 1989 and 1999 found 228 - 230 infant circumcision deaths in the previous years and a 2009 study found 118 deaths. The fall in deaths in 2009 is attributible to the falling infant circumcision rate (Approximately 66$ to 32.5% in 2009). It would follow that if the rate of procedures fall, the deaths would also correspondingly fall. However, the RATE has remained the same at approximately 1 death per 7,000 procedures.

The government has a compelling interest in preventing the deaths of it's children/citizens.

"So, the question becomes whether the claim that a parent has a fundamental right to direct the upbringing of their male child by subjecting him to religiously inspired circumcision is colorable. Certainly the claim is colorable"

Please explain to me why it is not permissible to circumcise a girl for religious reasons or why only the male prepuce is the only body part that can be removed electively and without justification. I see a tremendous conflict with The Equal Protection Clause.

Why is the MALE foreskin the only body part that can be amputated without justification (simply on demand) or pressing medical need?

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