Tuesday, June 07, 2011

Proposed Circumcision Ban Could Lead to Important Religious Freedom Ruling in California

By Mike Dorf

According to this NY Times story, it appears that efforts to ban circumcision are meeting with greater success than in the past, at least in two California cities. If such a ban is enacted, it could lead to a ruling on an important question about religious freedom. I'll use the possible ban as a "teachable moment," here a moment to teach about the incredibly complicated law of religious freedom.

In 1990, in the Smith case, the Supreme Court held that there is no infringement on religious freedom if a state law that applies to everybody happens to impose a greater burden on people whose interest in engaging in the forbidden conduct (or refraining from the required conduct) is driven by a sense of religious obligation.  The particular case involved peyote: Oregon forbade peyote use by everyone, and the Court ruled that the Free Exercise Clause wasn't even implicated when Oregon applied that general prohibition to Native Americans who wanted to use peyote in their worship service.

The Smith rule says there are no religious exemptions from religion-neutral laws, but the Court itself soon made clear in the Lukumi case--which involved a local ordinance that forbade ritual animal sacrifice but targeted practitioners of Santeria--that the Smith rule does not apply when a law that is neutral on its face is in fact aimed at religion.  A law banning the wearing of yarmulkes wold violate Smith because it is not neutral on its face, but even a law banning the public wearing of head-coverings would be invalid under Lukumi if it could be shown that it was adopted for the purpose of targeting observant Jewish and Sikh men, and Muslim women.  The Lukumi test is tricky because it sometimes turns on subjective purpose, and for that reason, Justice Scalia, writing separately in Lukumi, expressed discomfort with this aspect of the rule, but even though the portion of Justice Kennedy's opinion in Lukumi that adopted a subjective test did not get 5 votes, I think that it probably is the law nonetheless--in light of equal protection cases that take the same perspective.  I'll return to Lukumi below.

Meanwhile, in 1993 a nearly-unanimous Congress responded to Smith by passing the Religious Freedom Restoration Act (RFRA), which "restored" the previous rule: RFRA said that whenever a federal, state or local law imposes a "substantial burden" on religious practice, the courts are authorized to grant an exemption from the law, unless the application of the law satisfies the demanding strict scrutiny test: the law must be the least restrictive means of furthering a compelling government interest.

In 1997, in the Boerne case, the Supreme Court held that RFRA was unconstitutional on federalism grounds, meaning that it cannot be validly applied to require states or localities to satisfy the strict scrutiny test when their neutral laws infringe religious freedom.  However, in a later case, the Court unanimously applyied RFRA to limit the federal government.  The later case involved a hallucinogenic tea.  Congress also passed another law cutting back on the Smith rule that is valid even as applied to states, but it relates to religious land use and institutionalized persons, so that law isn't relevant to the circumcision question.

Speaking of circumcision, let's look at the effort to ban it in California.  Apparently, the issue will be put on the ballot in San Francisco this fall and possibly on the ballot in Santa Monica next year.  The intiatives' author, Matthew Hess, was quoted in the NY Times story linked above saying that his ultimate aim is a federal statute that would ban circumcision. Another proponent of these measures, Jena Troutman, explained that they do not want their circumcision bans to allow exemptions for religious circumcisions.

So, what do we know?

1) In the extraordinarily unlikely event that a federal statute were enacted banning circumcision, and it contained no religious exemptions, it would still be subject to RFRA pursuant to the hallucinogenic tea case--unless Congress took the even more extraordinary step of fully or partially repealing RFRA.  I conclude below in point 4) that a circumcision ban would fail the RFRA test.  In any event, there is no realistic risk that circumcision would be banned for Jews and Muslims nationwide.

2) Should the San Francisco and/or Santa Monica bans pass, either or both could be invalidated under the Lukumi rule.  That's because Hess, the chief proponent of the ban, also runs a website called Foreskin Man (really, you can't make this stuff up), which features an antisemitic stereotype of a character called "Monster Mohel."  A "mohel" is a person who performs Jewish ritual circumcisions.  Monster Mohel's character page on Foreskin Man says that nothing excites him "more than cutting into the penile flesh of an eight-day-old infant boy. And after the glorified brit milah is complete, the delicious metzitzah b'peh provides the icing on the cake."  A "brit milah" is a ritual circumcision (brit means covenant) and metzitzah b'peh refers to a practice of some ultra-orthodox mohels of touching the circumcised baby's penis with the mohel's mouth.  This practice is controversial even within the ultra-orthodox community, in part because as it has been linked to the spread of disease.  So while there are legitimate reasons to oppose circumcision (more on that in number 4, below) and even stronger reasons to oppose metzitzah b'peh, the singling out of the latter in agit-prop for a ban on all circumcision, combined with the antisemitic imagery, suggest that Hess's role in organizing these initiatives could doom them in the courts under the Lukumi test, should they get enacted.

3) Of course, it's not obvious that Hess's motives should be attributed to the San Francisco and Santa Monica voters who might enact circumcision bans.  If we imagine a public-health focused campaign, then perhaps such ordinances would not be invalid under Lukumi.  But there is another possibility: A local circumcision ban could be held to violate the California Constitution.  A handful of state supreme courts interpret their state constitutions to provide no greater protection for religious liberty than the Smith rule provides.  But about half the states either have state RFRAs or interpret their state constitutions to provide the same protection as RFRA.  And then there are the states like California.  California does not have a state RFRA and the California Supreme Court said in 2004 that it is an open question whether the California Constitution imposes the Smith rule or a RFRA-like standard.  As far as I can tell, it remains an open question today. The enactment of either the San Francisco or Santa Monica ordinance could lead to a case in which the California Supreme Court would have to come down off of the fence.

4) Suppose the California Supreme Court were to say that its state constitution requires the RFRA approach. Could a ban on circumcision as applied to Jewish and Muslim ritual circumcision survive strict scrutiny?  I'll admit to not having studied the evidence of circumcision's costs and benefits closely.  (I have two daughters and no sons.)  A relatively neutral presentation shows both pros and cons for people who lack religious motivation.  Apparently the rate of non-religious circumcision in the U.S. has been falling in recent years, although it's hard to know whether this is a response to perceptions of health concerns or, weirdly, "fashion." In any event, from what I've read, the evidence of risks is certainly strong enough for a ban to survive the rational basis test but not strong enough for a ban to survive strict scrutiny.

So there you have it: Everything you ever wanted to know about religious freedom and circumcision but didn't know whom to ask.


egarber said...

I should know this, but what are the grounds for RFRA being valid as a federal standard?

My guess is that it relates to Congress's authority to "self regulate" (my term). Meaning, if Congress wants to be held to a certain standard by statute, that's what the courts will interpret -- which is different than the legislature declaring what the constitution itself means. Is that close?

Also, is there any room within constitutional privacy for a ban to be thrown out? I'm thinking that somewhere there's a line, beyond which parents own decision making for their children.

Michael C. Dorf said...


1) The hallucinogenic tea case doesn't spell out why RFRA is valid as to the federal government but the explanation is close to what you say. The idea is that Congress doesn't need any independent authority to impose RFRA on itself, because in this context RFRA can be understood as the withdrawal of regulation, so it is authorized by whatever provision (Commerce Clause, Spending power, etc) that authorizes the general exercise of power in the first place.

2) Parents have the right to make certain fundamental decisions for their children, such as whether to send them to public school or private school (if they can afford the latter). That usually includes medical decisions, at least within a range of reasonable options. These issues typically arise when parents object to vaccination or transfusions. There is a very large body of state case law and many fewer federal constitutional cases addressing such issues.

michael a. livingston said...

I'm assuming from the post that female circumcision was not an issue in the Colbdorf family.

I don't know the law very well, but this has got to make Jewish people a little bit uncomfortable, even if Mr. Hess (an unfortunate name) has the purest of motives. It is perhaps the proof of the late Richard Neuhaus's maxim, that where orthodoxy (small "o") is no longer required it will sooner or later be banned. That the issue is nominally "health" will not necessarily make people more comfortable either: recall that racism (in both Europe and the USA) was once defended on health grounds as well.

ben said...

fwiw, i dont think SCOTUS could strike this law down without overturning Smith. a ballot measure renders inoperable the subjective "intent" test. the motives of one nasty bigot with a website cannot be conferred upon ten million voters. boerne settles the matter as far as RFRA is concerned.

this ban on circumcision is exactly what Smith contemplates-- a neutral law of general applicability. as long as smith survives, this law is constitutional. there is no more free-exercise jurisprudence. Smith has caused the free-exercise doctrine to be subsumed by equal protection.

i am curious about one thing: if SCOTUS were inclined to reverse Smith in order to strike down the CA ban, i wonder if rather than striking down the ban entirely it could simply interpret the law to contain a religious exemption.

Hugh said...

Thank you. Very intersting.

"So while there are legitimate reasons to oppose circumcision ... and even stronger reasons to oppose metzitzah b'peh, the singling out of the latter in agit-prop for a ban on all circumcision, combined with the antisemitic imagery, suggest that Hess's role in organizing these initiatives could doom them in the courts under the Lukumi test, should they get enacted."

Some context. The Jewish aspect is entirely confined to Foreskin Man #2. Foreskin Man #1 has the caped (we don't know yet whether he's hooded) hero save a baby from being circumcised at the hands of "Dr Mutilator" who is even more monstrous than the mohel. This suggets that the cartoonist's - not to mention everyone else who supports the ban - motives are consistent with Smith.

While metzitzah b'peh is contentious, some hasidic mohelim in New York insist on doing it, despite one baby having died from herpes in 2004.

Hugh said...

"I'm assuming from the post that female circumcision was not an issue in the Colbdorf family."

All female genital cutting (no matter how minor, so tribal African horrors are not at issue here) is outlawed under 18 United States Code Section 116 - which raises the question whether such a ban breaches the 14th Amendment.

"Parents have the right to make certain fundamental decisions for their children, such as whether to send them to public school or private school (if they can afford the latter). That usually includes medical decisions, at least within a range of reasonable options."

Here, however, we have a decision to cut a normal, healthy, functional, non-renewable body part off. This is not considered a medical decison for parents in most of the developed world. It only ever has been in parts of the Englsih-speaking world, and Britain and the Commonwealth have virtually given it up (with no reported ill-effects). So it is hardly a decision of medical importance or urgency.

Michael C. Dorf said...

A quick reply to Ben's claim that a ballot initiative cannot be struck down based on the illicit motives of its sponsor(s): I don't think that's categorically true. For example, in the Prop 8 litigation there was substantial evidence offered in the district court on the nature of the advertising campaign for the Proposition in order to determine whether it was rooted in "animus" as that term is used in Romer. Now, presumably the evidence offered in the Prop 8 case to ascertain whether the public's views were informed by the supposed animus of the sponsors, so we might want to hypothesize a case in which the sponsor has an illicit motive that is never communicated to the public. Is Ben right then? I think this is an open question. We can think of the initiative process as proceeding in stages: Sponsor; petition signers; electorate. In the ordinary legislative context, if an illicit motive infects any necessary stage of enactment, the law is invalid. (See the Arlington Heights case). So there is at least a possibility that the sponsor's illicit motives (assuming they are illicit) would be alone sufficient to invalidate the resulting law, even if the public's motives are pure.

Hugh said...

There's another angle the ban campaign is aware of that you haven't addressed - the First Amendment right of the infant to choose and practice the religion of his choice as an adult. Normally this would not be affected by the parental practice of religion with him and on him - the physical traces of baptism wipe off, he can repudiate it, and it is as though it never happened - but circumcision is a special case, marking and diminishing his body for life.

So far as I know no religion demands that an adherent not be circumcised. (The nearest I can think of is Roman Catholicism refusing to ordain a eunuch.) But Sikhism does eschew all bodily modification, including hair cutting.

"A large part of the world's population does participate in rituals such as shaving of hair, circumcision, body piercing, etc. In this sense, Sikhs are in the minority. However, for a Sikh, acceptance of Nature's beautiful body is an important component of the Sikh value system. Acceptance of one's God-given physique without "improving" it by razors and scissors is a first step in accepting other laws, the foremost of which is becoming a universal being. Sikhs view others who engage in such rituals as people who carry unnecessary burdens in their lives; not as sinners or bad people."
- Questions and Answers (about Sikhism by Jasprit Singh) rom Akal Sangat (www.akalsangat.com)

A child of Jewish parents who embraced Sikhism as an adult could argue that his right to fully practice Sikhism had been breached, and his circumcision was "an unneccesary burden he carried in his life."

I don't know if this helps the question of animus, but only 3% of US circumcision is Jewish*. To attempt to ban it all in order to persecute Jews seems like a lot of wasted effort.

* 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.

Joe said...

"Here, however, we have a decision to cut a normal, healthy, functional, non-renewable body part off. This is not considered a medical decison for parents in most of the developed world."

A bit of perspective is helpful here. I don't think a foreskin is really much of a "body part" as the term is usually used. Is hair a body part too? Fingernails? Yeah, technically, but really.

And, it is a "medical decision," even if the decision made is not to have it done. The need is open to debate, but cleanliness and so forth is a rational reason to decide to have it done.

As to the right of children to refuse or later revoke religious exercise, that's of limited value. Children can't simply refuse to go to Catholic School. Years of Catholic school or other things that are allowed will in various ways affect people more than a circumcision would. I can speak from experience here, fwiw.

Any number of medical procedures done during childhood can have long-lasting effects. The horror that this one ("body part"!) arises seems to me overblown, but such beliefs are hard to put to objective tests. Still, singling out this procedure, particularly w/o a religious exception, seems very questionable to me.

Hugh said...

@Joe: I specifically said "non-renewable" because I've heard the "hair" and "fingernails" argument before (many, many times). Clearly, that makes a big difference.

Men with foreskins certain do consider them a body part, and a valuable one. Shakespeare called it "My sweet ounce of man's flesh" (LLL, III, i, 142) But regardless of that, who but the owner has any right to decide how important it is to him?

"Cleanliness and so forth" is not a rational reason to decide to cut a normal etc. part off someone else's body. We don't cut any other such part off for that reason.("Cleanliness" is one of the many reasons given for female cutting, too.)

In most of the world, there is no decision. Infant circumcision is not considered. The experiment has been done: circumcision was nearly universal in Australia and New Zealand, now it's almost unknown in New Zealand and some Australian states (with more than four out of five babies going home whole in the others) and there has been no outbreak of any of the ailments it ws supposed to be good for. (A generation of men has grown up not looking like their fathers, and no problems there, either.)

It is true that some religious education has lifelong deleterious effects, but that's a different issue, and the adult can remedy most of the damage by their own efforts. It is universally agreed that children benefit from some education and the only decision is about what kind.

What's very questionionable is singling out this body part for arbitrary removal. You have not explained how the parents' right to practice their religion on the child trumps his right as an adult to choose and practise his. In the past the question did not arise, generation after generation practiced the faith of their fathers without question, but times have changed.

And isn't there something very strange about this topic, how one moment we're talking about law, the next, religion, the next, medicine? Circumcision is an intrusion looking for a justification.

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