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.