In early October, California Gov. Jerry Brown signed a law that prohibits local governments from banning the practice of male circumcision. Unless challenged in the courts, this new state law appears to resolve a year-long debate that caught the attention of the U.S. Congress. At a time when victories for the rights of religious individuals seem too rare, this California law should be applauded.
Circumcision is a sacred religious practice as old as the first book of the Bible. In Genesis, this religious ritual was performed as a sign of the covenant between God and Abraham, which passed to his descendants. To members of the Jewish faith today, it continues to be an important religious commandment. At eight days old, Jewish male infants are circumcised by a "mohel," a person specially trained and authorized to lead the "bris" ceremony before a gathering of family and friends. Muslims also perform circumcision as a religious ritual. Religion aside, many medical professionals recommend circumcision for health reasons.
Although male circumcision has been practiced by religious groups for millennia, activists recently have called on state and federal lawmakers around the country to ban the practice. They rely in part on equality arguments — because female circumcision is already illegal under federal law — and in part on international human rights law, specifically a child's right to autonomy and physical integrity. They argue that circumcision is painful, potentially damaging to a vital organ, decided by parents for unwilling babies, and may reduce pleasure later in life.
Despite these arguments, no state legislature has yet passed a ban on male circumcision. With legislative efforts failing, activists turned to California's referendum process and, earlier this year, placed a measure on the ballot in San Francisco.
The San Francisco measure was couched as the "Male Genital Mutilation" initiative. If passed, it would have banned the practice entirely for those under 18 years of age, making it a crime, a misdemeanor punishable by a $1000 fine and a year in jail. The proposed ban contained no exemption whatsoever for religious reasons.
The proposed ban had potentially serious constitutional problems. First, it contained an exemption for a "clear, compelling and immediate medical need." So a circumcision could be performed without penalty for a secular medical reason, but not for a religious one.
Second, it stated that "no account shall be taken of … any belief … that the operation is required as a matter of custom or ritual" — an intentional poke in the eye to those who practice circumcision because of religion. A prominent proponent of the ban created an online comic that contained anti-Semitic imagery, which reinforced the conclusion that the ban was targeted not just at religion generally, but at a Jewish ritual specifically.
Both problems likely mean that the government would have faced the difficult task of proving a "compelling governmental interest" for the ban to survive a First Amendment challenge.
A broad coalition — including an unlikely combination of Jews and Muslims — asked the courts to stop the referendum. This summer, even before the state-level law was enacted, a Superior Court judge struck the San Francisco measure from the ballot before the vote. Had the court not done so, members of the U.S. Congress were ready to step in to try to protect explicitly the religious rights of Jews and Muslims.
The Superior Court reached its conclusion for reasons that had nothing to do with the First Amendment. Instead, the judge cited the mundane doctrine of "preemption" — the State of California's regulation of health care professionals and medical procedures (including circumcision) preempts whatever regulation in that area the local municipalities may attempt.
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For now, with the court ruling and the state law, observant Jews and Muslims in San Francisco — and across California — are breathing two sighs of relief. The state preempting its cities on health matters may be an unlikely and less-than-favorable basis for protecting religious liberty. But supporters of religious liberty can declare victory here. We'll take what we can get, especially in California.
Hannah C. Smith is a member of the Deseret News Editorial Advisory Board and Senior Counsel at The Becket Fund for Religious Liberty, a public interest law firm that defends religious liberty for people of all faiths.