During one of my frequent visits to Tablet: A New Read on Jewish Life, I came across this article, entitled When Anti-Circumcision Turns Anti-Semitic. The article is interesting, discussing whether certain cartoons produced by the anti-circumcision movement in the Bay Area are Anti-Semitic – Marc Tracy thinks that they are and convinced me. One of the comments to the article particularly interested me:
This should not even be allowed on any ballot measure as it will be deemed illegal as it interferes with seperation of church and state. it will never see a vote. I am very liberal and this is just a ballot hatred. Tis is not what san francisoc is about. It’s disgusting!
Typos aside, this brings up a very interesting question: is outlawing circumcision constitutional? As I frequently find with “core” American political dogma (in particular relating to freedom of speech, religion, etc.), there is significant confusion about what the precise parameters of our “rights” are. For example, this commenter believes that a ballot measure outlawing circumcision would interfere with the “separation of church and state.” The separation of church and state is found in the First Amendment to the Constitution of the United States and reads that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….” Of course, some intermingling of church and state has always been permissible in the United States – the best examples are blue laws. Additionally, the United States gives billions of dollars in tax exemptions to religious institutions exempting contributions to churches (and other houses of worship). Interestingly, because of the structure of the tax exemption of contributions to churches, they cannot endorse political candidates – another example of the government intermingling in the “god business.” Finally, several states maintain “Kosher Laws,” including New York, and at least 16 other states define the term “kosher.” In Miami-Dade County, Florida, it is “unlawful to offer any food product for sale which is falsely represented to be Kosher”; in Broward County, Florida, “sellers of kosher food [must] hold a Broward County Kosher Specialty Regulatory License.” Of course, thousands of municipalities, quasi-governmental agencies, and both federal and state governments display religious artifacts during the month of December – typically Hanukkah menorahs, X-mas trees, and nativity scenes.
Clearly, the United States government (and many other sub-governmental units) can (and does) involve itself with religious practice, institutions, etc.; we must question whether this particular incident would be unconstitutional. Paul Horwitz (of the University of Alabama) argues in Petition Drive for Anti-Circumcision Ballot Initiative in San Francisco that:
Under prevailing Free Exercise jurisprudence, the law as written strikes me as neutral and generally applicable. The more pressing question is whether it nevertheless is unconstitutional because, under the Supreme Court’s decision in Lukumi Babalu Aye, it creates an exemption for non-religious circumcisions but none for religious circumcisions and thus can be read as not truly neutral or generally applicable.
Mr. Horwitz concludes that “the law might be constitutional despite its obvious disproportionate effect on those who seek circumcisions for religious reasons.” I think that there can be no reasonable disagreement about this, although the final form of the language and structure of the law could be dispositive on the constitutionality of any circumcision ban. Compare the language in 18 U.S.C. § 116 (federal law banning female circumcision) which provides that application shall take
no account . . . of the effect on the person on whom the operation is to be performed of any belief on the part of that person, or any other person, that the operation is required as a matter of custom or ritual.
To the language in Church of Lukumi Babalu Aye v. City of Hialeah, in which the city of Hialeah, Florida, attempted to ban animal sacrifices in connection with communities that practiced Santeria. The Supreme Court explained:
Ordinance 87-52 defined “sacrifice” as “to unnecessarily kill, torment, torture, or mutilate an animal in a public or private ritual or ceremony not for the primary purpose of food consumption,” and prohibited owning or possessing an animal “intending to use such animal for food purposes.” It restricted application of this prohibition, however, to any individual or group that “kills, slaughters or sacrifices animals for any type of ritual, regardless of whether or not the flesh or blood of the animal is to be consumed.” The ordinance contained an exemption for slaughtering by “licensed establishment[s]” of animals “specifically raised for food purposes.” Declaring, moreover, that the city council “has determined that the sacrificing of animals within the city limits is contrary to the public health, safety, welfare and morals of the community,” the city council adopted Ordinance 87-71. That ordinance defined sacrifice as had Ordinance 87-52, and then provided that “[i]t shall be unlawful for any person, persons, corporations or associations to sacrifice any animal within the corporate limits of the City of Hialeah, Florida.” The final Ordinance, 87-72, defined “slaughter” as “the killing of animals for food” and prohibited slaughter outside of areas zoned for slaughterhouse use. The ordinance provided an exemption, however, for the slaughter or processing for sale of “small numbers of hogs and/or cattle per week in accordance with an exemption provided by state law.” All ordinances and resolutions passed the city council by unanimous vote. Violations of each of the four ordinances were punishable by fines not exceeding $500 or imprisonment not exceeding 60 days, or both.
Perhaps most interestingly, the Supreme Court specifically mentioned that certain exemptions to the ordinances “seem[] intended to cover [i.e., exempt] Kosher slaughter” which demonstrated to the Court the biased and harassing nature of the ordinances. The Supreme Court’s analysis is enlightening, and this case remains a bedrock of constitutional free exercise jurisprudence – on that basis alone I recommend that each reader take the time to read the case in its entirety.
Finally, if female circumcision can be legally and constitutionally banned, it seems implausible to argue that male circumcision could not likewise be legally banned. Thoughts or Comments are appreciated, as always.
I am with you until that last paragraph, Jason. The fact that female circumcision can be banned has no effect on banning male circumcision. I am guessing you are relying on the equal protection clause here, but it is not applicable because the two actions are substantially different. A state may pass bans on men and women only if the two bans are substantially similar … or it needs to meet intermediate scrutiny, which it won’t in this case, but let’s leave that one for another day.
For example, a state may pass the following law: ” Neither men nor women shall operate a six-axle vehicle without a Special License.” Here the drafter (me!) made the ban identical so there’s no issue.
On the other hand, a state may not pass the following law:
“1. Men shall not drive a six-axle vehicle without Special License;
2. Women shall not drive a four-axle or six-axle vehicle without Special License.”
One can argue that the operative word here is “drive” and so the two restrictions are identical. But the real weight is not on “driving” per se, but on what exactly is being driven. This statute would almost certainly be found unconstitutional.
Similarly, a ban on circumcising women does not permit a ban on circumcising men because the weight is not on “circumcising” per se ban on things that are being circumcised.
Those happen to be very different body parts.
[...] also here) and, more recently, about how religion is treated by our courts (see also Jason’s post on circumcision). When we expect personally devout political leaders to check their God at the door, we effectively [...]
Female circumcision is a hostile act. Male circumcision, besides a religious act, was quite common in the U.S. years ago and was done for the sake of cleanliness. Tribes in Africa that traditionally circumcise male children have up to 50% less std’s and aids infections. Tribes who drifted away from this practice are now going back to it. The Bay Area is a very bizarre place, with very heavy homosexual influences and other wacky and perverse concepts and ideas. With all the problems the country has, not to mention the cities and states, passing laws about circumcision is what S.F. thinks is important! Point made!