Legal Commentary

News comes to me of a petition drive for a ballot initiative that would ban circumcisions in San Francisco.  Its supporters say the law will "make it illegal, except in the case of  extreme medical emergency, to circumcise male infants and minor children" in the City and County of San Francisco.  The proposed language can be found here.  It would ban circumcisions for minors except where "the operation 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 licensed medical practitioner.  It further states that "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."

This raises some interesting questions.  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.  Under Ninth Circuit law, however, the existence of a single exemption, tailored to a specific concern like a medical emergency, may not suffice to rebut the rule in Employment Division v. Smith.  (See Stormans, Inc. v. Selecky, 586 F.3d 1109, 1134-35 (9th Cir. 2009); Thomas v. Anchorage Equal Rights Comm'n, 165 F.3d 692, 701-02 (9th Cir. 1999) [subsequently abrogated on other grounds]).  Even in those circuits that have been more aggressive in treatment the existence of non-religious exemptions as creating a strong suspicion that the law discriminatorily fails to show equal regard for religious claims for an exemption, this law might still pass muster, since the single exemption serves the ostensible purpose of the bill.  One story on this petition suggests that the language making clear that there is no religious exemption may itself endanger the petition.  Of course, that language could be excised easily enough (pardon the pun or not as you please) at the drafting stage, but I don't think the language is necessarily constitutionally problematic.  It simply clarifies that no other reason for an exemption save medical necessity is acceptable.  The petition is hostile, to be sure, but not just to religion--it's hostile to medically unnecessary circumcision in general.  (I take no position on what California state constitutional law provides on these issues.)

So the law might be constitutional despite its obvious disproportionate effect on those who seek circumcisions for religious reasons.  But is it wise policy?  Consider that the law makes an exception for physical health, but not for emotional well-being.  Consider, too, the possibility that this might drive those seeking circumcisions into the hands of back-alley mohels, sometimes charging outrageous fees and operating in circumstances that, because unregulated, might be much more dangerous to the patient.  Finally, although one could argue that circumcisions could easily be obtained elsewhere, this makes circumcision available to the wealthy and places a strong burden on the poor, for whom travel might be difficult and expensive.  In other words, on a matter of profound importance to intimate family relationships and personal autonomy, we might have one law for the rich and one for the poor.  

(Yes, I am drawing an analogy.  Yes, the analogy is imperfect.)