Tuesday, November 16, 2010

San Francisco Circumcision Ban Unconstitutional, Professor Says

Posted By on Tue, Nov 16, 2010 at 12:05 AM

click to enlarge Perform a brit milah, go to jail?
  • Perform a brit milah, go to jail?
San Francisco can have its proposed circumcision ban, or it can have the First Amendment. But it can't have both. That's the opinion of Peter Keane, dean emeritus at Golden Gate University School of Law and a constitutional law professor.

The potential ballot measure is the brainchild of Lloyd Schofield, an anti-circumcision crusader and foreskin-regeneration activist. While he has said he hopes his potential ballot measure leads to "a flood of legislation protecting baby boys from forced genital mutilation," Keane says 80 years of Supreme Court cases will, ahem, nip that in the bud.

"It's not Constitutional. It would be a violation of the First Amendment right to Freedom of Religion -- religions like Judaism that require [circumcision] as an essential part of the belief system."

In fact, Schofield's proposal contains language that could be construed as an intentional poke in the eye to organized religions calling for circumcision: "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."

Well, lawyers and judges will take it into account.

"There's a general First Amendment right stating you cannot make any laws that infringe the exercise of religion," says Keane. "And a parent has a First Amendment Constitutional right to make choices for his or her child."

But what if religious rituals are barbaric or exploitative? Anti-male circumcision activists liken the practice to female circumcision; Schofield uses the term "genital mutilation" repeatedly.

In order for the circumcision ban to move forward, "the court could say the state's interest would outweigh the free exercise of religion," notes Keane. "If I'm an Aztec and my religion says I have to go high atop a pointed building and tear out someone's heart -- that's nice, but there's a murder statute that trumps that. But in terms of state interest in preventing the foreskin of male infant from being detached -- that interest is very, very minor. You can't make any type of medical necessity argument regarding it. There may be some debate relating to whether or not it's desirable for other reasons later on -- sexual pleasure as someone grows older, those kinds of things. But the interest is so marginal, the state does not have the right" to trump freedom of religion.

Doesn't City Attorney Dennis Herrera know this? Doesn't he realize that, should the circumcision ban pass, he's facing a dog of a legal case he almost certainly can't win (and no shortage of lawyers and litigants happy to file suit)? That can be answered two ways: A. Yes, and; B. He's not saying.

Herrera told SF Weekly that, not only can he not offer legal opinions on potential pending legislation, he's also not allowed to say whether anyone within government requested his advice on the matter.

Keane, however, is willing to go out on a limb that Herrera has told our elected officials the circumcision ban doesn't make the cut.

"I'm sure Herrera's office has advised the Board of Supervisors that this would not be Constitutional," says the dean emeritus. "But that's protected under attorney-client privilege."

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