Michael A. Helfand, associate professor of law and associate director of Pepperdine University’s Glazer Institute for Jewish Studies, recently published an op-ed in the Daily Journal. Read the full text of the op-ed below.
Helfand received his JD and PhD from Yale, where his fields included contemporary theory, political philosophy, and American politics. Helfand’s primary research interests are law and religion, arbitration, constitutional law, and contracts. In particular, he has worked extensively on the intersection of group rights and the law, including religious arbitration, Equal Protection Clause jurisprudence, and political theories of toleration.
He has published articles in the New York University Law Review, George Mason Law Review, University of Pennsylvania Journal of Constitutional Law, William & Mary Bill of Rights Journal, and the Journal of Law & Religion.
Why San Francisco’s Proposed Circumcision Ban Violates the First Amendment
By Michael A. Helfand
On one level, there is something almost comical about the current controversy over the proposed ballot initiative in San Francisco to ban circumcision. Newspapers capitalizing on the debate abound, with headlines reading “California Wants to Snip Male Circumcision in the Bud” and “Male Circumcision: On the Chopping Block?”
But the proposed ban on circumcision is - forgive the pun - painfully serious, with current anti-circumcision initiatives threatening an age-old religious tradition, practiced by members of both Jewish and Muslim communities. Advocates of the proposed circumcision ban in San Francisco - seeking to “protect” babies from surgery imposed by their parents - collected 7,743 verified signatures, sufficient to put it on the ballot for this November. Under the proposed initiative, performing a circumcision on “another person who has not attained the age of 18 years” would constitute a misdemeanor, punishable by either a fine of up to $1,000, a prison term of up to one year, or both. And the proposed legislation explicitly denies any religious exemption for conducting a circumcision in accordance with religious or customary practice.
San Francisco is not the only municipality to explore a circumcision ban. In fact, soon after the ballot initiative was announced in San Francisco, advocates in both Santa Monica and San Diego began considering similar initiatives, although it now appears that at least Santa Monica will not pursue such a ban.
These developments have raised a host of questions regarding the constitutionality of the bans. Many have been surprised to learn that under current U.S. Supreme Court doctrine, announced in the 1990 case Employment Division v. Smith, such bans might not run afoul of the religious protections guaranteed by the First Amendment. According to the Court, so long as a law is both facially neutral and generally applicable - and thereby does not intentionally target religion or religious conduct - it can survive a challenge based upon the First Amendment guarantee of the right to the “free exercise of religion.” A wide reaching circumcision ban that applies to all circumcisions, whether or not they are motivated by religious practice, might indeed be constitutional under such a standard.
The response to the potential lack of First Amendment protections has primarily been to shift efforts to the passing of new legislative protections. Congressman Brad Sherman, a Democrat representing California’s 27th district, has announced his plans to introduce a bill titled the “Religious and Parental Rights Defense Act,” which aims “to prevent San Francisco and other municipalities from banning the circumcision of males under the age of 18.” Similarly, State Assemblyman Mike Gatto has announced his plans to pursue similar state legislation in Sacramento.
But notwithstanding the virtues of federal and state legislation (which are significant), we shouldn’t cast aside the First Amendment options too quickly. Indeed, there are two strong reasons why, despite the Supreme Court’s decision in Employment Division v. Smith, the San Francisco circumcision ban is likely unconstitutional.
First, circumcision bans may be unconstitutional because the parental decision to circumcise a child for religious reasons is protected by a “hybrid right.” That is, circumcision is not only a practice that implicates the right to the free exercise of religion, but it is also a practice that implicates the additional constitutional right of parents to, under the 14th Amendment, direct the upbringing of their children. Importantly, while the Supreme Court held in Employment Division that the First Amendment did not protect religiously motivated conduct against facially neutral and generally applicable laws, it did note that prior decisions had provided a category of hybrid-rights exceptions: “The only decisions in which we have held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action have involved not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections, such as freedom of...the right of parents...to direct the education of their children.”
According to the Court, the free exercise claim advanced in Employment Division failed because it did “not present such a hybrid situation, but a free exercise claim unconnected with any communicative activity or parental right.” By contrast, parents seeking to ritually circumcise their children are engaging in conduct that not only implicates their free exercise rights under the First Amendment, but also their parental rights under the 14th Amendment. If found to infringe on a hybrid right, the circumcision ban would be held unconstitutional, unless it passed the most grueling of review standards – “strict scrutiny” - which almost no law can survive. As the old constitutional adage goes, the strict scrutiny standard of review is strict in theory, but fatal in fact.
Now the scope of the 14th Amendment’s protection of parental rights is notoriously contested. But questions as to whether the 14th Amendment provides for a parental right wide enough in scope to cover circumcision need not sink a hybrid-rights claim against circumcision bans. Indeed, the 9th U.S. Circuit Court of Appeals has stated that the companion right - namely, the right standing alongside the free exercise of religion to form a hybrid-rights claim - need not be unassailable. Instead, “to assert a hybrid-rights claim, a free exercise plaintiff must make out a ‘colorable claim’ that a companion right has been violated - that is - a ‘fair probability’ or a ‘likelihood,’ but not a certitude, of success on the merits.”
In fact, in a moment of extraordinary clairvoyance, 9th Circuit Judge Andrew Kleinfeld addressed this precise situation in a dissent he filed back in 2000: “Suppose, hypothetically, that a legislature passed a facially neutral law prohibiting circumcision, and that its reason was not anti-religious animus, but concern that the possible pain inflicted on the child exceeded the medical benefits from the procedure. Such a law would make it impossible for Jews and Moslems to practice one of their most sacred religious obligations. I suspect that under Smith, the no-circumcision law would be unconstitutional...because the no-circumcision law would abridge both the right to rear one’s children in one’s religion and the free exercise of one’s religion.”
Judge Kleinfeld actually used this as an example of a hybrid-rights case that he believed would be relatively easy to decide - a conclusion not contested by the majority. Given 9th Circuit precedent, and the fact that such precedent would govern any federal litigation in California, there is good reason to believe that a hybrid-rights claim would be successful if marshaled against San Francisco’s circumcision ban.
Of course, pursuing a hybrid rights claim is necessary to the extent we assume that the San Francisco circumcision ban is not intended to target religious circumcisions. This assumption, grounded in the facially neutral and generally applicable language of the proposition, has itself been questioned in light of recent revelations that Matthew Hess - president of the group promoting the San Francisco circumcision ban, MGMBill.org - is also the author of a series of comic books titled “Foreskin Man.” The series includes villains such as “monster mohel” and has been described by the Anti-Defamation League as incorporating “grotesque anti-Semitic imagery and themes.” According to the comic book, “Nothing excites Monster Mohel more than cutting into the penile flesh of an eight-day-old infant boy.” As Mitchell Landsberg of the Los Angeles Times has noted, “The image of a bearded, black-hatted Jew with an evil grin and a bloody blade seems straight out of the annals of classic European anti-Semitism.”
Given Hess’ position, such cartoons could go far in demonstrating that the San Francisco circumcision ban is motivated by religious animus. Indeed, when determining whether or not religious animus motivates a particular piece of legislation, the Supreme Court has looked to surrounding circumstances in order to infer intent. And, as the Court has emphasized, “if the object of a law is to infringe upon or restrict practices because of their religious motivation, the law is not neutral.” Accordingly, “[o]fficial action that targets religious conduct for distinctive treatment cannot be shielded by mere compliance with the requirement of facial neutrality.” Hess’ position in the push for the ballot initiative in San Francisco - combined with what appears to be his invocation of anti-Semitic images and themes in his comic books - provides ample ammunition to claim the San Francisco circumcision ban is unconstitutional under the First Amendment as an impermissible attempt to target religious conduct.
Originally published in the Daily Journal.