Cutting edge synagogue-state clash

It would be hard to imagine a more apocalyptic battle between synagogue and state than the ballot-box battle that is unfolding in San Francisco over the right of Jews (and anyone else) to circumcise their newborn males. Now the battle is spreading down the left coast to Santa Monica.

I know that some folks in the Los Angeles Times newsroom get the religious liberty implications of all of this. Why? Because columnist Tim Rutten has already written about the issue:

… (Even) if it were to pass, the proposal does such obvious violence to the 1st Amendment that its chances of surviving constitutional review are even more improbable than Donald Trump’s hair color.

Still, there’s something so breathtakingly wrong about the presence of such a proposition on any ballot that its implications are worth at least a few minutes of reflection. On one level, it’s simply the most recent and egregious example of how California’s long experiment with direct democracy has gone stunningly wrong at every level of government. Simply because more than 12,000 residents signed a petition, you have the people of an American city voting on whether or not to proscribe one of the central rituals of an entire religious community — in this case, Jews, who have been required to circumcise male infants within eight days of birth since the time of Abraham. Many Muslims also practice circumcision for religious reasons, while significant numbers of other American parents elect the procedure for hygienic or health reasons.

However, the latest Times article on the Santa Monica proposal falls short — in my opinion — when it comes to covering the two crucial issues involved in this fight. Yes, this is a public health fight and that angle must be covered, in large part because there are highly informed medical experts on both sides and their debates are lively.

However, the crucial legal question is whether the medical opinions and evidence can trump the religious liberty of Jewish parents to make this decision to follow the tenets of their faith. Does the state, in effect, have the right to change the doctrinal content of the Jewish faith by moving this rite from the first week of life to the, well, first week of adult life?

When you are asking a church-state separation question — yes, synagogue-state in this case, and mosque, too — of that magnitude, you need to call in a variety of legal and religious voices and see how they line up. In this case, is there going to be much of a debate? Is there a judge, even in California, who is ready to ban one of the defining rites in Judaism?

As I said, the Times team knows about this conflict. Thus, we read:

Circumcision of male infants is a religious requirement in Judaism and a cleanliness-related custom in many Islamic communities. As a result, the effort by MGM Bill to put forth the initiative is raising concern among religious organizations, which contend that a ban would violate the 1st Amendment prohibition against government interference with a person’s practice of religion.

The measure would make it a misdemeanor to circumcise a boy in Santa Monica before he turned 18. The maximum penalty would be a year in jail and a $1,000 fine. Circumcisions would be permitted only for medical reasons, with no religious exemptions.

“Jews don’t circumcise for medical reasons; it’s for traditional reasons,” said Andrew Shpall, a Woodland Hills urologist and mohel. A mohel (pronounced moy-el) is a Jewish person trained in the practice of brit milah, or the covenant of circumcision. Shpall added that there was some disagreement in the medical community about whether all male babies should be circumcised.

The American Academy of Pediatrics, in effect, argues that parents need solid, unbiased information before making this choice. However, the reason that the synagogue-state conflict looms is because the ban would erase that choice.

So, from the perspective of the Times team, what does the heart of this debate sound like? Brace yourself:

Jena Troutman, an anti-circumcision activist in Santa Monica, said concerns about poor hygiene and transmission of sexual diseases in uncircumcised males could be managed through education. “If you raise your child to be smart and practice safe sex,” circumcision is unnecessary, she said. “If you’re raising a dumb kid who won’t use a condom, then go ahead and cut off two-thirds of his nerve endings and one-half of his penile skin.”

Peter Eliasberg, legal director of the American Civil Liberties Union of Southern California, said the measure might pass a 1st Amendment challenge. “If there is some support [among medical doctors or psychologists] for the idea that circumcision hurts children, the government could do this,” he said.

That’s it. That’s all the reader gets. All it takes is “some support” among doctors to overturn America’s very high walls of protection for religious liberty?

Trust me, reporters will find interest in this story if they start calling church-state think tanks, Jewish organizations, Muslim community centers, etc. Prepare for some arguments — medical, legal and theological. Cover both sides of these debates, because this is a serious story worthy of close attention.

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About tmatt

Terry Mattingly directs the Washington Journalism Center at the Council for Christian Colleges and Universities. He writes a weekly column for the Universal Syndicate.

  • Kate

    The comparison that is made in anti-circ circles – and I’m surprised it didn’t come up here – is that in this country we consider female circumcision to be mutilation and it is illegal in the US and several other western nations. This, obviously, causes problems within those populations that consider FC to be a cultural, ethnic, or religious mandate. Even a symbolic ‘nick’ to the labia is considered genital mutilation here in the US. So…what arguments can we use to outlaw FC that do not apply to male circumcision? What arguments can we use to defend male circumcision that do not apply to female circumcision? And why doesn’t this make it into the press coverage of something like this, considering that the central issue – of protecting minors from unnecessary surgery vs. first amendment rights – makes this comparison very apt?

  • Elaine T

    How about articles comparing this to the treatment of fringe Christian sects that don’t do various medical procedures such as blood transfusions? I’m not up on the current state of parental rights to make medical decisions for their children refusing such procedures for religious reasons, but it seems like a reasonable comparison. Unlike the female circumcision comparisons this one has some history and precedent going for it.

  • Jerry

    Elaine T raises one of my perennial questions: where to draw the line. Seldom to never do stories like this put in any perspective about clashes with other religious practices from the Amish and many, many other religious groups. However, I did find one with a bit of perspective:

    But Supreme Court precedent is mixed. Many religious practices (such as polygamy, once practised by Mormons) are clearly illegal. In a 1944 case concerning a Jehovah’s Witness who had custody over a nine-year-old girl, the court stipulated that “parents may be free to become martyrs themselves. But it does not follow they are free…to make martyrs of their children before they have reached the age of full and legal discretion.” Yet in a case in 1972 the court upheld the rights of Amish parents to refuse, on religious grounds, to send their children to school beyond 8th grade.

    http://www.economist.com/node/18712852?story_id=18712852&fsrc=rss

  • Deacon John M. Bresnahan

    How about American Indians and peyote. A quick look at some sites indicates that members of certified Indian Tribes can use it in their ceremonies, but visitors to one of their “churches” that use it cannot join in. Apparently the history of this issue has been quite tangled over the years.

  • tmatt

    I was away from my keyboard for a few hours, so this is a bit delayed.

    Church-state law has encountered these conflicts in the past, with much of the crucial law being linked to Jehovah’s Witnesses, Christian Scientists, etc.

    The rule has been that the state only intervenes when you are dealing with fraud, profit or clear threat to life and health. Now, state has — in the past — erred on the side of religious liberty on these matters. Circumcision is nowhere NEAR as hard a case, oh, the blood transfusions issue.

    The line has been hard to draw. But the state has, in the past, had a high, high, high standard to meet to limit religious liberty.

  • Norman

    Would that this were confined to some wacky precincts of San Francisco, RealRick. Andrew Sullivan printed a number of comments today taking him to task for supporting a religious exemption to anti-circumcision legislation, the most reasonable being this:

    I think your argument is related to your deep devotion to religious freedom – which, in theory, is fine. However, why can’t we, as a society, demand that Jews and Muslims modernize with the rest of creation?

    We’ve done it before…

    The idea that the state should exercise control over the content of religious beliefs is breathtakingly authoritarian. I don’t know how many people see that any more, though. Perhaps the LA Times reporter doesn’t either, which would explain why religious Jews got short shrift in this article.

  • http://rub-a-dub.blogspot.com mattk

    Reporters should talk to Christians who see this as a threat to their faith, too. If the State can use health reasons to say no circumcision for boys it can say Christians no wine for children. It might even say incense smoke is air pollution and exposing children to it is child abuse.

  • http://www.tmatt.net tmatt

    I’m spiking lots of comments that are about the ballot initiative itself, not the journalism issues in the stories and my post.

  • sallyr

    I’ve taught the First Amendment in law school for years, and current Supreme Court precedent on religious liberty – at both the state and federal level – would permit a ban on male circumsicion so long as there is no evidence that the purpose of the law is to burden only people who cirumcise for religious reasons.

    So, for instance, it would be a violation of the 1st Amendment (and the parallel provision of the state constitution) if the law said “It is a violation to circumsice a boy for religious reasons, but permissible to do so for health reasons”.

    It would not be a constitutional violation if the law said: “Under no circumstances may one circumcise a boy,” unless there is some other evidence that the real reason for the law is to burden a religious belief. For instance if the legislators made it clear somehow that they want to drive Jews out of the city with the law, even though it’s not stated in the text of the statute.

    Since many people circumcise for non-religious reasons, it would be quite difficult to prove that this law was aimed at only religious practices.

    So unless judges change their interpretation of religious freedoms (which they do when they want to), such a non-targeted law would be upheld.

  • sallyr

    I should also mention that the reason the ACLU attorney (quoted at the end of this blog entry) said there just has to be “some support” for the notion that circumcision hurts children is because that is the standard used by the Supreme Courts (both US and California) for upholding laws that “incidentally burden” religious practices.

    “Incidentally burden” means that the purpose of the law is not to burden a religion, it just happens to burden them, unintentionally.

    And the “some support” means that there is some conceivable rational basis for the law. If there’s evidence that some boys might be hurt by circumcision, then it’s not “completely irrational” for the state to ban the practice. Only if the law was completely irrational could it be struck down under current constitutional law. That’s because courts no longer apply strict scrutiny to these kinds of cases (which they used to do).

  • Asshur

    @sallyr
    On the constitutional interpretation you outline, with “some support” is “there is some non null probability (However remote) that there exist …” meant ? And that trumps 1st Admendment?
    Really bizarre…

  • Jon in the Nati

    Sallyr:

    To me it sounds like you are suggesting that a court evaluating such a law would be doing so under rational basis scrutiny. I should think that such a law would merit at least heightened scrutiny (as per Employment Division v. Smith) if not near-strict scrutiny. Is that what you are suggesting, and if so, why do you feel that it would be appropriate to apply rational basis scrutiny to this proposed law?

  • sallyr

    Under Employment Div. v. Smith rational basis is used when a neutral law of general applicability incidentally burdens religion – it’s a neutral law, not aimed at any religion per se. It applies to everyone who wants circumcision for their baby, whether for cultural, aesthetic, cleanliness, family or religious reasons = general applicability. The only exception the statute makes is when a doctor says it’s medically necessary – to correct for a medical problem.

    The only way you get to heightened scrutiny is if you can show that the ban is aimed at discriminating only against religiously motivated circumcision. I think that would be difficult to show, since there are many reasons why parents want circumcision and the law bans all of them, except for those that are medically necessary.

    Employment Div. v. Smith is a case where a law made the religious practice of Native Americans illegal (the religious practice was partaking of peyote). The court upheld the statute and said that it did not violate the constitution because the state had a rational basis for banning it.

    If the law had only banned the religious use of peyote, it would have been subject to strict scrutiny. The other important case is Church of Babaluai v. City of Hialeigh – in which the city tried to ban only the religiously motivated sacrifice of animals, but permitted all other kinds of killing of animals. That was clearly aimed at banning only religious reasons for killing animals, and was thus subjected to strict scrutiny – and struck down.

  • Asshur

    During the XVIII Admendment era (the Prohibition), the use of alcohol in religious context was exempt. Has noone of the anti-circumcision groups thought about such an exemption ? Or is religion is SF so taboo that such an exemption is unthinkable?

    OTOH what has the reaction of the confessional Jewish press on this proposal?

  • Karen

    The Jewish Tablet has a remarkably objective take on the subject: http://www.tabletmag.com/news-and-politics/60406/foreplay/

    The Jewish Daily Forward sees it as easily challenged and doesn’t wast much energy on discussing it. I see none of the discussion we have here on incidental restriction of religion. http://www.forward.com/articles/137979/

    Haaretz hasn’t covered it since the initiative started but they did get good quotes from local Jewish leaders. Also no discussion on incidental restriction: http://www.haaretz.com/jewish-world/san-francisco-man-hopes-to-bring-about-ban-on-circumcision-1.338311

  • sallyr

    Interesting articles from the Jewish press. I would say that the people who say they are confident that this ban would be found unconstitutional do not appear to be lawyers, but are rather rabbi’s (not sure how to make that plural). …

    The problem is, as they mention in these articles, that something like 60% of baby boys are circumcised – which proves that the procedure is not being done for primarily religious reasons. Only Jews (and the article seems to also suggest Muslims?), have a religious duty to circumcise, and they are below 5% of the population. ….


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