The Volokh Conspiracy

California Business & Professions Code 460(b) reserves the regulation of medical procedures to the state, and preempts contrary local rules:

No city, county, or city and county shall prohibit a healing arts professional licensed with the state under Division 2 (commencing with Section 500) from engaging in any act or performing any procedure that falls within the professionally recognized scope of practice of that licensee.

(1) This subdivision shall not be construed to prohibit the enforcement of a local ordinance in effect prior to January 1, 2010, related to any act or procedure that falls within the professionally recognized scope of practice of a healing arts professional licensed under Division 2 (commencing with Section 500).

(2) This subdivision shall not be construed to prevent a city, county, or city and county from adopting or enforcing any local ordinance governing zoning, business licensing, or reasonable health and safety requirements for establishments or businesses of a healing arts professional licensed under Division 2 (commencing with Section 500).

This appears to preempt the proposed San Francisco ban on circumcision of boys, at least as applied to procedures conducted by doctors (as opposed to mohels who don’t have a medical license). And a California judge’s tentative ruling released yesterday agreed with this argument (the final ruling is expected at some point after oral argument today):

The Court finds that the proposed ballot Initiative is expressly preempted by California Business and Professions §460(b). The evidence presented is overwhelmingly persuasive that circumcision is a widely practiced medical procedure. California Business and Professions Code §460 (b) applies to medical services provided by a wide range of health care professionals. The statute speaks directly to the issue of local regulation of medical procedures and leaves no room for localities to regulate in this area. In fact, the legislative history of §460(b) confirms that the legislature intended to prevent cities and counties from regulating medical services which is a matter statewide concern. Because the proposed ballot initiative attempts to regulate a medical procedure, the proposed ordinance is expressly preempted. Moreover, it serves no legitimate purpose to allow a measure whose invalidity can be determined as a matter of law to remain on the ballot after such a ruling has been made. City of San Diego v. Dunkl, (2001) 86 Cal.App.4th 384, 389 Accordingly, the Court issues a Writ of Mandate Ordering the Director of Elections for the City and County of San Francisco to remove the measure from the ballot in its entirety.

Why didn’t the court simply hold that the ban couldn’t be applied to doctors, but could be applied to others (such as mohels)? The opinion doesn’t say, but it could be that the judge concluded that if such an important part of the proposal is preempted, the proposal has to be entirely removed, perhaps because voters who vote for the proposal as written might well not have voted for a radically narrowed proposal. (That’s the “severability” question, which often arises both as to voter initiatives and legislatively enacted statutes; there’s a complex body of law related to that in each state.) Or perhaps the court was influenced by the argument that a circumcision restriction limited to non-medical-professions would in effect apply solely or almost solely to religious circumcisions, and would thus be impermissibly targeted against religion.

In any case, unless the decision is reversed on appeal (unlikely, I think), it now appears that there will be no legal battle about the difficult constitutional issues here, whether having to do with parental rights or federal and state religious freedom constitutional provisions. The dispute would have to await either a California statute or a state statute or local ordinance in some other state, and neither option seems terribly likely politically. Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

In the discussions about the proposed circumcision bans, some people suggested that the provision that “[i]n applying [the medical necessity exception to the ban], no account shall be taken of the effect on the [child] of any belief on the part of [the child] or any other person that the operation is required as a matter of custom or ritual” was a sign of religious animus. I should have noted, for whatever it’s worth, that the provision comes from the federal ban on female genital mutilation, which likewise provides,

In applying subsection [the medical necessity exception to the female genital mutilation ban], no account shall be taken of the effect on the [child] 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.

A bunch of people have e-mailed me about Foreskin Man, a comic book series written by Matthew Hess, a leading figure in the anti-circumcision movement who apparently drafted the prototype for the San Francisco anti-circumcision ordinance. (Contrary to some initial reports, he is not the official “proponent” of the initiative listed with the San Francisco election people; I don’t know how muh of a role Hess is playing in that particular initiative, or how significant — if at all — the comic book is in the publicity for the initiative.)

The superhero plot line strikes me as pretty poor advocacy for the movement, since it makes it seem juvenile. But the hot controversy has been about Issue 2‘s depiction of the villainous circumcising rabbi and mohel, dressed in Hasidic garb and looking sinister. (Issue 1 depicts a villainous doctor; my recollection is that the planned issue 3 is going to focus on Muslim circumcision, but I mislaid the URL of the page that asserted that, so I might be mistaken.) Not just the comic book but the initiative itself have been condemned by many, on the strength of these depictions, as anti-Semitic.

This, it seems to me, raises a considerably broader question: How should we evaluate harsh criticisms of religious and cultural figures and practices, whether the criticisms are expressed in words or pictures? (I speak here of moral evaluation; I’ll take for granted that all such criticisms can’t be legally punished.)

I think this is important because it’s not an issue at all limited to Jews and circumcision. Say that someone harshly criticizes Wahhabi imams — or imams of even more extreme Islamic movements — for their support of what the critic sees as repression of women, or for their support of jihad. And say that the criticism comes either in text or in a cartoon in which the imam is shown as a sinister figure wearing a long beard and a turban. What would we say about that? When people condemn this criticism as supposedly bigoted, should we feel bound to agree, or would we think that the criticism is legitimate expression of disapproval of a religion’s harmful practices (or at least practices that reasonable people can see as harmful)?

Or say that someone harshly criticizes Catholic clergy for what the critic sees as their anti-women, anti-reproductive-choice, anti-sexual-freedom stands on abortion, contraception, homosexuality, or divorce. Or say that someone harshly criticizes Christian Science leaders for their support of the use of prayer instead of traditional medicine, and in particular for their support of this when it comes to Christian Scientists’ young children. Or say that someone harshly criticizes leaders of certain cultural groups who promote — and perform — female genital mutilation, whether the mutilation is done for religious reasons, cultural reasons, or a mix of both.

Now all of these may in fact show the critic’s hostility to certain religious or cultural practices, and to the group leaders who perpetuate such practices. The critic may cheerfully admit such hostility. The question is what should we think about such hostility, when there is reason to think that the hostility might stem not just from the leaders’ ethnic identity, or even their purely thelogical beliefs, but from the leaders support of conduct that the critic thinks inflicts real secular harms (and violates people’s rights).

Continue reading ‘Harshly Criticizing Religious and Cultural Figures and Practices’ »

I’ve heard some people argue that the proposed circumcision bans (one of which is now on the ballot in San Francisco) is motivated by hostility to Jews. I quite doubt it, for a reason I mentioned in an earlier post: As of 2005, about 56% of newborn American boys, and about 31% of American boys in the Western states, were circumcised. (In the Midwest, the fraction was nearly 75%.) Since Jews and Muslims — the two groups that generally circumcise for religious reasons — make up about 3% or so of the population, it seems that over 90% of all circumcisions are not religiously motivated. The fraction might be lower in San Francisco proper (I know of no statistics limited to that city), but I suspect that even in San Francisco, the great majority of circumcisions aren’t religiously motivated; only about 5% of San Francisco residents are Jewish.

Now it’s true that circumcision bans are likely to affect Jews more deeply than others, because Jewish parents are more likely to feel strongly about circumcising their children. But it would still be the odd anti-Semite who so wants to hurt Jews that he’s willing to try to in the process forcibly change the practices of over 50% of the population — overwhelmingly non-Jews — and thus to incur the political opposition of that big chunk of the population.

Of course, it’s likely that some critics of circumcision have come to disapprove of Judaism, to the extent that Judaism mandates such circumcision, just as they disapprove of non-religious beliefs that support circumcision. But that’s not anti-Semitism, just as (say) disapproval of conservative Islamic restrictions on women isn’t bigotry against Islam: It’s opposition to behavior with tangible secular consequences, whether the behavior is religiously or secularly motivated.

Relatedly, some other people argue that Jews aren’t going to comply with the law and seem to imply that the law will therefore be futile. I agree that if any circumcisions bans remain just city ordinances (rather than prompting similar state or federal laws), many Jews will just go out of town to conduct the circumcisions; and even if the laws lead to more comprehensive bans, the really devout will avoid them (at the extreme, by leaving the country).

But my sense is that the anti-circumcision activists would feel that succeeding in stopping 97% of all circumcisions is quite a big win. If you really think that circumcising infant boys is a serious wrong against them — to the point that you’d invest time and effort into backing this proposal, with all its potential legal and political difficulties — wouldn’t you think that even a merely 97% complete victory (or perhaps even a considerably lesser victory) is pretty good? To be sure, the anti-circumcision activists wouldn’t want any religious exemptions, just as people who are trying to stop other things that they see as harmful generally don’t want any religious exemptions. But my guess is that if the ordinances are enacted and then upheld against a parental rights challenge, the backers would think they’ve triumphed even if Jews and Muslims get religious exemptions in court, or leave the jurisdiction to get their children circumcised.

UPDATE: A commenter asks, “Would you agree that the refusal to put in a religious exemption into these laws is motivated by hostility to those religions which practice this? In fact, if you read the Santa Monica petition item, it goes further than merely not including a religious exemption but by explicitly clearly disclaiming one. I don’t see how that can be interpreted as anything other than hostility to circumcision as a religious practice. How is that different from hostility to the groups which perform the practice?”

As best I can tell, opponents of male circumcision believe that it’s a serious interference with the rights of boys, and the men they’ll become, and a serious harm to those boys and men. If that’s so, then there’s every reason for them to think that it’s just as much an interference with rights, and just as much of a harm, when the conduct is done for religious reasons. And therefore it makes perfect sense that, with no hostility to the religion as such, the backers would refuse to include a religious exemption. The refusal to give people a religious exemption from a ban on behavior that you think is harmful and rights-violating hardly shows a hostility to religion — it shows a hostility to the behavior, whether the behavior is religious or otherwise.

Consider a wide range of laws that ban behavior that you think is harmful. It might be female genital mutilation. It might be sex discrimination, race discrimination, religious discrimination, or sexual orientation discrimination. It might be trespass, murder, rape, or what have you. Now imagine someone asking for a religious exemption from those laws, for instance from the ban on female genital mutilation. (Assume that some group does indeed believe that female genital mutilation is a necessary religious ritual.) Would you refuse to put in a religious exemption into the law (if it’s up to you)? If so, does your refusal show that you are hostile to the group? Or does it simply show that you think the practice is wrong, regardless of whether its practitioners do it for religious or other reasons? (To be sure, you might well think that circumcision of boys is unlike these other practices, because you think that it’s not that harmful or rights-violating; but that’s a separate question from whether a person’s refusing to provide an exemption is evidence of religious hostility.)

The proposed anti-circumcision initiative follows the text of the San Francisco initiative. According to the Jewish Journal, “To qualify the initiative for inclusion on the ballot in Santa Monica’s next election in November 2012, its proponents will need to collect signatures from 10 percent of the city’s approximately 61,000 registered voters in the next six months. If they obtain signatures from 15 percent of Santa Monica’s voters, the initiative could be put to a vote in a special election.”

Santa Monica is a relatively wealthy enclave of the greater Los Angeles area — not really a suburb, but part of the West Los Angeles core. It is also heavily Democratic (69% D, 29% R), and supposedly almost 5% Jewish. San Francisco is likewise supposedly about 5% Jewish; America as a whole is 2% Jewish, though I’m not sure how the site that I’m citing is gathering its city-level religion statistics. Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

In the earlier post, I discussed whether the proposed San Francisco ban on circumcising boys would violate parental rights, even when the parents don’t raise a religious objection to the ban. (As I mentioned in the post, likely about 95% of male circumcisions in the U.S. are not done by Jews or Muslims, the two groups that generally circumcise for religious reasons.) But what about parents who do raise such a religious objection? Would they be entitled to an exemption from the ban, even if courts say the ban can be constitutionally applied — notwithstanding parents’ constitutional rights to direct the medical care of their children — in the absence of a religious objection?

The general Free Exercise Clause under the First Amendment: In Employment Division v. Smith (1990), the Supreme Court held that religious objectors are generally not entitled to an exemption from religion-neutral, generally applicable laws. This law would likely qualify as such a religion-neutral, generally applicable laws, because it applies to all circumcisions, whether religious or not. The proposal does specifically says that, in determining whether the exemption for immediate medical need applies, “no account shall be taken of the effect on the [child] of any belief on the part of [the child] or any other person that the operation is required as a matter of custom or ritual.” But that just reiterates that the ban is a flat ban on all non-medically-required circumcisions, with no exemptions based on religion, culture, personal preference, or anything else.

A law might still be found not to be religion-neutral if courts conclude that it was motivated by hostility to religion. But I doubt this will happen here. Courts require pretty strong evidence of such religious hostility to set aside a law that is religion-neutral on its face. And I suspect that courts will recognize that any opposition to particular conduct — whether it’s circumcision, sexual orientation discrimination, the use of marijuana, or what have you — will often spill over into criticisms of the religious groups that engage in such conduct (as well as towards people who engage in such conduct for nonreligious reasons). That’s natural, and requires no hostility to religion as such. So the fact that some backers of the initiative will doubtless have criticized religions that mandate circumcision wouldn’t suffice to invalidate the ordinance.

The “hybrid rights” exception: Smith, however, set forth an exception to its general rule. Two decades before Smith, Wisconsin v. Yoder (1972) held that the Amish were entitled to an exemption from a generally applicable law requiring children to attend schools (public or private) up to 16; and Smith did not overrule Yoder on this score. Rather, Smith dealt with Yoder like this (most citations omitted):

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 speech and of the press, or the right of parents, acknowledged in Pierce v. Society of Sisters, 268 U. S. 510 (1925), to direct the education of their children, see Wisconsin v. Yoder, 406 U. S. 205 (1972) (invalidating compulsory school-attendance laws as applied to Amish parents who refused on religious grounds to send their children to school). [Footnote: [Yoder] specifically adverted to the non-free-exercise principle involved ... [by saying] that “the Court’s holding in Pierce stands as a charter of the rights of parents to direct the religious upbringing of their children. And, when the interests of parenthood are combined with a free exercise claim of the nature revealed by this record, more than merely a ‘reasonable relation to some purpose within the competency of the State’ is required to sustain the validity of the State’s requirement under the First Amendment.”] Some of our cases prohibiting compelled expression, decided exclusively upon free speech grounds, have also involved freedom of religion. And it is easy to envision a case in which a challenge on freedom of association grounds would likewise be reinforced by Free Exercise Clause concerns.

The present case does not present such a hybrid situation, but a free exercise claim unconnected with any communicative activity or parental right. Respondents urge us to hold, quite simply, that when otherwise prohibitable conduct is accompanied by religious convictions, not only the convictions but the conduct itself must be free from governmental regulation. We have never held that, and decline to do so now. There being no contention that Oregon’s drug law represents an attempt to regulate religious beliefs, the communication of religious beliefs, or the raising of one’s children in those beliefs, the rule to which we have adhered ever since Reynolds plainly controls.

This is a mysterious, mystifying, and perhaps mystical passage. I think the Smith decision is correct, but even I think that its explanation of Yoder is pretty poor. And lower courts have understandably split on what it means.

Some have dismissed the “hybrid situation” analysis as dictum, and sufficiently unhelpful dictum that those courts have felt free to reject it. Some have concluded that “hybrid situation” simply refers to a situation where the religious objectors have a winning claim on some other right, so that the religious objectors would win but not because of the Free Exercise Clause; under this approach, there would likewise be no right to religious exemptions from generally applicable laws even when another right is in play — only the other right would matter.

But some courts have held that the Free Exercise Clause does provide extra protection when the claimant can “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.” Some Ninth Circuit decision have so said (the quote I just gave is from one such case), but another Ninth Circuit decision has disagreed: “We reject Plaintiffs’ contention that Jacobs and Dresser raise ‘hybrid rights’ claims that should be subjected to strict scrutiny. The ‘hybrid rights’ doctrine has been widely criticized [citing sources], and, notably, no court has ever allowed a plaintiff to bootstrap a free exercise claim in this manner. We decline to be the first.” And the California Supreme Court has also rejected the theory that a Free Exercise Clause claim could be based on a combination of a religious objection (which wouldn’t normally itself justify constitutional relief) and another constitutional claim that is merely “colorable” (rather than a winner on its own).

So if courts conclude that a “hybrid situation” under Smith is merely a situation where the religious claimant also has some other winning constitutional claim, then the Free Exercise Clause wouldn’t add anything to the analysis (see the general Free Exercise Clause discussion above): The religious parents’ objection would stand or fall on their parental rights claim.

But if courts accept the “colorable claim” theory, then they would have to decide whether the parents’ pure parental rights claim is “colorable” (whatever that might mean here); and, if it is, then the standard of scrutiny would be elevated from that normally used for parental rights (which, as I mentioned, is uncertain), to the “strict scrutiny” used in cases such as Yoder — a religious exemption would have to be granted unless denying it would be “narrowly tailored” to a “compelling government interest.” In principle, this might mean that parents who are religiously motivated to circumcise their children might win, even if the parents who are nonreligious motivated would lose.

What “strict scrutiny” might mean in practice: Yet in practice, even the “colorable claim” view of the “hybrid situation” language might not much matter. “Strict scrutiny,” though very demanding in many contexts, it has never been that demanding in the religious exemption context. While the “strict scrutiny” test in race and free speech cases was generally seen as “strict in theory, fatal in fact” (Gerry Gunther’s phrase), almost always invalidating the government law, in religious freedom cases it was “strict in theory, feeble in fact” (Larry Sager & Chris Eisgruber’s phrase).

And that was likely inevitable, for reasons I discussed in my A Common-Law Model for Religious Exemptions article. Even if religious objectors have a constitutional right to exemption from some generally applicable laws, they can’t have the nearly certain victories that truly “strict” scrutiny promises. We can have a regime where nearly all race classifications are unconstitutional, and nearly all content-based speech restrictions (imposed by the government as sovereign, not as proprietor, and exclusive of the traditionally recognized Free Speech Clause exceptions) are unconstitutional. We can’t have a regime where religious objectors can violate nearly every generally applicable law — including laws that protect the rights of others who don’t share the objectors’ religious views — simply because they feel a religious motivation to do so.

So in practice, I expect that even if the Free Exercise Clause is seen as presumptively requiring exemptions from laws that interfere with parents’ right to medical care, that presumption would be no stronger for religious objectors than it is for other parents. So the analysis would end up being much the same as that discussed in the parental rights post.

The California Constitution: The California Constitution has its own religious freedom guarantee, and some states have interpreted their state guarantees as providing more protection for religious objectors than does the federal Free Exercise Clause. As the 2010 map below shows, eleven states interpreted such provisions to require “strict scrutiny” in religious exemption, and a 2011 Kansas decision makes that number twelve. One state, New York, has interpreted such a provision to require a weak form of “intermediate scrutiny.” Five states have disagreed, interpreting such provisions as protecting only against deliberate discrimination (thus following Smith). And the rest haven’t decided this. (Some legislatures have enacted specific statutory religious exemption schemes — or, in Alabama, a specific constitutional amendment expressly mandating a “strict scrutiny” approach — but the effort to enact such a law in California was ultimately blocked.)

The California Supreme Court, in particular, has not resolved this question. If California courts do conclude that the California Constitution secures a presumptive right to a religious exemption, then religious parents wouldn’t have to rely on their parental rights claim. In particular, recall that the claim of parental rights to control a child’s medical care might be unavailable — the matter is unclear — to parents who don’t have a medical motivation for circumcising their child. But if the parents have a constitutional religious exemption claim, then they’ll be assert it even if their motivation is purely religious, and not medical.

Nonetheless, for reasons given in the “what strict scrutiny might mean in practice” discussion above, parents might lose a “strict scrutiny” analysis of the religious exemption claim. Just as a court might reject a medically motivated parent’s parental rights claim, on the grounds that the government interest overrides the parental right, so it might reject a religiously motivated parents’ religious exemption claim.

The bottom line: So with the religious exemption claim, as with the parental rights claim, the result remains uncertain.

1. If the courts reject the “colorable claim” view of the Smith “hybrid situation” language, parents will lose on their religious exemption claim, though they might have a parental rights claim (alongside parents who have no religious objections).

2. If the courts accept the “colorable claim” view of the Smith “hybrid situation” language, parents’ religious exemption claim will probably be treated much like their parental rights claim (though it’s possible that courts might be somewhat more skeptical of the law if a religious freedom claim is involved together with a parental rights claim, than if a parental rights claim were involved by itself).

3. If the courts interpret the California Constitution as departing from the federal Free Exercise Clause standard, and requiring “strict scrutiny” in religious exemption cases, then the parents’ religious exemption claim will probably be treated much like the parental rights claims brought by parents who have medical motivations for having their sons circumcised.

Again, I wish I could say something more definite, but the precedents don’t warrant any such certainty.

In the comments to this post, please do not discuss the pure parental rights questions; there’s a separate post for discussing those. I thought it would be helpful to have here a separate discussion that focuses on the religious freedom issue.

In November, San Francisco voters will vote on an initiative that would generally ban circumcision of boys under age 18, except when “the operation is necessary to the physical health of the [child] because of a clear, compelling, and immediate medical need with no less-destructive alternative treatment available, and is performed by a ... licensed ... medical practitioner.” In determining whether the exception is applicable, “no account shall be taken of the effect on the [child] of any belief on the part of [the child] or any other person that the operation is required as a matter of custom or ritual.”

Would such a ban be constitutional? That’s a surprisingly complex question, and I’d like to break down the answer into two parts: the parental rights question in this post, and the religious freedom question in another post.

As of 2005, about 56% of newborn American boys, and about 31% of American boys in the Western states, were circumcised. (In the Midwest, the fraction was nearly 75%.) Since Jews and Muslims — the two groups that generally circumcise for religious reasons — make up about 3% or so of the population, it seems that over 90% of all circumcisions are not religiously motivated. The fraction might be lower in San Francisco proper (I know of no statistics limited to that city), but I suspect that even in San Francisco, the great majority of circumcisions aren’t religiously motivated.

So the parental rights question, viewed independently of the religious freedom question, is indeed important. And, as we’ll see in the later post, it turns out that, even for religiously motivated circumcisers, the religious freedom claim depends in some measure on the parental rights question.

Is a presumptive constitutional right of parents in play here? Parents, the Supreme Court has held, have a presumptive constitutional right to control the upbringing of their children. No such right is mentioned expressly in the Constitution, but the Supreme Court has recognized this right since the 1920s, and so far only Justice Scalia has argued that no such right exists (though Justice Thomas has expressly said that he expresses no view on whether it exists).

Continue reading ‘Proposed San Francisco Circumcision Ban (with No Discussion of Religious Freedom in This Post)’ »