Archive | Circumcision Bans

Europe’s Proposed Circumcision Ban: How Far Back We’ve Gone While Making Progress

The Council of Europe in Strasbourg has recommended nations consider banning child circumcision. Jewish groups, and the State of Israel, are predictably outraged by the recommendation, which if adopted would make traditional (and not just religious) Jewish life impossible on the Continent. Thus the law has been denounced as anti-Semitic.

While I have recently criticized European hypocrisy in matters related to Jews, here I find little to object to as a formal matter. European nations are well within their rights to ban such practices, despite the significant disruption it creates for religious minorities.

If democratically adopted, such bans would mean that a significant segment of European society thinks, as the Council said, that circumcision represents a barbaric mutilation of a child. That is a legitimate position of conscience; indeed, it is a quasi-religious belief itself, in that it is based on deeply held moral views about essentially unverifiable matters. As a believer in the covenant of Abraham I do not share these views, but they are far from absurd if one does not accept the validity of the covenant.

A majority has a legitimate right and interest to conduct society according to its moral views when articulated in laws that are generally and equally applied. Government is in part an instrument for the expression and transmission of values, and all legislation takes explicit or implicit moral positions. If the values that stand behind generally applicable legislation conflict with the views of religious or ethnic minorities, the majority should not be neutered or have its values annulled to protect the sensibilities of minorities who hold different views.

There are some who think the law is discriminatory, aimed at the religious groups who practice circumcision. It seems to me that circumcision, in a non-religious context, is common [...]

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Court Tentatively Decides That State Law Preempts Proposed San Francisco Ban on Circumcision of Boys

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

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“No Account Shall Be Taken … of Any Belief … That the Operation Is Required as a Matter of Custom or Ritual”

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.

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Harshly Criticizing Religious and Cultural Figures and Practices

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 [...]

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Are the Proposed Circumcision Bans Motivated by Hostility to Jews (or Muslims)?

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 [...]

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Planned Anti-Circumcision-of-Boys Initiative in Santa Monica

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. [...]

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Proposed San Francisco Circumcision Ban, and Religious Freedom

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. [...]

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Proposed San Francisco Circumcision Ban (with No Discussion of Religious Freedom in This Post)

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, [...]

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