Opening Statements

Cutting Edge: San Francisco Judge Orders Circumcision Measure Off the Ballot

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In an unusual move, a San Francisco Superior Court judge ordered this summer that a proposed city measure, scheduled for a November vote, be removed from the ballot. Backed by “intactivists” and receiving more than 7,000 signatures from San Franciscans, the measure sought to ban circumcisions of boys under 18.

The measure would have made violating the ban a misdemeanor, punishable by a $1,000 fine, a prison term of up to one year or both.

Proponents had argued that circumcision is a form of genital mutilation. Moreover, the ballot measure offered no exemptions based on religion, culture or personal preference. The judge struck the measure, holding that only states, not cities, can regulate medical procedures.

The proposed ban was widely controversial, particularly among Jewish and Muslim groups, the two major religions that practice circumcision as a sacred ritual.

A 1970 study estimated that as many as 97 percent of all boys and men in the United States had been circumcised, in comparison with 70 percent of those in Australia, 48 percent of those in Canada and 24 percent in the United Kingdom. Subsequent studies of circumcised males have cited such health benefits as prevention of penile cancer, urinary tract infections and the sexual transmission of HIV/AIDS.

However, in 2005 the American Academy of Pediatrics reiterated its long-standing position that such medical evidence remains insufficient for it to recommend the procedure for male children.

In an early response to San Francisco’s proposed measure, Los Angeles Congressman Brad Sherman planned to introduce legislation to prohibit circumcision bans and preserve circumcision as a family matter. The Religious and Parental Rights Defense Act of 2011 was co-sponsored by Rep. Keith Ellison of Minnesota, the first Muslim elected to Congress.

Eugene Volokh, a constitutional law professor at UCLA School of Law, says even if San Francisco’s ban had remained on the ballot and passed, it would have been subject to complex constitutional claims, including arguments based on the First Amendment, parental rights and the California constitution’s religious freedom guarantee.

“The first constitutional theory is that the ban is invalid on its face because it’s an attempt to discriminate against Jews and Muslims,” Volokh explains. But that argument was unlikely to succeed. “Just because some backers may have racist views doesn’t mean the initiative is invalid.” The “real action,” according to Volokh, would have been the claim based on parental rights, namely that parents have a presumptive constitutional right—one that the state may not take away without justification—to make medical decisions for their children.

But the parental rights doctrine is not well-settled, Volokh adds. “While parents have a right to make medical decisions, those cases usually involve emergency medical treatment or routine treatment with no long-term consequences. There isn’t much case law on parents deciding to excise healthy tissue.”

Still, he says, judges probably would have been hesitant to prohibit a common practice that has been around for hundreds of years in this country, and courts would likely have been friendly to religious exemption claims.

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