Circumcision ballot measure is assault on religious freedom

Friday, June 10, 2011

Editor’s note: This commentary originally appeared June 9 on The Washington Post’s website. Reprinted by permission.

Californians like to vote on just about everything — which may explain why the state has become an ungovernable mess.

But now San Francisco has gone a ballot measure too far by giving voters an opportunity to ban male circumcision of minors when they go to the polls this November. If it passes, the law would effectively prohibit Jews and Muslims from practicing their faith within city limits.

The anti-circumcision referendum is both wrong and dangerous because it subjects religious freedom to a popular vote. As Justice Robert Jackson wrote in West Virginia v. Barnette (1943):

“One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to a vote; they depend on the outcome of no elections.”

Absent compelling medical evidence that the circumcision ritual causes serious harm (and no such evidence exists), a law banning the procedure would be an unconstitutional infringement on the free-exercise rights of Jews and Muslims.

Of course, opponents of circumcision — who call themselves “intactivists” — are free to make their argument against a medical procedure they consider “male genital mutilation.” But what they should not be free to do is criminalize a religious ritual that medical authorities generally agree is not harmful.

If the anti-circumcision law passes, some religious leaders seem confident that the courts will exempt Jews and Muslims from the ban. But given the weak state of free-exercise protection under current law, I’m not so sure they can count on the First Amendment.

Since the U.S. Supreme Court’s decision in Employment Division v. Smith (1990), government no longer need demonstrate a “compelling state interest” when evaluating a religious claim for exemption to a generally applicable law that does not target religion.

In other words, a neutral law that applies to everyone (like the anti-circumcision proposal) would prevail over a free-exercise claim — no matter how much it burdens religious practice.

Whether the ritual of male circumcision practiced by millions of Jews and Muslims is good or bad is not for voters to determine. Pardon the pun, but Justice Sandra Day O’Connor put it best: “We do not count heads before enforcing the First Amendment.”

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