L. MARTIN Nussbaum, a Colorado Springs-based attorney, suggests that the proposed San Francisco ban on circumcision flies in the face of constitutional guarantees and human reason.
This ordinance, if enacted, has as much likelihood of withstanding constitutional scrutiny as a San Francisco city council ban on baptism to prevent children from drowning, Nussbaum tells the IJN.
My prediction is that there will be some cultural noise coming out of San Francisco, but in the long term this is not going anywhere.
The ballot measure has galvanized the American Jewish community.
Nussbaum, a partner in Rothgerber, Johnson & Lyons, represents churches, denominations, religious schools and other religious institutions across the US.
The MGM (male genital mutilation) bill that will be decided by San Francisco voters in November would criminalize circumcisions performed on boys under age 18 within the city limits.
Violation of the ban could result in a $1,000 fine and up to one year in jail.
Under the proposal, the only exception is compelling and immediate medical need not religion.
Nussbaum, who recites legal doctrines and rulings with the fluency of a poetry aficionado quoting beloved verse, asks whether the IJN has read the California state constitution.
He recommends accessing his website www.churchstatelaw.com, clicking on state constitutions, scrolling down the page and clicking on California.
The following appears under Religion Clauses, Article I, Section 4:
Free exercise and enjoyment of religion without discrimination or preference are guaranteed . . .
Nussbaum says hes concerned that the proposal raises some very large legal issues. For some people, circumcision is a customary practice for infants. Others believe it is beneficial for hygiene and health practices.
In the Jewish community, it is the rite of initiation by which one attaches himself to the ancient legal covenant in the Bible.
Im aware that the people backing the proposal are banning a core religious right, and they dont seem to care about that.
Profound constitutional problem
FOR anyone choosing circumcision to fulfill a religious obligation, this would create a profound constitutional problem, Nussbaum says. There is a freedom provision that is likely to apply and trigger a strict scrutiny analysis.
He outlines the three-tiered legal analysis.
First, under the free exercise provision, when circumcision is clearly a rite of religious initiation, this obviously is a core religious exercise issue, he says.
Then the court would ask, is it a governmental interest of the highest order. Its hard for me to imagine that any court could possibly find that banning circumcision would be supported by government interest of the highest order.
Nussbaum characterizes proponents use of language describing circumcision as male genital mutilation as extremely freighted. Theres a lot of rhetoric, but that should not affect the constitutional analysis.
He takes a momentary breath.
But theres more.
Nussbaum points out that the US Supreme Court has recognized the First Amendment as pronouncing the doctrine of church autonomy. This is a fundamental doctrine in that it implements the separation of state from church.
The doctrine grants to religious societies a sphere of influence over which they are sovereign, he says. Those activities would include religious rites related to initiation into a religious society.
In other words, this is the synagogues business or the churchs business.
The third strand of analysis concerns the right of privacy as delineated by the US Supreme Court.
For those parents choosing circumcision for their sons other than for religious reasons, I think even their choices would be protected under the right of privacy, Nussbaum says.
If that right has been applied, for example, to strike down laws prohibiting contraception, it cant regulate a minor medical procedure for their sons.
Referring to a final constitutional doctrine, Nussbaum says that the courts have recognized the fundamental rights of parents to educate and raise their children since the early 1900s.
Parents have constitutional rights to make certain choices regarding their children, he says. Circumcision is both a medical and a social choice.
For many parents without religious scruples, circumcision is a custom in their ethnic group or family similar to determining when a child is old enough to have his or her ears pierced.
Targeting the Jewish community?
ACCORDING to a New York Times report published Aug. 17, 2010, infant circumcision is rapidly declining in the US, down from 56% in 2006 to 32.5% in 2009.
Although the procedure has been associated with lowering AIDS, HIV and sexually transmitted disease rates, parents are hesitating in greater numbers.
For the vast majority of Jewish parents, however, brit milah has one purpose sealing the covenant between the male Jewish baby and the G-d of Abraham.
Nussbaum is highly attuned to the personal significance of religious ritual in his own life.
I myself am Roman Catholic, says Nussbaum, who studies Talmud in his spare time. Prohibiting circumcision in the Jewish community would be like denying Catholics the baptismal waters.
Many Christians choose circumcision because they want to be part of the Abrahamic covenant, he adds. They claim Abraham as their spiritual forefather as well.
Whether anti-Semitism motivates the San Francisco proposal Santa Monica recently dropped its anti-circumcision measure from its November ballot is difficult to ascertain, he says.
In the Santa Monica resolution, where the language stated that religious reasons would not constitute an exemption to the ban, this suggests to me that they may have been targeting the Jewish community.
The San Francisco measure also limits exclusions to instances of medical necessity.
If the courts uncovered evidence that the San Francisco bill is intentionally directed at Jews, it would be unconstitutional on those grounds, Nussbaum says.
Copyright © 2011 by the Intermountain Jewish News
