Santa Monica Also Considering a Ban on Male Circumcision: A Test Case for Popular Constitutionalism?

Last week, I wrote about a pending ballot initiative in San Francisco that would prohibit male circumcision---that is, the surgical removal of the foreskin of the penis---for children under age 18. The proposal includes no religious exception, which is problematic for Jews, Muslims, and a growing set of Evangelical Christians, who practice the ritual circumcision of infant boys in fulfillment or commemoration of Abraham's biblical covenant with God. Though the proposed statute, therefore, obviously interferes with the free exercise of sincerely held religious beliefs, I noted that the Supreme Court's now-controlling interpretation of the First Amendment's Free Exercise Clause provides no remedy for those who would be so constrained by the proposed law.

In the 1990 case of Employment Division v. Smith, the Supreme Court ruled that "neutral laws of general applicability" which nevertheless interfere with the free exercise of religion are constitutionally valid. The Court reasoned that a requirement for religious exemptions from ordinary legislation would produce a chaos, with large numbers of people claiming religious exemptions from all sorts of important and otherwise reasonable policies, from:

compulsory military service, to the payment of taxes, to health and safety regulation such as manslaughter and child neglect laws, compulsory vaccination laws, drug laws and traffic laws; to social welfare legislation such as minimum wage laws, child labor laws, animal cruelty laws,, and laws providing for equality of opportunity for the races... environmental protection laws,
[Citations omitted.]

So long as a law has no discriminatory intent, states and the federal government may, therefore, regulate behavior in ways that contradict individuals' religious beliefs and practices. Therefore, no matter how important, sacred, or pivotal a particular practice may be to members of a particular faith, the First Amendment, as it is currently applied by the Supreme Court, offers little protection against policies that interfere with that practice.

Now, this morning, I learn via a story linked on the Drudge Report, that the city of Santa Monica, CA is also considering a similar ban on childhood male circumcision.

I have been thinking about these two ballot initiative efforts in the context of judicial power, constitutional interpretation, and legislative decision-making.

Almost inevitably, a law good-faith law of neutral application (i.e. a law that is not made with the intent of discriminating against members of a particular religious faith or set of faiths) that nevertheless interferes with some religious practices requires some sort of balancing to determine its constitutionality. Is the public purpose achieved by a law of sufficient importance or value as to justify the establishment of an impediment to religious freedom created by that law? This is precisely the sort of evaluation that courts make when considering laws that discriminate on the basis of race, for example.

Employment Division v. Smith and the Supreme Court's other recent Free Exercise cases, though, establish a rule that courts will not engage in evaluating the struck between the general welfare and individual liberty with respect to the exercise of religious faith. Under these cases, cases arising under the Free Exercise Clause are functionally not justiciable, unless they deal with discriminatory laws, which would not be the case under the proposed California circumcision bans. This lack of justiciability, however, neither eliminates nor attenuates the right of the people to freedom of religion. It does, however, relocate the principal venue in which that right must be protected from the judicial process to the legislative process---be that one involving a representative legislature or the people themselves acting through an initiative.

Barring a major reversal in the Supreme Court's interpretation of the Free Exercise Clause, the Supreme Court has created an important test case for the ideas of popular constitutionalists. Popular constitutionalism is a theory of constitutional interpretation and understanding that proceeds from the notion that the United States Constitution represents a limited grant of authority from the People, as they are currently constituted, to the federal government and, in some other respects, to the states. In other words, though the Constitution was written and ratified long a go it should be taken to represent the controlling views of the People today over what the government is empowered to do and what it is prohibited from doing. This perspective has several implications. At a minimum, it suggests that courts, including the Supreme Court, owe substantial deference to decisions made by elected institutions about the constitutionality of laws in general. More broadly, though, it suggests that the People have substantial authority and responsibility to determine the scope of government authority and, by extension, their own rights and liberties.

Laws that interfere with the Free Exercise of now offer the prospect of some actual experience with popular constitutionalism in practice. Since these laws will not be overturned by courts if they are passed, it is up to the people of San Francisco and Santa Monica to decide whether the purported harm done to infant boys who are circumcised is sufficiently large as to justify the prohibition of an important religious ritual for some of their fellow citizens. The People of San Francisco and Santa Monica are, therefore, now collectively the guardians of their own religious rights. I hope that they will use it wisely.

I add, in closing, a caveat about the extent to which the circumcision ballot initiatives could be considered an experiment in popular constitutionalism. Though current case law indicates that federal courts will not invalidate these laws, the judiciary's otherwise functionally boundless exercise of judicial review has created a broad expectation that it will perform this function among members of the general public. The existence and pervasiveness of the judicial safety-net of constitutional rights may have eroded the public's propensity to be vigilant about its constitutional rights.

This seems to be the case in San Francisco, where opponents of the circumcision ban seem to be proceeding on the basis of a strong belief that courts will ultimately prevent the ban from taking effect:

"For a city that's renowned for being progressive and open-minded, to even have to consider such an intolerant proposition ... it sets a dangerous precedent for all cities and states," said Rabbi Gil Yosef Leeds of Berkeley. Rabbi Leeds is a certified "mohel," the person who traditionally performs ritual circumcisions in the Jewish faith.

He said he receives phone calls every day from members of the local Jewish community who are concerned about the proposed ban. But he said he is relatively confident that even if the measure is approved, it will be abruptly—and indefinitely—tied up in litigation.

If People expect that courts will protect their rights against some deviant legislative process, then their expected incentives for taking on the costs of defending their own liberties through political action will be reduced. As a result, a false expectation of judicial review actually creates conditions that enhance the prospects of rights being violated. In some sense, courts have atrophied the political sensibilities and behaviors that allow the People to guard their own liberties and make reasonable judgments about the appropriate balance to strike between minority rights and the general welfare. It make take a substantial shock to the system to start a rehabilitation of the political muscles that must animate popular constitutionalism.