Thursday, May 19, 2011

A Very Long Post: Thoughts on San Francisco's Proposed Circumcision Ban, Rights, and Courts

The Wall Street Journal reports that an initiative to ban male circumcision has qualified for the ballot in San Francisco.
A group seeking to ban the circumcision of male children in San Francisco has succeeded in getting their controversial measure on the November ballot, meaning voters will be asked to weigh in on what until now has been a private family matter.

City elections officials confirmed Wednesday that the initiative had received enough signatures to appear on the ballot, getting more than 7,700 valid signatures from city residents. Initiatives must receive at least 7,168 signatures to qualify.
If the measure passes, circumcision would be prohibited among males under the age of 18. The practice would become a misdemeanor offense punishable by a fine of up to $1,000 or up to one year in jail. There would be no religious exemptions. [Emphasis added.]
As you may know, Jews and Muslims traditionally circumcise young boys in fulfillment or recognition of Abraham's covenant with God. The practice is also increasingly common among Evangelical Christians. Banning circumcision altogether would, therefore, prohibit adherents of these faiths from performing an ancient, important, and richly symbolic religious rite, at least within the boundaries of San Francisco.

This would seemingly conflict with the Free Exercise Clause of the First Amendment (applied to the states through the Fourteenth Amendment):
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. [Emphasis added.]
Indeed, the Wall Street Journal's report makes it clear that opponents of the ballot initiative are counting on a legal challenge to the law to prevent its enforcement should it be approved by the city's voters.
Banning circumcision would almost certainly prompt a flurry of legal challenges alleging violations of the First Amendment's guarantee of the freedom to exercise one's religious beliefs....

"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.
Article I, Section 4 of California's state constitution provides a fair extensive protection of religious freedom that may invalidate the San Francisco ordinance, should it pass:

Free exercise and enjoyment of religion without discrimination or preference are guaranteed. This liberty of conscience does not excuse acts that are licentious or inconsistent with the peace or safety of the State.  The Legislature shall make no law respecting an establishment of religion.   

A person is not incompetent to be a witness or juror because of his or her opinions on religious beliefs.

However, the United States Constitution, as it is currently interpreted by the Supreme Court, offers surprising little protection from anti-circumcision legislation.

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.

The Supreme Court's decision is completely reasonable, though others may prefer to strike a difference balance between individual faith and social order. Regardless of one's preferred interpretation of the Free Exercise Clause though, as a practical matter, free exercise rights currently enjoy remarkably little judicially enforceable protection. How then are those rights to be protected?

The answer is that they must be protected, if they are to be protected at all, by citizens acting through the ordinary political process. That is a scary proposition to many of us who have been taught to regard courts as the obvious, natural, and only defender of rights against the dreaded tyranny of the majority. Damon Root, writing about reemergent liberal criticisms of judicial power at Reason's Hit&Run blog, nicely reflects this perspective:
The American judiciary was designed to be an anti-democratic institution. James Madison called it “an impenetrable bulwark against every assumption of power in the legislative or executive." The idea is that the courts are uniquely situated to protect both individual liberties and unpopular minorities against the tyranny of the majority. Judges do this (if they do it) by striking down democratically-enacted laws.
However, Root is wrong when he uniquely weds rights to courts. (His is also wrong about James Madison---Madison was arguing, in this passage at least, that courts could protect the people from an abusive, i.e. unfaithful, legislature or executive, not that courts could, should, or would protect political minorities from majorities.)

Though it is surely the case that courts have stepped in to protect political minorities from oppressive actions by majorities at various points in American history, courts have also condoned or expanded horrible violations of personal liberty and freedom. For example, in 1857, the Supreme Court ruled that Americans of African ancestry were not citizens of the United States and invalidated federal legislation to prevent the spread of slavery in federal territories (Dred Scott v. Sandford). In 1875, the Supreme Court rejected the claim that the Fourteenth Amendment conferred the right of women to vote on equal terms with men (Minor v. Happersett). In 1898, the Supreme Court endorsed legal segregation of the races under the banner of "separate but equal," provoking a wave of new segregationist policies in the SouthPlessy v. Ferguson). In 1944, the Court ruled that the internment of Japanese-Americans during WWII was constitutionally permissible (Korematsu v. United States). In each of the cases, the Supreme Court sided with or led opponents of basic civil liberties. (

The history of liberty in the country is at least as much about the (often painfully slow) extension of rights and freedoms by majorities (and those in power) to minorities (and those excluded from the political process) without the intervention of courts. Slavery was eliminated by executive order and constitutional amendment supported by the bloodiest war in American history. Women were granted suffrage by constitutional amendment. Japanese Americans were freed from interment by the same institutions that had imprisoned them and were later granted reparations by an Act of Congress. Even in the case of ending legal segregation in the South, judicial decisions commanding integration had little effect on the practice of integration without the backing of the elected branches of national government, such as President Eisenhower's use of the 101st Airborne to integrate Central High School in Little Rock or the Civil Rights Act of 1964 enacted by Congress at the urging of President Johnson.

Not only is the federal judiciary's record of effective countermajoritarianism  inconsistent at best, the structure of the American separation of powers makes a strictly countermajoritarian court effectively impossible. A Supreme Court that always and only countermands majoritarian policy choices would sooner or later find Congress eagerly exercising its various prerogatives to curb, control, and undermine judicial power and independence. In the end, courts survive and institutionalize as majoritarian institutions. They are, in the long run, at least, no more able to protect individual rights and liberties from democratic political forces than other branches of government.

An important implication of the fragility of judicial power is that our space of rights and liberties is, actually, less fragile than it appears. Despite the common notion of courts as bulwarks against encroachment of our rights, the people are the principal guardians of their own liberties. We generally enjoy freedom of speech, press, worship, and conscience, among other liberties, because we demand these things of our government and work against those who trespass against our understanding of our rights and freedoms. Courts may be agents of these efforts from time to time, but such agency on behalf of liberty is not exclusively their prerogative.

Returning to San Francisco, the rights of those whose faiths prescribe the circumcision of male children will ultimately be protected, or not, by their fellow citizens in San Francisco, California, and elsewhere in the United States who vote against the initiative, seek to overturn it in the state legislature, or work for federal action to protect a greater space of religious freedom.

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