Interviews: Circumcision Ban Proponent Explains His Views; 1st Amendment Lawyer on Why Ban is Unconstitutional

I’ve yet to meet the class act able to resist the compulsion to pun when first mentioning the controversial circumcision ban proposed in San Francisco. (Guilty, by the way.)

Pedestrian cleverness aside, it’s pretty clear by now that this is a volatile issue. Questions of religious freedom and perceived anti-semitism have entered the debate, provoking emotional responses on both sides.

A few days ago, The California Report’s Rachael Myrow interviewed Lloyd Schofield, the San Francisco resident who is the official proponent of the circumcision ban that has qualified for the November ballot. The interview, I think, provides an interesting window into the thinking behind anti-circumcision advocates. The interview is followed by one with a First Amendment lawyer who specializes in defending religious practices, who thinks that the bill, even if it passes, is going nowhere fast, because of the heavy burden courts have placed on legislation attempting to restrict the free exercise of religion.

Lloyd Schofield on how he became involved in the anti-circumcision movement

About two years ago, Schofield noticed advocates at various events and began to study the issue. He gradually became more involved.

Lloyd Schofield on whether he’s circumcised

Schofield doesn’t want to answer the question because he doesn’t want to make the issue personal. He thinks the decision to be circumcised should be the choice of each male when he’s over 18 years old.

Schofield on the question of the Jewish ritual of the bris

Schofield says that many Jews are supportive of the movement. He says that for many who get their sons circumcised, the ceremony has no religious significance.

On the failure to interest anyone on the Board of Supervisors

Proponents decided to try the ban in San Francisco, because of the city’s history in protecting animals from harm. But there was no interest among the Board of Supervisors in taking up the legislation.

On the legality of the law and the lack of a religious exemption

Schofield believes it would be discriminatory to leave males born into religious families subject to exemption from the ban. He also thinks including a religious exemption would make the law toothless. As to the question of the likelihood of the law not passing legal scrutiny, Schofield believes the procedure is so violent that it should be equated with female genital mutilation, which is outlawed. Thus, he believes that any ban should be ruled legal under the Equal Protection Clause of the U.S. Constitution.

It should be noted that Lloyd Schofield himself didn’t write the circumcision ban — that was done by Matthew Hess of MGMBill.org, an organization that proposes local, state, and federal legislation — so far to no success – outlawing circumcision. (Hess is also the creator of an online comic called “Foreskin Man,” which some have called anti-semitic.)

“The bills are modeled on existing federal and state female genital mutilation laws, so much of the language is similar to those statutes,” Hess wrote Rachael Myrow in an email.

But Martin Nussbaum, a First Amendment attorney from Colorado Springs whose law firm represents religious institutions nationwide, thinks it extremely unlikely that the ban, even if it did pass, would be upheld by the courts. Listen to Rachael Myrow’s interview with Nussbaum below:

Attorney Martin Nussbaum says these anti-circumcision bills are illegal on their face

Nussbaum says these bans are no more constitutional than those that might outlaw baptism because of the risk of drowning. He says the laws run afoul of many constitutional values.

Nussbaum describes the constitutional problems with the law

Nussbaum says the ban is illegal under both the California constitution and the First Amendment. The court would have to asses whether the government’s interest in a ban is of the highest order, which is unlikely. Also, in its declaration that religious belief specifically won’t be taken into account in making exceptions, the bill targets religion, Nussbaum says, and is on its face unconstitutional.

Nussbaum describes some the precedents under which other attempts to criminalize religious practices have failed

A number of precedents have been established in which the courts have ruled against the outlawing of certain religious rites or practices. When the interest of government in banning certain religiously motivated actions, such as keeping children out of school, the free exercise of religion has usually been found to be more compelling. Thus, under a variety of legal doctrines, the circumcision ban is very unlikely to pass constitutional muster.

Also today, on KQED’s Forum radio show, Rachael Myrow hosted an hour-long discussion covering the different aspects of the issue. Lloyd Schofield appeared with Abby Michelson Porth, associate director of the Jewish Community Relations Council, part of a coalition opposing the measure; and Laurence Baskin, chief of pediatric urology at UCSF Benioff Children’s Hospital.

Listen below

There’s also quite a discussion going on in the Forum comments section.

Related:

• Santa Monica won’t vote on circumcision (SF Chronicle)