A San Francisco ballot measure would ban circumcision. Is that legal?

A ritual circumcision

An initiative to ban the circumcision of male minors—with fines up to $1,000 or one year in jail— made it onto San Francisco’s November ballot on Wednesday. More than 7,700 San Francisco residents have signed the proposal, which deems foreskin-snipping an invasive medical procedure. Jewish and Muslim communities, in which circumcision is an important tradition, claim the ban would violate their constitutional freedoms. Can the government prevent a religious group from practicing a religious rite?

Yes, with a good enough reason. The First Amendment prevents Congress from “prohibiting the free exercise” of religion, and laws that specifically target religious practice—a ban on ringing church bells, for example—are unconstitutional. But in certain circumstances, it’s OK if a broadly written law, or what the Supreme Court calls “neutral law of general applicability,” curtails religious freedoms. (A broadly written alternative to the church-bell law might ban the ringing of bells, in churches or elsewhere, above a certain decibel level.) Federal regulations are subject to the 1993 Religious Freedom Restoration Act, which says the government can’t “substantially burden religious exercise” unless doing so promotes a “compelling government interest” (and there isn’t a less burdensome alternative). The scope of the terms “substantial burden” and “compelling interest” is, of course, up to interpretation.

The most notable recent RFRA-related case involved the American branch of a Brazil-based religious sect that tried to import more than 30 gallons of a sacramental tea containing dimethyltryptamine, a hallucinogen banned in the United States. Customs inspectors seized the tea, which the church considered a violation of its religious freedoms. The Supreme Court ruled in favor of the church in 2006, finding that the government didn’t have a compelling enough reason to prevent the church members from tripping. (It helped that the government had already granted Controlled Substance Act exceptions to Native Americans who feel religiously obligated to use peyote.)

But ever since the 1997 Supreme Court ruling in City of Boerne v. Flores, the RFRA doesn’t apply to the states. The court upheld a Boerne, Texas, historical-preservation ordinance that had prevented the Catholic archbishop of San Antonio from expanding a church in Boerne. (The archbishop argued that his congregation could no longer fit in the original building, so the city’s ordinance substantially burdened his religious responsibilities.) The Boerne ruling effectively says that while states can provide religious exemptions for otherwise illegal acts, they don’t have to. Some states, including Rhode Island and Illinois, have passed their own versions of the federal RFRA, which vary in strength. Elsewhere, it’s up to the state supreme courts to provide their own interpretations of state constitutional provisions protecting religious liberty.

California is one of the states without its own RFRA. (In 1998, the state legislature passed a RFRA, but Gov. Pete Wilson vetoed the bill, apparently concerned that prisoners would take too much advantage of it.) And in the few instances when the California Supreme Court has had to define its stance on religious freedoms, it has ducked the question. There’s virtually no question that if voters approve the San Francisco proposal, the ordinance will be challenged in court. If the California Supreme Court decides to apply a rigorous, RFRA-like standard, the city will have to provide some scientific evidence that it has a compelling interest to keep boys’ foreskins intact.

There’s been much debate over whether circumcision is a heath-demoting, health-promoting, or health-neutral operation, but the proposal’s proponents might have a tough time making their case, considering that the neither the American Medical Association nor the Centers for Disease Control explicitly recommends against circumcision. The American Academy of Pediatrics’ policy statement says that in most cases, “parents should determine what is in the best interest of the child,” precisely what the San Francisco proposal is trying to end.

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Explainer thanks Alan Brownstein of the UC-Davis School of Law, Howard M. Friedman of the University of Toledo College of Law and editor of Religion Clause, and Richard Garnett of Notre Dame Law School.