San Francisco has banned Happy Meals and, should enough signatures be gathered by the end of next month, voters will decide on whether to ban circumcision — meaning the Foreskin McNugget may never grace a local menu.
Every one of the platoon of lawyers SF Weekly consulted regarding the potential ban on circumcision stated it'd be a really bad idea. But that could be said of a great many laws San Francisco voters choose to enshrine in the city charter. Just because ideas are transcendentally bad doesn't mean they're unconstitutional. And, should San Francisco voters opt to criminalize the practice of circumcision within our borders, it would, lawyers say, not be illegal — not, at least, at the federal level.
"Would it be constitutional? Almost certainly," says Ashutosh Bhagwat of UC Hastings. Adds Jesse Choper of UC Berkeley's Boalt Hall School of Law, "Under the federal Constitution, unless you could show that the purpose of this was to disadvantage Jews generally, and since it's a neutral law and applies to everyone, it's not a violation of the free exercise clause."
Intriguingly, the precedent that would enable San Francisco to bust a bris and haul the rabbi off to jail is tied to peyote. In Employment Division vs. Smith (1990), the Supreme Court found that benefits could be denied to a man who used an illegal drug, even if its use was part of a religious ritual. While states can choose to accommodate illegal behavior tied to religious rituals, they aren't mandated to.
So is the circumcision ban a legal slam-dunk? Quite the opposite. California's state constitution takes a rather generous view of free exercise of religion. This means the ban's proponents would have to argue a compelling "state interest" to outlaw circumcision, an ancient practice exacted upon the penises of an estimated 79 percent of American men — many of whom, we're told, live productive lives.
"The court could say the state's interest would outweigh the free exercise of religion: If I'm an Aztec and my religion says I must go up on top of a high, pointed building and tear someone's heart out — that's nice, but we have a murder statute that trumps that," notes Peter Keane, dean emeritus of Golden Gate University. "In terms of a state interest in preventing the foreskin of a male infant from being detached — that is an interest that is very, very minor."
And if the lawyers are wrong? For S.F. residents, San Mateo County becomes Foreskin Town USA.