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

| June 8, 2011
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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.)

Dr. Rachel Seay performs a circumcision at George Washington University Hospital.

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

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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

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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

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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

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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

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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

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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

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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

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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.

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Category: Health, Religion, San Francisco

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  • http://www.youtube.com/user/Bonobo3D James Loewen

    Carving religion into a child’s genitals should be illegal.

    Whether or not this bill passes when it goes to a vote in San Francisco in November is unimportant. The publicity this has received world wide is tremendous. The circumcision rates in the USA have dropped dramatically in the last few years. As a result of the publicity this ban has generated even more parents will be looking into this issue and ultimately protecting their children from genital cutting.

    Forced circumcision is medical fraud. Even many Jewish parents say no to it and welcome their baby boys in a non-cutting naming ceremony Brit Shalom.

  • http://www.facebook.com/pages/Celebrities-Against-Circumcision/194824483872404 Susan Blustein

    Title 18 – Crimes and Criminal Procedure

    Part I – Crimes

    Chapter 7 – Assault

    Section 116 – Female genital mutilation

    (a) Except as provided in subsection (b), whoever knowingly circumcises, excises, or infibulates the whole or any part of the labia majora or labia minora or clitoris of another person who has not attained the age of 18 years shall be fined under this title or imprisoned not more than 5 years, or both.

    (c) In applying subsection (b)(1), no account shall be taken of the effect on the person on whom the operation is to be performed of any belief on the part of that person, or any other person, that the operation is required as a matter of custom or ritual.

    Section 645(a) of div. C of Pub. L. 104-208 provided that: “The Congress finds that–
    “(1) the practice of female genital mutilation is carried out by members of certain cultural and religious groups within the United States;
    “(2) the practice of female genital mutilation often results in the occurrence of physical and psychological health effects that harm the women involved;
    “(3) such mutilation infringes upon the guarantees of rights secured by Federal and State law, both statutory and constitutional;
    “(4) the unique circumstances surrounding the practice of female genital mutilation place it beyond the ability of any single State or local jurisdiction to control;
    “(5) the practice of female genital mutilation can be prohibited without abridging the exercise of any rights guaranteed under the first amendment to the Constitution or under any other law…

    Ok, now:

    Text of Section 1 of the Fourteenth Amendment to the United States Constitution

    “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

    So. Explain exactly why a ritual pinprick in a clitoral hood (far less damaging, as is removal of the clitoral hood/prepuce, than the analog male prepuce, with far more nerve endings) will send a person to Federal prison regardless of ‘custom or ritual’.

    FGM is often done in modern clinics, and MGM is just as often performed in barbarous and unsanitary ones. Deaths & sexual dysfunction occur from both; all involve mutilation (well, not the pinprick) of the genitals of an unconsenting minor.

    I do not hear much bleating about the First Amendment rights of Muslims being abridged (regarding FGM or MGM).

    There is simply no Constitutional case that can be honestly made after presentation of the facts. You may allow all religions to genitally mutilate (to whatever extent deemed ‘acceptable’) minors of both sexes, or none.

  • http://twitter.com/KOTFrank Frank McGinness

    The inequalities of circumcision and baptism are apparent. There are deaths reported every year due to circumcision, RIP Jamaal Coleson. To better understand this consider Dr. John Taylor, a heart and circumcision expert at CIRP.ORG Newsletter October.

    Any exemption makes the bill subject to inequality. Note the bill is crafted without being sexist it does not say male so it should somewhat protect intersex.

    THE QUESTION we should be asking:
    Is it okay to cut off part of someone’s body without their permission? YES OR NO!

    KOTFrank on twitter

  • Doulalee

    NO! It is never okay to chop off parts of another persons body! Only money making profiteers tout the benefits of circumcision, of which there are none. This is a human rights violation at its worst!

  • Steve C

    I have to love the freedom of religion slant that the ADL and the media just seem to keep slamming us with. Some of these people will think nothing of eating bacon or ham, just conveniently sidestepping their religious fervor when it’s convenient, but the second something comes along where they have a chance to save an important part of their child, suddenly they’re all devout again. They pick and choose what parts of their scriptures to follow, like “this is less important, so it’s not critical that I have to follow that rule, but this rule is ever so urgent, so I have to stay firm on that rule”

    You’re either a devout follower of your faith, or your just full of hot air in any decision you make.

    Just like the 10 commandments of the Christian faith, how convienient they find it to forget “Thou shalt not steal” while they copy music and movies because everyone does it, or “Thou shalt not commit adultery” just because their wives don’t treat them better. Those people are full of hot air too.

  • http://www.foregen.org Greg

    I am genitally cut and hate it like 200,000 other men restoring their foreskin to undo some of the damage and sexual diminishment of genital cutting: http://www.tlctugger.com We would have said NO to having our penises being genitally mutilated against our will.

    Keep your kids intact all the info you need: http://www.WholeNetwork.org Doctors Oppose it: http://www.DoctorsOpposingCircumcision.org Jews oppose it http://www.JewsAgainstCircumcision.org

  • http://www.foregen.org Greg

    Your religious freedom ends where my body and my human rights begin. There is no religious exemption for female circumcision.

    Jews Against Circ Bris shalom requires no cutting and my Jewish friends kept their kids intact: http://www.JewsAgainstCircumcision.org

    Muslims against circ: http://www.quranicpath.com/misconceptions/circumcision.html

  • http://www.foregen.org Greg

    -No medical organization in the WORLD recommends routine infant genital cutting of males and females

    -80% of the world’s men are intact, happy, and healthy and do not elect to get genitally cut.

    Keep your kids intact all the info you need: http://www.wholenetwork.org

    and tell me how he sounds and how it makes you feel

  • http://www.foregen.org Greg

    Watch this video of a baby boy being genitally cut: http://www.youtube.com/watch?v=bRIT5IdTpgY

  • Greg

    Over 100 infants die each year from genital cutting(that’s just reported, many more unreported) in JUST THE US many more worldwide: http://www.icgi.org/2010/04/infant-circumcision-causes-100-deaths-each-year-in-us/

    This baby just died a few months ago in Queens NYC from genital cutting: http://www.drmomma.org/2011/05/queens-baby-dies-on-table-during.html

    All these deaths and rks are COMPLETELY AVOIDABLE by keeping your kids intact and whole as they’re born. This is medically unnecessary and no medical organization in the world recommends male or female infant genital cutting. Do not risk your child’s life and his suffering as an adult http://www.tlctugger.com

  • http://TLCTugger.com Ron Low

    There were no 14th Amendment experts available?

    Girls are protected from even a pin-poke to draw one ceremonial drop of blood (with religious exemption). The 14th amendment demands equal protection under the law.

    Further a competent 1st amendment lawyer would know it’s settled law that you can’t harm or neglect a child in the name of religion. Religious snake handling, tattoos, child marriage, denial of blood transfusion, and female genital cutting have all been addressed in court.