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On Leaving More Than Your Heart in San Francisco
Shortly after our son was born, my wife and I discussed his brit milah (covenantal ritual circumcision). We did not discuss whether to have the ceremony. The discussion was all about who would perform it, where it would be held and other such logistics.
We decided to secure the best mohel (circumcisor) we could, and we did. They called him Shakey Goldstein, but whatever anxiety we new parents might have felt about Shakey were dispelled when we met him. He was a lovely man, with huge and steady, yet gentle, hands. And he had a tool kit that would make the Swiss Army knife folks drool.
Into those large hands, we entrusted our son. The ceremony was over in a flash. Shakey mumbled and snipped and mumbled some more. Everyone cried, except the kid. I cried. My wife cried. All of our parents cried. The kid? He did not have a very good view of things, and he seemed content to suck on the drops of wine he received during the event.
And when it was all over, the crowd sang and clapped hands. The applause was not for Shakey, though, or for us. The applause was for something greater, for the new link in the chain we had just forged, a chain I can trace back only four generations. But I know that the chain is longer than that, perhaps thousands of years long. And I honor that chain. For one mother’s perspective, see, http://www.huffingtonpost.com/susan-auerbach/mothers-jewish-circumcision_b_887051.html
Why do I tell you this? Well, it’s not because I have become a convert to “sharing.” It’s because of a movement in San Francisco to ban circumcisions, to make permitting or performing them a criminal act, punishable by jail time as well as a fine.
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The practice of circumcision is noted early in the Bible. The Biblical God is recorded as recognizing a covenant with Avraham and his offspring, and commanding Avraham to circumcise the flesh of his foreskin as a sign of that covenant. See, Genesis 17:9-14 (Parashah Lech L’cha). For religious reasons, Muslims practice circumcision as well.
Circumcisions are performed without a religious basis, as well. Indeed, well over half of the male children in the United States are circumcised as infants. Conversely, male circumcision is rare to non-existent in South America, Asia and much of Europe.
Earlier this year, a San Diego based organization claiming that circumcision was male genital mutilation initiated an effort to introduce legislation in Congress, in various states and in certain local jurisdictions to ban circumcision of young males. See, www.MGMbill.org. In San Francisco, MGMbill succeeded in securing enough signatures to place the issue on the ballot in November. That a referendum on circumcision will apparently occur raises serious questions. Let’s focus on science and the law.
If you are looking for the scientific underpinnings of the proponents of the ban, you will not find much at the ban proponents’ website. The website concedes that circumcision may reduce susceptibility to certain diseases, but asserts that “(m)any men” previously circumcised “suffer the same psychological effects found in rape victims.” Moreover, it claims that a “sense of great loss and feelings of anger, distrust and grief” are “common” among circumcised men, that they encounter problems with intimacy, post-traumatic stress and personal powerlessness. Oy!
While there are no doubt individuals who may have had a bad experience associated with circumcision, and they deserve our empathy, the suggestion that the claimed circumstances are prevalent is not credible. If the adverse consequences of circumcision were as dire as the ban proponents suggest, with well over half of all male children having been circumcised in the United States for many years, there should be a large population of affected boys and men whose behavior exhibits some signs of such disorders, especially in contrast with the other portion of the male population which has not been circumcised. The MGMbill website, however, does not provide any evidence of any statistically significant difference in the mental health of the two populations at all, let alone differences which are attributable solely to a neonatal circumcision, and not influenced by age, race, ethnicity, national origin, religion, education, economic class, or some other factor.
In 1999, the American Academy of Pediatrics issued a policy statement on circumcision, one which acknowledged “potential benefits” of circumcision, but stated that those benefits were “not sufficient to recommend routine neonatal circumcision.” See, http://pediatrics.aappublications.org/content/103/3/686.full. AAP reaffirmed its statement in 2005. While hardly an endorsement of circumcision, the AAP statement clearly does not characterize the procedure as mutilation and provides no documented medical rationale for a complete ban. Instead, it calls for education and parental choice, and recognizes that it is “legitimate for parents to take into account cultural, religious, and ethnic traditions . . . .”
Subsequently, at least two other papers have been published which more strongly identify the benefits of circumcision on medical grounds. One, by Dr. Edgar Schoen, was published in “PEDIATRICS” in July, 2006. See, http://pediatrics.aappublications.org/content/118/1/385.full.html. There Dr. Schoen discusses new studies which provide “compelling evidence” of multiple medical benefits of circumcisions with respect to prevention of HIV, penile cancer, and infant urinary tract infections and “protection against penile dermatoses, human papilloma virus, cervical cancer, and chlamydia infection.” (Internal citations omitted.) See also, “PEDIATRICS” (April, 2007) at http://pediatrics.aappublications.org/content/119/4/821.full.html.
The point here is not to debate the medical benefits, real or potential, of circumcision. Rather, it is to note the stark absence of any compelling medical evidence of a proven immediate or latent detrimental effect that circumcision has when the procedure is performed properly. Simply put, ban proponents have failed to meet the burden of demonstrating any meaningful scientific basis for their proposal.
The absence of carefully structured and controlled adverse medical studies is important in and of itself, of course, but also for the legal issues which arise from the San Francisco referendum. The First Amendment to the United States Constitution prohibits the federal government from interfering in a citizen’s free exercise of religion. Under the Fourteenth Amendment to the federal constitution, that prohibition extends to the states and to local governmental units as well.
Constitutional rights, though, however absolute the language in which they are written, are not, you should excuse the expression, carved in stone. Government involvement in and regulation of certain conduct generally may, under certain circumstances, be permissible even if it impinges on religious activity.
Trying to understand what the Supreme Court is thinking about the First Amendment’s religion clauses is always problematical. In brief, in its recent history, the Court has approached the Free Exercise Clause in two primary ways.
For some time prior to 1990, the main question for the Court was whether the government had a compelling interest which justified interference with particular religious conduct and, if so, had chosen a narrowly tailored way to do so. In 1990, this question was replaced with a different, less accommodating test. In Employment Division v. Smith, 494 U.S. 872 (1990), the Court approved a seemingly neutral law of general applicability which adversely impacted a religious activity, but one which was not intertwined with another Constitutional protection.
All but two of the members of the 1990 Court (Scalia and Kennedy) have since been replaced. And many think the San Francisco ban, if passed, cannot survive a judicial challenge. The truth is that no one knows.
If Smith is followed, the Court will look to see if the impacted religious practice is associated with another protection. For instance, in numerous cases, although primarily related to education, courts have ruled that parents have the right to raise their children as they see fit. The Court may or may not choose to conclude that the interests of Jewish and Muslim parents in educating their children in the tradition of their ancestors fall, if not neatly, at least comfortably within the precedents set by the courts on matters of parental control.
Should the Court revert to its compelling interest standard, and putting aside for the moment whether the “compelling interest “ test is greater, less or the same for a referendum as it is in the normal legislative process, any approved ban should lose because the banners have not demonstrated any compelling state interest here.
For those who look to “original intent” as a method of constitutional construction, we have no information about our American forefathers’ foreskins. But we can safely assume that Jews practiced circumcision from the earliest days of settlement in the colonies. The Republic has stood strong for 235 years so far. Continuing to allow this religious tradition will not bring the country down now.
Needless to say, the MGMbill website does not address the constitutional rights of the families in whose lives it seeks to meddle.
So what is going on here? If there are no compelling medical reasons to ban circumcisions and no legal precedent for doing so, as someone once asked Alfie, “What’s it all about?”
One clue is a comic book series published by Matthew Hess, the president of MGMbill. The comic books are not funny. In fact, they are quite vile. Titled “Foreskin Man” and available through the Publications section of the MGMbill website or directly at www.foreskinman.com, they depict Monster Mohel, complete with wide brimmed hat, prayer shawl and evil lurk, holding down a baby on a pool table. They claim that Monster is excited by cutting flesh. The hero in this series is, surprise, a blond hunk called Foreskin Man who comes to save the day. Hess, of course, denies the charge of anti-semitism and claims to be a human rights advocate.
Not all proponents of the ban support Hess’s outrageous caricatures. And there are, apparently, some Jews who are opponents of circumcision. See, www.jewsagainstcircumcision.org. In these heterodox and heteroprax times, the ban proponents are entitled to their views. But the would be banners, especially the Jewish ones, should be cognizant of the fire with which they are playing, as Hess publishes his inflammatory pieces.
Applying the Law of Unintended Consequences, perhaps something good will come out of this affair. Already numerous groups representing Muslims, evangelicals, Catholics and others have joined with Jewish organizations to speak out and make sure that the referendum will be defeated and defeated resoundingly. See, www.stopcircban.com . From their lips to whom it may concern.
For more on this topic, see, http://www.shmuley.com//articles/details/are_the_circumcision_opponents_anti-semitic_or_sexually_repressed/