To Cut or Not to Cut?: Addressing Proposals to Ban Circumcision under Both a Parental Rights Theory and Child-Centered Perspective in the Specific Context of Jewish and Muslim Infants
Behrns, Andrew E., The William and Mary Bill of Rights Journal
Recently, a popular cultural, societal, medical, and religious tradition has come under attack. First, scholars and, more recently, citizens of San Francisco have called for a ban on male circumcisions.1 For just over a decade now, scholars calling for an end to the practice of male circumcision have gained little traction outside academia. This was true until a recent ballot proposal in San Francisco, which essentially would have forbidden the practice by criminalizing it, with few exceptions.2 Most noticeably, the proposed ban, which was the first of its kind in the country, would not have allowed for religious exemptions.3 Unsurprisingly, amid the outcry from religious groups, the California state legislature and Governor Jerry Brown quashed the ballot proposal.4 San Francisco's attempted ballot proposal, however, may just be the first political rumblings of a larger battle yet to ensue over male circumcision.5
Arguably, the most controversial aspect of the San Francisco proposal is the absence of a religious exemption.6 This controversy stems from the fact that male circumcision is deeply embedded in religion, specifically Jewish and Islamic practices.7 Consequently, Jewish organizations have been among the loudest and most active opponents of the proposed ban - asserting both parental choice rights and religious freedoms.8 Historically, arguments advocating for parental control and religious freedom, when coupled together, have received strong protection from the U.S. Supreme Court.9
Proponents of banning male circumcision describe the procedure as torturous and argue that it should not be afforded First Amendment protection or be subject to parental rights claims.10 As an alternative ground for banning circumcision, some have argued that the practice violates the Equal Protection Clause of the Fourteenth Amendment.11
In response to this debate, this Note analyzes infant male circumcision from two distinct perspectives: a parental rights theory and a child-centered best-interests approach.
Before addressing these approaches, Part I provides background material on the historical and religious origins of male circumcision. Part II then examines the constitutional claims likely to be brought under a parental rights theory - parental and free exercise claims. Part II also considers whether these rights can be conjoined to form a hybrid-rights claim requiring the application of strict scrutiny. In finding that they do form a hybrid-rights claim, Part II lays out what strict scrutiny means in the context of circumcision. Part III examines the issues implicated by a child-centered approach. First, it addresses threshold issues and finds that the applicable approach is a best-interests inquiry. Then, Part ?? lays out how best-interests analysis operates and what are the key considerations in its application. Next, Part IV applies each approach. Part IV concludes that under a parental rights analysis, bans on circumcision do not satisfy strict scrutiny, because the health risks associated with circumcision are minimal. Finally, Part V argues that due to the medical and emotional benefits associated with circumcision for Jewish and Muslim infants, the procedure is in their best interests.
I. BACKGROUND: HISTORICAL AND RELIGIOUS ORIGINS OF CIRCUMCISION
Many associate the beginning of male circumcision with either Judaism or, for non- Jewish men in the United States, with the anti-masturbation movement in the late 1800s.12 The origins of male circumcision, however, can be traced as far back as ancient Egypt.13 For the Egyptians, the practice of circumcision was a combining of the medical and the mystic in a process of refinement.14 As a result, circumcision became identified with prominence and was the aspiration of many.15
With its origins in Egypt, circumcision soon became one of the defining acts of the monotheistic Jewish culture.16 The oldest reference to the actual practice of circumcision in the Jewish Torah is from a story about Moses and his wife, Zipporah17:
At a lodging place on the way the Lord met him [Moses] and sought to put him to death. …