June 22, 2011

The Jewish-led coalition working to defeat a San Francisco ballot measure, which would ban circumcision for boys 18 and under, filed a lawsuit there on Wednesday morning asking the city to remove the proposition from the ballot entirely.

The ballot measure, which would make circumcision for any reason—including religious belief—a misdemeanor, was formally approved for inclusion on the November 2011 ballot by the San Francisco Department of Elections last month.

The suit was filed in California Superior Court on June 22 by a group of plaintiffs that included two Jewish community organizations, three local Jewish families, one Muslim family and two doctors. It is just the latest salvo in a multifront battle to defeat a ballot measure that many in the Jewish community say would interfere with their religious practice and their autonomy as parents.

“It’s taking away our rights to decide privately all the things we want for our children, whether it’s medically or religiously,” plaintiff Jenny Benjamin said in an interview.

Benjamin, a resident of San Francisco and mother of two young children, and her husband, Jeremy, both of whom are Jewish, were recruited by the Committee for Parental Choice and Religious Freedom to stand as plaintiffs in today’s lawsuit. That coalition, which is being led by Abby Michelson Porth of the Bay Area’s Jewish Community Relations Council, also arranged a press conference on the steps of San Francisco’s City Hall at 11 a.m. on Wednesday to announce the filing.

The lawsuit cites a state law that denies California cities the power to “prohibit a healing arts professional licensed within the state … from engaging in any act or performing any procedure that falls within the professionally recognized scope of practice of that licensee.”

That law, together with a 1991 appellate court decision that affirmed a city’s right to deny initiatives a place on the ballot if the resulting laws cannot be enacted, forms the basis for plaintiffs’ lawsuit.

Michael Jacobs, a partner at the law firm Morrison and Foerster, is leading the case. “The law is clear,” Jacobs said in a statement released by the coalition. “It is misleading to San Francisco’s electorate to put an initiative on the ballot where they lack the power to enact it.

“By prevailing in this lawsuit,” Jacobs continued, “we will protect doctors against being charged with a misdemeanor for carrying out a routine and beneficial medical procedure. We will also protect parents’ choice to make medical decisions for their children. And we will protect faith communities against efforts to restrict religious freedom.”

Jacobs, the other plaintiffs and many opponents of the ballot measure speak frequently about the ways a citywide ban on circumcision would infringe upon religious freedom, but the legal precedent cited by Wednesday’s lawsuit comes from a section of the California Business and Professions Code having nothing to do with religion. Subsection 460 (b) was enacted by a 2009 law sponsored by the California Veterinary Medical Association (CVMA) to stop cities from banning the declawing of cats.

The Paw Project, a Santa Monica-based nonprofit educational organization, inspired the City of West Hollywood to ban feline declawing in 2003.

When other California cities began considering legislation similar to West Hollywood’s in 2009, the CVMA made its legislative push, culminating in the passage of a law that stops cities from interfering with the work of any “healing arts professional licensed within the state.”

That language is broad enough to include veterinarians and doctors, said Sarah R. Wolk, a partner at the Glendale-based law firm WLF Lawyers. For Jewish ritual circumcisers, known as mohelim, the situation is less clear.

“Circumcisions performed by doctors or those licensed and regulated by Division 2 of the Business and Professions Code could probably not be banned,” Wolk wrote in an e-mail. “But, a ‘healing arts professional’ would not include circumcisions performed by non-professionals or professionals licensed by other private governing bodies, and would therefore not prohibit restrictions on such individuals.”

This new legal move is only the latest action in the widening fight to defeat the San Francisco ban. Last week, Rep. Brad Sherman and California State Assemblyman Mike Gatto announced plans to introduce legislation in Washington, D.C., and Sacramento that would prohibit cities from banning male circumcision nationwide and in California, respectively.

The goal of all of these efforts is to have the ballot initiative thrown out before it ever reaches the citizens of San Francisco. But David Lehrer, president of Community Advocates, Inc., said it wasn’t clear that such maneuvers were the way to go.

“It’s not clear what the most effective strategy is,” he said. “Dealing with it through legislation could be counterproductive—more discussion and debate over what should be a nonissue. It’s probably a very close call, assuming the legislation is effective.”

As of press time, neither piece of legislation had been formally introduced.

More discussion and debate is exactly what anti-circumcision activist—or “intactivist”—Jews are hoping for. Ronald Goldman, the founder of the Boston-based Jewish Circumcision Resource Center and the author of “Questioning Circumcision: A Jewish Perspective,” said he was frustrated that the media’s coverage of the progress of the ban in San Francisco did not say more about the medical claims in favor and against circumcision.

“The issue becomes should we have a law, or what should be done to stop a law,” Goldman said. “Where’s the discussion of the harm circumcision causes?”

Intactivists like Goldman contend that circumcision is “physically, sexually and psychologically harmful,” and they believe that Americans, Jews and the members of the American medical establishment are simply in denial about the damage circumcision can cause.

In the hopes of redirecting the conversation, Goldman and eight other Jewish intactivists from around the country released “A Message to Jewish Americans on Circumcision” on June 20.

Circumcision is widespread among Jews and is traditionally performed on the eighth day of a baby boy’s life; Goldman and his cosigners say that “a growing number of Jews in the U.S., South America, Europe, and Israel are making the decision not to circumcise their infants,” the statement read.

The statement also included a remark indirectly disavowing “Foreskin Man,” the comic book created one of the backers of San Francisco’s ballot initiative, Matthew Hess, which was roundly critiqued as anti-Semitic.

“Unfortunately, there may be statements and tactics by individuals opposed to circumcision that are insensitive and even offensive to many Jews,” the statement read. “We regret this and absolutely reject all statements or actions, often based on ignorance, that are disrespectful of any religion or ethnic group.”

When asked, Goldman said that remark was not just a rejection of “Foreskin Man,” but also of the entire effort to ban circumcision in San Francisco.

“The statement is intended to refer to any and everything that is insensitive or offensive to the Jewish community,” Goldman said.

Members of the coalition fighting against the San Francisco ballot measure regularly dispute intactivist claims that circumcision causes harm. Indeed, they attribute numerous health benefits to the practice.

“Circumcision is a medically safe practice,” plaintiff Brian McBeth, a doctor in the department of emergency medicine at San Francisco General Hospital, said in the statement released today. Circumcision is, McBeth continued, “endorsed by the World Health Organization and other major medical and public health institutions because of the scientifically proven health benefits, including the reduction of transmission of HIV, penile cancer, and urinary tract infections, as well as cervical cancer in women whose partners are circumcised.”

Winning the fight over the medical benefits that some attribute to circumcision will be vital to the success of the coalition’s lawsuit, in part because legal experts doubt the ballot measure could be challenged under the First Amendment, which protects the free exercise of religion.

“I think it’s an outrageous infringement on religious freedom, but I think it would be very hard to challenge under the First Amendment,” said Erwin Chemerinksy, founding dean of the University of California, Irvine School of Law.

This apparent paradox, Chemerinsky said, can be traced back to a 1990 Supreme Court decision, Employment Division v. Smith, which allowed states to restrict certain religious practices, provided that the laws they drafted were applicable to everyone and not motivated by the desire to interfere with religion.

Chemerinsky said the proposed ban on circumcision met both of those criteria.

“It would be hard to argue that the circumcision ban is motivated by the desire to interfere with religion,” Chemerinsky said. “That is clearly the effect, but it’s not its purpose. And it’s clearly of general applicability as well. It prohibits all parents—not just Jewish parents—from circumcising their sons.”