The city of San Francisco finally weighed in on a local ballot measure that asks voters to ban the circumcision of male children, saying its attorney claim the proposed law would be unconstitutional if applied to Jewish mohels.
The city attorney's office made the argument in response to a lawsuit by a coalition of Jews and Muslims that has asked a California court to remove the initiative from this year's November 8 ballot. The lawsuit, which names both the city and the anti-circumcision activist who qualified the measure, argues that state law bars local governments from restricting medical procedures.
If a judge accepts that reasoning and only excludes physicians from the ban, the measure would target only religious faiths that practice circumcision, thereby runing afoul of the First Amendment to the Constituion which guarantees religious freedom, lawyers for the city wrote.
"San Franciscans cannot be asked to vote on whether to prohibit religious minorities from engaging in a particular religious practice, when the same practice may be performed under nonreligious auspices," the city's brief said.
"If the court concludes that the measure is pre-empted as applied to medical professionals, then the remaining application is unconstitutional and the court should remove the measure from the ballot entirely," the city attornies concluded.
The suggested measure would prohibit circumcision of males under the age of 18, making it a misdemeanor punishable by a fine or jail time. It does not carry any religious exemptions.
In their brief, the city's attorneys noted it was unusual for them to take any position on a pending initiative and do so "only if a measure is clearly invalid," which they argue the circumcision ban would be if it is allowed to reach voters with an exemption for doctors.
As evidence that the proposed ban "specifically targets the centuries-old Jewish religious practice known as brit milah," the city's attorneys cited virulently anti-semitic comic books
and cards distributed by the measure's proponents that "portray the battle against circumcision as one between good, represented by a blonde, blue-eyed superhero and his fair-skinned female friend, and evil, represented by four dark-haired, dark-skinned menacing Jewish characters with prominent noses, sinister expressions and sadistic tendencies."
At the same time, the lawyers said they were not taking a stand on the larger question of whether the measure would survive legal scrutiny if left intact - meaning if it applied to doctors and mohels equally.
The judge has not issued a ruling on the matter.