Circumcision Ban Is Unconstitutional and Anti-Semitic, City Attorney Says

Now things are really becoming uncomfortable

​City Attorney Dennis Herrera has weighed in on San Francisco's proposed circumcision ban issue, saying that, among other things, it's patently unconstitutional and should be removed from the November ballot.

In a brief filed Thursday afternoon, Herrera says the ban would be unconstitutional the courts exempt medical professions from the ban's provisions. His argument builds on a lawsuit filed by the Jewish and Muslim communities on June 22, which asks the courts to remove the measure from the ballot.

It's rare for the city attorney to take a legal position on ballot measures. But Herrera felt he had to step in.

"While the City is not reaching a legal conclusion on the plaintiffs' argument about state preemption, it is abundantly clear that the measure will be unconstitutional if narrowly applied to religious practices," said Chief Deputy City Attorney Therese Stewart. "Especially in light of disturbing campaign materials that evoke the ugliest kind of anti-Semitic propaganda, the city has an obligation to petition the court to remove the measure from the ballot in its entirety if it is preempted as applied to medical professionals."

If passed by voters, the measure would criminalize circumcision performed on any male under the age of 18. The movement started last year when foreskin activists claimed that young boys should not suffer genital mutilation. The practice of circumcision is a 3,000-year-old ritual within the Jewish community.

"Boys are born with a foreskin for a reason," Matt Hess, who wrote the ballot language, told SF Weekly last month. "The foreskin functions like an eyelid, providing protection and keeping the penis moist and sensitive."

Jewish leaders have argued that banning the practice would be a violation of their freedom of religion. On top of that, they say circumcision is a health benefit, reducing the risk of HIV and increasing sexual pleasure in men. 

"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," Stewart said.

Hess told SF Weekly this morning that the ballot measure targets all forced male circumcisions and does not single out mohels or any one religion.

"The Supreme Court ruled long ago in Prince vs. Massachusetts that while parents are free to make martyrs of themselves, they are not free to make martyrs of their children," Hess says. "This clearly applies to forced genital cutting of children performed in the name of religion."

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