San Francisco is contemplating a legal ban on circumcision with no exceptions for religious freedom, which would make it illegal for Jews to circumcise their children before adulthood.
Some people have justified the ban by referring to this kind of circumcision as "mutiliation."This does a disservice to the word "mutilation." The use of the word in this context evokes an implicit comparison between the ritual removal of the foreskin and the kind of female genital cutting that often involves completely excising women's external genitalia. Actual genital mutilation throughout the world causes prolonged pain and often difficulty with giving birth, sexual intercourse, and even simply going to the bathroom. The two rituals are very different, not just in a physical sense but given the level of permanent, unalterable control the latter seeks over women's sexuality. The only possible parallel here is that children can't consent, but you might as well compare being made to eat your broccoli or being sent to your room with being forced to consume rat poison. Male circumcision performed by Jews is more comparable to families who have their daughters' ears pierced shortly after birth.
The ban would seem to run afoul of the First Amendment, by infringing on the free exercise of religion. But as Adam Winkler writes, previous Supreme Court decisions suggest that the bill could pass constitutional muster based on precedent:
In recent years, however, the Supreme Court has seriously eroded the constitutional protections for religion. Although it's usually the liberal Warren Court that's blamed for pushing religion out of public life, it was none other than conservative darling Antonin Scalia who wrote a landmark opinion that effectively gutted the free exercise clause. In a case involving a person who used peyote, a controlled substance, as part of a Native American religious ritual, the Supreme Court held that people have to obey laws that apply generally to all citizens. So long as a law is not designed to target only religious adherents, it is constitutional.
Scalia's opinion was joined by fellow conservative Reagan appointees Anthony Kennedy and Chief Justice William Rehnquist. It was three of the court’s most liberal members at the time who dissented, arguing for greater protection for religious practices.
This seems like a pretty straighforward application of the conservative justices' Hippie-Punching rule when beliefs about individual freedom come into conflict with their affinity for drug prohibition. It's also the kind of unintended consequence conservatives should keep in mind as they move to curtail rights of Muslims to enter into contracts in accordance with their religious beliefs just like Americans of other faiths.
I'm not naive enough though, to think that if the ban were challenged the court couldn't find a way around its previous decision in order to make an exception for Jews since unlike Muslims or Native Americans, conservatives actually care what Jews think. And it's not like there's any peyote or bud smoking involved.
