by Election officials recently confirmed that a proposal to ban circumcision of male children will appear on the November ballot (check out ABC News story here and Wall Street Journal Story here). The measure, if passed, would obviously have significant impact on the Jewish practice of performing a bris milah – ritual circumcision – on 8-day old male children (and Muslim circumcision practice as well).
There has been a lot of discussion as to the wisdom of the bill (check out here and here) and more discussion as to whether or not such a measure is constitutional. Much of the constitutional discussion has focused on the limited Free Exercise protections afforded under our current Employment Division v. Smith regime (e.g. Slate Magazine, Prawfsblawg).
However, it seems to me that a circumcision ban is unconstitutional as a parental decision to circumcise a child for religious reasons would appear to be a “hybrid” right. As Justice Scalia stated in Employment Division’s majority opinion: “The only decisions in which we have held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action have involved not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections, such as freedom of speech and of the press . . . or the right of parents . . . to direct the education of their children.” According to Justice Scalia, the Free Exercise claim advanced in Employment Division failed because it did “not present such a hybrid situation, but a free exercise claim unconnected with any communicative activity or parental right.”
It seems likely that parents seeking to circumcise their children as part of a religious practice are engaging in conduct implicating both their Free Exercise rights under the First Amendment and their parental rights under the Fourteenth Amendment. In fact, this precise situation was contemplated in passing by Judge Kleinfeld in a dissent he filed back in 2000:
Suppose, hypothetically, that a legislature passed a facially neutral law prohibiting circumcision, and that its reason was not anti-religious animus, but concern that the possible pain inflicted on the child exceeded the medical benefits from the procedure. Such a law would make it impossible for Jews and Moslems to practice one of their most sacred religious obligations. I suspect that under Smith, the no-circumcision law would be unconstitutional, by analogy to the no-parochial-schools law in Pierce v. Society of Sisters, because the no-circumcision law would abridge both the right to rear one’s children in one’s religion and the free exercise of one’s religion.
Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1150 (9th Cir. 2000) (Kleinfeld, J. dissenting). Kleinfeld actually used this as an example of a “hybrid” rights case that would be relatively easy to decide. We may very well soon find out if he was right.
Does Michael (or anyone else) think that the circumcision ban is constitutional as applied to non-religious parents (those with health reasons alone)? If it is not, then religion (and the theory of hybrid rights) is doing no work here (just like it was doing no work in Pierce — it did not matter that the parents wanted a religious, rather than secular, private school for their children).
Chip,
As best I understand it (which probably isn’t very well), the value of the hybrid rights claim flows from what I presume would be some uncertainty as to whether or not their is a clear 14th Amendment parental rights claim implicated in the circumcision ban. Under the 9th Circuit’s test, “to assert a hybrid-rights claim, a free exercise plaintiff must make out a `colorable claim’ that a companion right has been violated — that is, a `fair probability’ or a `likelihood,’ but not a certitude, of success on the merits.” See Miller v. Reed, 176 F. 3d 1202 (1999).
I have to imagine there will be some debate as to the scope of the parental rights claim, so having the option to raise a hybrid claim will presumably make finding the ban unconstitutional more likely.
Michael and Chip, great exchange. Here’s my response, which I posted over at Mirror of Justice, with a question for you guys:
“Chip’s question is, as always, right to the point. But I wonder whether the category that Chip means to identify is not parents with “health reasons” for circumcision. That group might well qualify for the exception in the legislation itself for “physical health,” though probably one would need to see what was intended by that carve-out. The category I think Chip is talking about is parents who have non-religious, non-health-related reasons for circumcising their child — reasons based on tradition or custom, or the simple fact that the father is circumcised. Eugene notes over at Volokh, in a companion post on parental rights, that he is not aware of a parental rights case in which reasons of custom or tradition were adequate to ground a constitutional right.
But setting that aside, I have a question for you (and Chip, and others who want to discuss the *legal* — and not the policy — implications of this proposed law). Assume that a court would follow the “colorable claim” approach to hybrid rights, meaning that the FEC claim would be doing some independent work. And assume also that the companion claim was a parental rights claim. The parental rights claims which I know about which have grounded a hybrid rights claim have involved the right to direct the *education* of one’s child (Yoder, Pierce, and Meyer, all retroactively, and I am familiar with court of appeals cases doing the hybrid dance with educational claims). I am not familiar with cases applying a hybrid rights analysis where the parental right asserted was a general right to direct “upbringing” — to include the intergenerational transmission of cultural traditions or customs. I am not even familiar with a hybrid rights case involving the parental right to direct medical care (it must be a case applying the hybrid rights approach, and not simply the parental right to direct medical care alone). So my question is: assuming the colorable claim view, when the hybrid right consists of an FEC claim and a parental right, and the parental right does not involve the direction of education, has any court held that hybrid rights analysis applies?
One more thought — I see that the “physical health” exception must be based on a “clear, compelling, and immediate medical need with no less-destructive alternative treatment available.” I am not certain how the possibility/probability that circumcision would reduce incidence of future disease would be treated under this exception but it looks like it might not qualify. So perhaps Chip is talking about this category of parental right based on “physical health” of the child, to be distinguished from a parental right based on custom or tradition (or some more general reason of hygiene or sanitation) alone.
I think one big issue is being missed in this discussion. I suspect that what is going on here is the same intent as in the Dover, Pennsylvania School District case regarding the teaching of “intelligent design.” The difference being it is from the exact other side. What I mean by this, is that the non-religious argument is merely a pretext. If I were litigating the case against this law I would attack the motives of the drafters. I suspect that their real intention is either anti-semetic or anti-religious.
Next it will be TONSILS
Is the Earth tilted on its axis?
@Mitchell – In Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, Justices Stevens and Kennedy said they were willing to look at the intent of the drafters to find animus, while Justices Scalia and Rehnquist said that intent is irrelevant. Everyone else was silent on the point. On its face the anti-circumcision law doesn’t demonstrate animus, and it is generally applicable. So it’s an open question whether intent would be looked at to overturn the law. Moreover, even Kennedy who looked at intent in Lukumi, might well distinguish the circumcision statute. The animus towards the Church of Lukumi is quite explicit in the legislative history of the ordinances.
@Michael – The Supreme Court hasn’t ever applied a hybrid analysis prospectively. It only brought up the notion in Smith so that it didn’t have to overturn precedent, such as Yoder. Moreover, Yoder itself could be justified without the FEC, as demonstrated by Pierce (decided before the FEC was incorporated against the states and ruling that mandatory public schools were unconstitutional because they violated parents’ rights to control their children’s education). In other words, the FEC really didn’t need to do any heavy lifting in Yoder and it’s not clear whether there exists a case where such a combination would factor in. As noted by Judge O’Scannlain in Thomas v. Anchorage Equal Rights Comm’n many courts of appeals would only allow a hybrid claim if the non-FEC claim alone had a colorable chance of deciding the case (and some would never allow a hybrid claim). Parents don’t even almost have a right to physically cut their kids, so without the religious angle the case seems like a slam-dunk that circumcision could be forbidden. As you note, Judge Kleinfeld disagrees, but I’m not sure he’s right.
However, I highly doubt this case will be the vector to test the FEC. It’s one thing to get enough votes to put something on the ballot and entirely another to get a majority. Remeber, the Bay Area had impeaching Bush on its ballot at one point. http://www.impeachbush.tv/impeach/state_ca.html/.
Actually, routine infant male circumcision is unconstitutional. Males are females are to have equal rights. Parents can not elect to cut ANY female genitals for religious or health reasons.
Your rights stop when another person’s begin!
According to US laws, it is illegal to cut any part of a girl’s genitals except under some very limited circumstances. The constitution provides for equal protection under the law, regardless of sex. How cannot it not already be illegal to cut off a baby boy’s foreskin. Is a baby boy not recognized as having the same protection as a baby girl? Note that the law specifies any cut, not just a specific cut. A girl cannot have as much as a pin prick to her genitals.
Removal of a baby boy’s foreskin does not sexually cripple him for life as does removal of a baby girls clitoris. There has been no evidence shown by any anti-circumcision affectionados that it adversely effects boys or men mentally or physically. It was begun as a religious practice for the inherent reason of cleanliness by numerous ancient peoples, including the Egyptians. In fact penises were often collected after a battle to prove the numbers of enemy killed. Circumcision is a matter of preference and should logically remain so. The Egyptian men were circumcised as a puberty rite, is it not better to do it for an infant? It was the Greeks who worshiped the human body who first objected. Fine, so if you don’t want to, don’t do it
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