A proposed ballot measure to ban male circumcisions in San Francisco is facing a pre-election legal challeng to remove the measure from the November 2011 ballot.
Amicus briefs by the American Civil Liberties Union and the San Francisco Medical Society (linked below) have been filed backing the pre-election challenge by a coalition of Jewish and Muslim plaintiffs, which argues that the measure is preempted by a California statute that prohibits municipalities from regulating medical procedures performed by medical professionals, and that it could not be narrowed in its application without running afoul of the Free Exercise Clause of the U.S. Constitution's First Amendment.
A hearing on the merits of the challenge has been scheduled for the following time and location:
San Francisco Superior Court
400 McAllister Street, Department 302
Hearing Date: July 28, 2011
Hearing Judge: Hon. Loretta M. Giorgi
Time: 9:30 a.m.
While the City and County of San Francisco historically refrains from taking legal positions on the merits of challenges to duly qualified local ballot measures, this case presents a rare circumstance in which a proposal would be patently unconstitutional if narrowly applied to religious practices -- particularly against the backdrop of political advocacy that expressly demonizes the Jewish faith. Ballot measure proponents have issued a controversial campaign comic book and accompanying character cards that vilify a Jewish "Monster Mohel" who together with Jewish henchman are darkly evocative of Nazi propaganda of the 1930s and 1940s. Mohelim are not necessarily licensed medical professionals, but are nonetheless trained to perform male circumcisions in accordance with Jewish religious tradition. Courts have considered such invidious political messaging as evidence of discriminatory animus in striking down statutes as unconstitutional.
Said Chief Deputy City Attorney Therese Stewart: "While the City is not reaching a legal conclusion on the plaintiffs' argument about state pre-emption, it is abundantly clear that the measure will be unconstitutional if narrowly applied to religious practices. 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. 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 non-religious auspices."
The case is: Jewish Community Relations Council of San Francisco et al. vs. John Arntz, in his capacity as Director of Elections, San Francisco Superior Court, Case No. CPF-11-511370, filed June 22, 2011.
- PDF of the Jewish Community Relations Council et al.'s Petition for Writ of Mandate (June 22, 2011)
- PDF of the Jewish Community Relations Council et al.'s Motion of Points and Authorities (June 22, 2011)
- City Attorney's news release: "Circumcision ban unconstitutional if court exempts medical professionals, City argues; Narrowing application to religious practices, disturbing campaign materials would clearly violate U.S. Constitution's Free Exercise Clause (June 30, 2011)
- PDF of the City Attorney's circumcision ban response presskit, which includes news release, response brief and exhibits (June 30, 2011)
- PDF of CCSF's exhibit: "Foreskin Man: Monster Mohel" anti-Semitic campaign comic book, Vol. 1, No. 2 (June 30, 2011)
- PDF of Lloyd Schofield's MPA and brief in opposition to petition for writ of mandate (July 15, 2011)
- PDF of American Civil Liberties Union amicus brief in support of petition for writ of mandate (July 15, 2011)
- PDF of San Francisco Medical Society's amicus brief in support of petition for writ of mandate (July 15, 2011)