Narrowing application to religious practices, disturbing campaign materials would clearly violate U.S. Constitution’s Free Exercise Clause
SAN FRANCISCO (June 30, 2011) — A proposed ballot measure to ban male circumcisions in San Francisco would be clearly unconstitutional and should be stricken from the ballot if a court were to hold that state law excludes medical professionals from the ban’s provisions, a City Attorney’s legal response brief argued today. The City’s pleading filed in San Francisco Superior Court this afternoon responds to a June 22 lawsuit to remove the measure from the November ballot. That lawsuit argues that the measure is preempted by a California statute that prohibits municipalities from regulating medical procedures performed by medical professionals. The plaintiffs — a coalition of Jews and Muslims opposed to the circumcision ban — also argued that the proposed measure could not be narrowed in its application without running afoul of the Free Exercise Clause of the U.S. Constitution’s First Amendment.
The City historically refrains from taking legal positions on the merits of pre-election challenges to duly qualified local ballot measures, except in rare circumstances where a proposed measure is patently unconstitutional on its face or in its application. “This is such a case,” San Francisco’s brief explains, given the likelihood that the law would be narrowly applied to religious practices, and 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” and evil Jewish henchman who 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.
“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,” 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. 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.”
Stewart is directing the City’s response to the litigation filed on behalf of Jewish and Muslim families to block the ballot measure. Circumcision of male children is a commonly observed practice of Judiasm, Islam and other Abrahamic religious traditions. On August 27, 2010, after becoming a candidate for Mayor, City Attorney Dennis Herrera adopted an office-wide ethics policy that exceeds legal requirements to avoid even the appearance of a political conflict for himself or his office for the duration of the current election cycle. As such, Herrera has screened himself off from personal participation in matters involving elections or campaign conduct.
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. Case documents as well as a copy of the City Attorney’s August 27, 2010 ethics policy are available on the City Attorney’s Web site at https://www.sfcityattorney.org.
PDF of the Circumcision Ban Challenge Presskit (June 30, 2011)