Jacques Amiel, center, holds newborn Benjamin Abecassis after the baby's bris — a Jewish circumcision ritual — in San Francisco on May 15, 2011
In the 1960s and '70s, the San Francisco Bay Area was where the counterculture really started — the Free Speech Movement in Berkeley, the Summer of Love in Haight-Ashbury, gay rights in the Castro. Today, the Bay Area is challenging the larger culture in a new and controversial way: there will be a referendum on the ballot in November that would make it the first major city in the U.S. to outlaw circumcision.
The San Francisco debate over circumcision initially centered on the value of the procedure itself — opponents call it barbaric, supporters point to its long tradition and say it prevents disease. But increasingly the debate is becoming one about religion, in which critics accuse backers of the referendum of bigotry and insist a ban would violate the First Amendment's religious freedoms.
There is plenty of reason to oppose the ban on its own merits. There is no need for a law: if people do not believe in circumcision, they should not have it done to themselves or their children. And even if there were to be a circumcision ban, this one is poorly constructed because of the well-founded religious objections that are being raised.
The anticircumcision debate began in April when a group of self-proclaimed "intactivists" — people who believe strongly that infant boys have a right to keep their foreskins intact — submitted enough signatures to put a circumcision ban on the ballot. The intactivists have taken up the language of international human rights: they are fighting, they say, for "genital autonomy" and "male-genital-integrity rights." Framed this way, it seemed like an appropriately earnest next step for a city that last year banned any kind of Happy Meal that paired toy giveaways with fast food.
The intactivists argue that circumcision needlessly inflicts pain on newborns, and they compare it to female genital mutilation — which is, in fact, a far more serious procedure. (Female genital mutilation can produce severe harm, including infertility and an increased risk of newborn deaths.)
Supporters of circumcision argue that there is a long tradition behind it, both religious and nonreligious, and that the pain involved is fleeting. They also say circumcision has proven health benefits. Removal of the foreskin has been found to help prevent the spread of HIV and other infections. In clinical trials in Africa, the incidence of HIV infection was 60% lower in circumcised men. The World Health Organization has said circumcision is an important component in fighting HIV infection.
Still, the drafters of the San Francisco referendum could have avoided the religious issue — and kept the focus on the harms and benefits of circumcision — if they had included an exception for circumcisions done for religious reasons. Jews, whose religious traditions require male children to be circumcised eight days after birth, and Muslims, who also practice circumcision, are a small part of the city's population.
Instead, the referendum expressly states that the ban would apply equally to religious circumcisions. If it passes, Jewish parents in San Francisco who hold a traditional bris, or circumcision ritual, could be sentenced to a year in jail.
This strict policy certainly seems insensitive. Jews who circumcise their sons trace the tradition back thousands of years. It is a sign, they believe, of a covenant with God, and an affirmation that the Jewish people will survive. There are accounts of circumcisions performed in the direst of circumstances, including in concentration camps. The intactivists aren't swayed by such arguments and insist it's gone on long enough.
Claims of insensitivity, however, have recently turned into charges of outright anti-Semitism. One of the referendum's key supporters has written a comic book, Foreskin Man, that portrays a blond, Aryan-looking superhero doing battle with "Monster Mohel." (Mohels are people trained to perform ritual Jewish circumcisions.) The bearded, prayer-shawl-wearing mohel leers manically at defenseless infants. As one rabbi blogger put it, "Hey San Francisco, 1930's Germany Called — They Want Their Anti-Semitic Propaganda Back!"
Jews and Muslims are not the only religious groups opposing the ban. The National Association of Evangelicals, which represents 45,000 churches, declared last week that while their faith neither requires nor forbids circumcision, "Jews, Muslims and Christians all trace our spiritual heritage back to Abraham. Circumcision begins with Abraham. No American government should restrict this historic tradition."
If the referendum passes, it is unclear whether it would survive a constitutional challenge. The First Amendment protects people against laws that unduly interfere with their religious rituals. The question is, How would the courts see this particular interference? In 1972, the Supreme Court upheld the right of Amish parents to not send their children to school past the eighth grade. Yet more recently, it held that the "free exercise" clause does not protect Native Americans who want to engage in ritual use of peyote, an illegal drug. Under the logic of the peyote case, the ban could well survive. The ban could also be challenged under California's state constitution, which might contain broader religious protections than the U.S. Constitution.
On one level, the stakes in the San Francisco vote are small. If the referendum passes, parents can easily take their children out of the city to be circumcised. The danger, though, is that intactivism could spread — and that more localities, and eventually states, will enact bans.
On the other hand, the intactivist movement could come to a quick end. Last week, an activist who had been collecting signatures to put a similar referendum on the ballot in Santa Monica, Calif., announced that she was halting her effort because, she said, a cause that was not intended to be about religion had become a religious issue.
Cohen, a former TIME writer and a former member of the New York Times editorial board, is a lawyer who teaches at Yale Law School. Case Study, his legal column for TIME.com, appears every Monday.