Putting Circumcision on the Ballot
By now, most major media outlets have mentioned that some California municipalities will have proposed bans on male circumcision appearing on their November ballots. The measures have gotten play on the legal blogs as well, where most of the focus is on whether they could survive a First Amendment challenge. (The bans would prohibit circumcisions except for those with a “clear, compelling, and immediate medical need with no less-destructive alternative treatment available.” They further state that in enforcing the measures “no account shall be taken of the effect on the person on whom the operation is to be performed of any belief on the part of that or any other person that the operation is required as a matter of custom or ritual.”) Just last week, Dave wrote on this blog about how male circumcision reflects value-laden judgments. What most interests me about the proposed bans is the extent to which they provide an example of the dangers of allowing passion to trump pragmatism.
Let’s start with the First Amendment issue that has attracted so much attention on the legal blogs. Why not altogether avoid the legal issue and allow an exception for religious circumcisions? I think the primary sponsors of the ballot measures would answer that male circumcision is mutilation and torture. You don’t partially ban mutilation and torture; instead, you entirely prohibit it. Without a religious exception, however, the sponsors have (1) lost the votes of those who may prefer that people not circumcise but stop short of the words “mutilation” and “torture” and further believe that religion is a private matter; and (2) ensured that even if the ban is adopted, it will be tied up for years in litigation.
The mistake the sponsors made was to assume that a ban without a religious exception would be ineffectual in reducing the number of religious circumcisions. As I’ve blogged and written about before, the male circumcision rate is declining because of incremental changes that chip away at the pro-circumcision norm. Assume for a moment that a series of municipal bans with religious exceptions became law, caused a meaningful drop in the number of circumcisions and sparked reductions in other parts of the country as well, so that eventually no boys were circumcised unless during a religious ceremony. My bet is that these secular bans would eventually result in fewer and fewer religious circumcisions.
Many people who consider themselves to be “good” (fill in the blank with any religion you like) deviate from their Church’s teachings, even fundamental ones, in at least some respects. If male circumcision was decidedly not the norm—because people believed that cutting off part of the penis was cruel or unnecessary or whatever—religious parents might be influenced by the attitudes of their non-religious neighbors and choose not to circumcise their sons. There is already some evidence, for example, that the non-circumcision movement is beginning to make inroads in the Jewish faith. Already a small number of Jewish parents are opting for a brit Shalom, an alternative to the traditional bris that does not involve any cutting.
Under this slow and steady approach, with the passage of enough time a government could even adopt a ban with no religious exception without fear of a First Amendment challenge. Instead, the ban would be received much like the current federal law that prohibits all female circumcision, including ritual nicks that are much less altering than male circumcision. This legislation does not spark any chatter of First Amendment challenges because everyone agrees about the compelling nature of the governmental interest.
Of course, the First Amendment issues are only relevant if the proposed bans are actually adopted by the relevant voters. Indeed, if the measures were voted into law, there would be lots of interesting questions, such as whether people would just circumvent them by getting circumcisions done elsewhere, and whether officials would enforce the bans. I haven’t, however, seen a single prediction that the proposed bans will be voted into law.
With the risk of failure so high, one has to ask about the potential consequences of failure. Will a parent who is on the fence about whether to circumcise perceive failure of a measure as evidence that circumcision is an appropriate and socially-endorsed choice? What about the American Academy of Pediatrics (AAP), which is expected to release a new policy statement on male circumcision? Will a resounding defeat of the proposed ban weaken the hand of people within the AAP who argue that it should at least remain neutral about the procedure? These are all very real risks that threaten to undermine or reverse the gains that the non-circumcision movement has made. Passion has its place, but in this instance it threatens to undermine some very hard-earned gains.