ACLU Urges Court to Invalidate SF Circumcision Initiative

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ACLU of Northern CA

San Francisco – The American Civil Liberties Union of Northern California (ACLU-NC) today urged San Francisco Superior Court to order the city's Director of Elections, John Arntz, to remove the proposed circumcision ban from the ballot now. In an amicus curiae brief filed today, the ACLU of Northern California argues that Article 50 is clearly invalid because California law explicitly prevents localities from criminalizing recognized medical procedures that offer clear health benefits.

"The proposed ban would violate state law and should be removed from the ballot now," said attorney Ethan Schulman, a partner at the firm Crowell & Moring and a member of the ACLU of Northern California's Legal Committee. "It also threatens to deprive San Franciscans of fundamental constitutional rights, and to embroil the electorate in unnecessary and deplorable religious divisiveness."

"The ACLU joins Jewish and Muslim families and the City in San Francisco in asking the court to remove this initiative from the ballot. We believe that this measure is no more valid than a local initiative to make contraception a crime," said ACLU of Northern California staff attorney Margaret Crosby.

Key points articulated in the brief:

  • The proposed ordinance clearly conflicts with California law (Business and Professions Code Section 460(b)), which unambiguously prohibits local governments from making recognized medical procedure a crime. Health care access cannot vary city by city.
  • The initiative violates the right of parents to direct their children's religious upbringing and medical care. Newborn male circumcision is a tenet of the Jewish and Islamic faiths. By criminalizing the circumcision of boys, the proposed ordinance would prevent parents from allowing their children to participate in an essential religious ritual, infringing upon the rights of parents to guide the religious upbringing of their children. The ban also interferes with the right of parents to direct the medical treatment of their newborns. This right exists even when the proposed treatment presents some risk, as virtually all medical procedures do.
  • The initiative threatens the right of mature teenage boys to make decisions about their bodies. The initiative also infringes on teenagers' rights to seek circumcision for religious, health or other reasons. By criminalizing the circumcision of boys under the age of 18, the proposed ordinance prohibits mature boys from choosing circumcision. This means that a devout teenager who wished to become circumcised could not do so legally, even if his parents consented to the procedure.
  • The initiative threatens religious freedom. The initiative not only tramples the liberty of Jewish and Muslim families to honor a religious duty, it embodies a disturbing hostility toward minority faiths.
  • The law – and precedent – support removing an invalid initiative from the ballot, particularly where the campaign fosters religious divisiveness. Conducting a popular vote on whether to criminalize a minority religious practice fosters sectarian strife. This concern is heightened by the specter of a local initiative in which the majority are being asked to trample the cultural and religious childrearing customs of minority communities. San Francisco will encourage divisiveness if it is forced to place this initiative, which is clearly invalid, on the November ballot.

"Our Constitution forbids the government from fostering divisiveness along sectarian lines. To sponsor an election on whether parents may choose circumcision for their newborns has already inflicted injury on minority faiths. Where, as here, the initiative is totally invalid, the court should prevent this deplorable and wholly unnecessary religious strife," added ACLU of Northern California managing attorney Jory Steele.

Download the legal document.

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