By Eugene Volokh
I’ve heard some people argue that the proposed circumcision bans (one of which is now on the ballot in San Francisco) is motivated by hostility to Jews. I quite doubt it, for a reason I mentioned in an earlier post: As of 2005, about 56% of newborn American boys, and about 31% of American boys in the Western states, were circumcised. (In the Midwest, the fraction was nearly 75%.) Since Jews and Muslims — the two groups that generally circumcise for religious reasons — make up about 3% or so of the population, it seems that over 90% of all circumcisions are not religiously motivated. The fraction might be lower in San Francisco proper (I know of no statistics limited to that city), but I suspect that even in San Francisco, the great majority of circumcisions aren’t religiously motivated; only about 5% of San Francisco residents are Jewish.
Now it’s true that circumcision bans are likely to affect Jews more deeply than others, because Jewish parents are more likely to feel strongly about circumcising their children. But it would still be the odd anti-Semite who so wants to hurt Jews that he’s willing to try to in the process forcibly change the practices of over 50% of the population — overwhelmingly non-Jews — and thus to incur the political opposition of that big chunk of the population.
Of course, it’s likely that some critics of circumcision have come to disapprove of Judaism, to the extent that Judaism mandates such circumcision, just as they disapprove of non-religious beliefs that support circumcision. But that’s not anti-Semitism, just as (say) disapproval of conservative Islamic restrictions on women isn’t bigotry against Islam: It’s opposition to behavior with tangible secular consequences, whether the behavior is religiously or secularly motivated.
Relatedly, some other people argue that Jews aren’t going to comply with the law and seem to imply that the law will therefore be futile. I agree that if any circumcisions bans remain just city ordinances (rather than prompting similar state or federal laws), many Jews will just go out of town to conduct the circumcisions; and even if the laws lead to more comprehensive bans, the really devout will avoid them (at the extreme, by leaving the country).
But my sense is that the anti-circumcision activists would feel that succeeding in stopping 97% of all circumcisions is quite a big win. If you really think that circumcising infant boys is a serious wrong against them — to the point that you’d invest time and effort into backing this proposal, with all its potential legal and political difficulties — wouldn’t you think that even a merely 97% complete victory (or perhaps even a considerably lesser victory) is pretty good? To be sure, the anti-circumcision activists wouldn’t want any religious exemptions, just as people who are trying to stop other things that they see as harmful generally don’t want any religious exemptions. But my guess is that if the ordinances are enacted and then upheld against a parental rights challenge, the backers would think they’ve triumphed even if Jews and Muslims get religious exemptions in court, or leave the jurisdiction to get their children circumcised.
UPDATE: A commenter asks, “Would you agree that the refusal to put in a religious exemption into these laws is motivated by hostility to those religions which practice this? In fact, if you read the Santa Monica petition item, it goes further than merely not including a religious exemption but by explicitly clearly disclaiming one. I don’t see how that can be interpreted as anything other than hostility to circumcision as a religious practice. How is that different from hostility to the groups which perform the practice?”
As best I can tell, opponents of male circumcision believe that it’s a serious interference with the rights of boys, and the men they’ll become, and a serious harm to those boys and men. If that’s so, then there’s every reason for them to think that it’s just as much an interference with rights, and just as much of a harm, when the conduct is done for religious reasons. And therefore it makes perfect sense that, with no hostility to the religion as such, the backers would refuse to include a religious exemption. The refusal to give people a religious exemption from a ban on behavior that you think is harmful and rights-violating hardly shows a hostility to religion — it shows a hostility to the behavior, whether the behavior is religious or otherwise.
Consider a wide range of laws that ban behavior that you think is harmful. It might be female genital mutilation. It might be sex discrimination, race discrimination, religious discrimination, or sexual orientation discrimination. It might be trespass, murder, rape, or what have you. Now imagine someone asking for a religious exemption from those laws, for instance from the ban on female genital mutilation. (Assume that some group does indeed believe that female genital mutilation is a necessary religious ritual.) Would you refuse to put in a religious exemption into the law (if it’s up to you)? If so, does your refusal show that you are hostile to the group? Or does it simply show that you think the practice is wrong, regardless of whether its practitioners do it for religious or other reasons? (To be sure, you might well think that circumcision of boys is unlike these other practices, because you think that it’s not that harmful or rights-violating; but that’s a separate question from whether a person’s refusing to provide an exemption is evidence of religious hostility.)