Free Exercise of Religion Under The Knife in San Francisco

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Jul 7, 2011 2 Comments ›› Site Administrator Jewish Bris (circumcision ceremony)

Free Exercise of Religion Under The Knife in San Francisco

Guest post from Foundation for Moral Law intern Jimmy Rich (http://www NULL.facebook, a Covenant College (http://www NULL.covenant alum currently in his second year at Jones School of Law (http://www NULL.faulkner NULL.asp), who plans to work in Constitutional Law.

In 1791, our Constitution (http://www NULL.usconstitution NULL.html) was amended to guarantee that Congress would never pass a law which stifled our liberty to worship God according to the dictates of our consciences. The guarantee of the First Amendment stated that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . .” The words in the text mean exactly what they say. They are not written in a foreign language which must be interpreted with contrived tests. Congress has no right to tell members of a religion what they can or cannot do. The Supreme Court in the case of Gitlow v. New York (1925) (http://caselaw NULL.lp NULL.findlaw has since ruled that the word “Congress” is applicable on the state level to any local government.

On November 8th, residents of San Francisco will be voting on whether or not to ban the practice of circumcision of minors within the city. Violators of the ban could be sentenced to 1 year in jail and fined $1000. This should already send off warning signals in your head that something is amiss. If “Congress” is not allowed to make laws like this, as plainly stated in the free exercise clause of the First Amendment, then what is going on here?

What is happening is that the words of the Constitution have given way to various interpretations or mood swings of the Justices of the Supreme Court. In the case of Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah (1993) (http://caselaw NULL.lp NULL.findlaw, the Court put into play one such test. In City of Hialeah, members of a religion which employed animal sacrifice as a religious exercise planned on locating to the city of Hialeah. The city passed ordinances which illegalized the “unnecessary killing of an animal . . . not for the primary purpose of food consumption.” The Supreme Court held in favor of the Church. The Court reasoned that laws are not in violation of the free exercise clause when they are 1) neutral (“a law lacks facial neutrality if it refers to a religious practice without a secular meaning discernable from the language or context”), 2) of general applicability and 3) the government interest justifies the targeting of a particular religious activity.

Applying the test set forth in Hialeah, it is possible that a court may view the San Francisco circumcision ban as constitutional. It could be argued that the ban is neutral as it does not target the practices of any religious organization, but rather circumcision itself. Furthermore, it is generally applicable: no one could be circumcised in San Francisco. Proponents would likely argue that the third prong of the Hialeah test is moot, because the proposed law does not target religious circumcision, despite the fact that the writer of the ban stated that the bill is targeting “anti-Jewish circumcision.” (http://www NULL.washingtontimes Using this test, it is conceivable that a court could view the ban as being free of any violation of the free exercise clause.

This is in complete contrast to the beliefs of the founding fathers and the text of the First Amendment itself.

To me, the test set forth in the Hialeah case seems A LOT more complicated than the text of the amendment itself. If judges devise tests which produce an entirely different outcome than if the text itself were applied, then the Constitution, as well as our very freedom is undermined. Circumcision is a practice used by not only Judaism, but Christianity and Islam as well. This proposed ban would prohibit the free exercise of all three of those religions by restricting them from performing the act of circumcision.

Using these contrived tests can create big problems for all of us who treasure our religious freedom. Of particular interest should be the third prong of the Hialeah test, which requires that the government interest justifies the targeting of a particular religious activity. Using such tests, a court could rule that it is illegal for children to pray in school, or that home school families must teach evolution to their children. Furthermore, a court could determine that it is a compelling government interest that children be “socialized” in a public school setting and outlaw home schooling altogether. If courts would apply the words of the actual First Amendment text, then the circumcision ban would be unanimously declared unconstitutional.

This is a reflection on the secular view of law developing in this country: one of man-centered law. The concept that the law is given to us from on high is considered obsolete. The founding fathers held firm to the belief (http://www NULL.christianparents NULL.htm) that law must be crafted and built on the rock of the wisdom from God. Today, a humanistic form of law has taken root, one in which the constitution is a living document, changing in light of human experience. Those who remain true to the Constitution are accused of harboring a “fetish” for it (http://www NULL.slate

This blatant disregard for the authority of the Constitution is great cause for concern. Abraham Lincoln stated it best when he said,

“don’t interfere with anything in the Constitution. That must be maintained, for it is the only safeguard of our liberties.”

Judge-made tests, like the one in the Hialeah case, which come out with different results than the literal reading of the text, are nothing less than interferences with the Constitution. Courts sidestep the authority for the purpose of getting what they want.

If the ban on circumcision in San Francisco passes, it will certainly be challenged in the courts. If and when that happens, courts will have an influential decision to make: whether to uphold the free exercise of religion, or to open the floodgates for widespread religious persecution like never before in America.

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  1. Joseph says:

    This is an excellent post. I’m a christian, and strongly believe that our nation is secular, and that it will always remain so. The scripture says that my love of a shrimp cocktail is an abomination, and like most of my fellow christians, I’m going to keep on eating shrimp. A secular nation is more Godly than any alternative, because the pursuit of love, life, liberty, and property, is available to everyone – regardless of who you choose to worship. That’s a beautiful thing.

    Regarding the San Francisco law, there’s a citizen who is angry that his parents chose to circumsize him. He has been trying for years to get enough signatures on a petition, to place the question on the ballot, and this year he finally got the necessary number of signatures.

    Religious organizations, civil liberty groups, gay groups, Republicans, Democrats, and the San Francisco City Attorneys office, have all registered their opposition to the measure. There is a lawsuit pending, and many legal scholars feel that it will never make it on the ballot, as it will be declared unconstitutional. The measure has no popular support, and will never pass anyway, in my opinion.

    The best part of this referendum, is that this ban and campaign, brought religious leaders, politicians, civil rights groups, and the legal community, together to defeat the measure. That’s a beautiful thing and clearly the work of our lord and savior.

    May God bless you Jimmy Rich!

  2. oft (http://www NULL.ourfoundingtruth NULL.blogspot says:

    Where does the N.T. say a shrimp cocktail is an abomination?

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