In 1990 the Supreme Court upheld the firing of two Oregon drug counselors for using drugs outside of work. That sounds reasonable, but the decision, Employment Division v. Smith, was strongly criticized by people -- including me -- committed to religious liberty.
That’s because the employees had ingested peyote during a Native American religious ceremony. Justice Scalia’s opinion was so broad that it was inevitable that its impact wouldn’t be limited to marginal religions and their adherents.
I hate being right sometimes. In November, San Francisco voters will decide if circumcision will be legal in their city. If that sounds outrageous, that’s because it is.
Sponsors argue that circumcision “needlessly inflicts pain on newborns” and compare it to female genital mutilation. They claim they support “genital autonomy” and “male-genital-integrity rights.”
Again, if this sounds ridiculous to you, you should remember that this is San Francisco, the city that banned giving away toys with fast food and where you can’t even sell diet soda in some places. Thus, it shouldn’t come as a surprise that the sponsors were able to gather enough signatures to place the issue on the ballot.
Nor should it come as a surprise that arguments about the place of circumcision in Judaism and 3,000-plus years of tradition don’t sway proponents. Proponents don’t care that the Archbishop of San Francisco called the proposed measure “unconscionable” and the National Association of Evangelicals has come out against the measure. If anything, that probably encouraged them.
If you think that this is just San Francisco being, well, San Francisco, think again. Other cities are considering similar measures. If you think that a measure that effectively targets Jews would give pause to a city that prides itself on “tolerance,” think again. As one Rabbi-blogger put it “Hey San Francisco, 1930’s Germany Called, They Want Their Anti-Semitic Propaganda Back!”
And if you think that the measure must be unconstitutional, think again.
Scalia’s opinion makes it very difficult to challenge laws like this one. As long as the law applies to everyone, what Scalia called a “neutral law of general applicability,” then all government needs to demonstrate is a rational purpose.
In this case, while circumcision is associated with Judaism, the fact that an estimated 80 percent of American boys are circumcised arguably meets the “neutral law of general applicability” test. Likewise, preventing pain arguably is a rational purpose.
While Smith permits religious exemptions, it doesn’t require them, and the proposed ordinance specifically omits such an exemption.
Thus, the fate of religious freedom in San Francisco is up to the voters. Thanks to Smith, an irreligious majority has the power to impose its will on a devout minority. And it’s just a matter of time before a less-sympathetic minority, say, small “o” orthodox Christians, will find that they only enjoy the freedom that the majority is willing to extend them.
This stands the First Amendment on its head, which is why we tried to get Smith reversed both in Congress and in the courts. It’s also why we wrote the Manhattan Declaration, which you need to sign.