Is a Ban on Circumcision Even Constitutional?


eliyahu-finkBy Rabbi Eliyahu Fink 

First they came for people who sit and lie on sidewalks and I didn’t speak up because I don’t sit or sleep on sidewalks. Then they came for the Happy Meals and I did not speak up because I don’t eat happy meals.

Then they came for those who circumcise their sons and fortunately, there are plenty to speak up.

San Francisco is a favorite city of mine. I think I may have to reconsider.

The Happy Meal ban is dumb, but it doesn’t discriminate against a particular group. The circumcision ban would present a big problem for a lot of people. San Francisco “intactivists” are gathering the requisite signatures to place a circumcision ban on the ballot. If it gets on the ballot and gets enough votes, circumcision would be banned in San Francisco.

Judaism and Islam require male circumcision.

The proposed law raises some very interesting constitutional issues. It is very hard to prove discrimination against a religion. So long as there is another purpose for the law, besides discrimination, the law is likely to be upheld and not in violation of the “Free Exercise” Clause. If the proponents of the ban can show that there is a legal interest that is being protected by the law then it will likely be upheld.

The 14th Amendment protects a parent’s rights to make decisions for their child without interference from the government. The court has found that there is a Fundamental Right to “direct a child’s upbringing.” The issue here would be if there is a compelling government interest in banning circumcision. I don’t think the proposed law could withstand this challenge. If the court would not find that circumcision is part of “the upbringing of a child”, then the law would have a chance.

I can completely understand why someone who is not religious would not want to circumcise their son. I can even understand why they think it is wrong or inappropriate. However, for a person who is religious, their religion is their law and their life. The “intactivists” claim that religion is a choice and the baby cannot choose their religion when they are getting circumcised. I think that most children raised in a mildly religious environment with a basic appreciation for their traditions and practicing some of those traditions will be happy to continue in their tradition and would appreciate their parents’ role in helping them be a faithful member of that religion, even if it means circumcision.

The health benefits and detriments are neglible as science has shown. Circumcision is about religion and not about ancient medicine.

As an aside, my father is a mohel.

Meanwhile, the only thing this law would accomplish, even if passed, is that it would force Jews and Muslims who are compelled to circumcise their sons to either move out of San Francisco, or simply have the circumcision performed outside the city limits. Seems pretty silly to me…



  1. San Fransico is the center of “toieivah” in the USA. That’s a reason they don’t want Milah. It would help all of the Jewish people leave San Fransisco once in for all.

  2. people think that the ness of Hanukkah – when the greeks denied the religious rights from the Jews.. the 3 things that they prohibited was chodesh – torah – and of course mila/curcumsision.
    what you most likely don’t know or realize. is, that this is really not so. they did not prohibit mila. they did exactly what SF is trying to do. But they succeeded. They proclaims that it is abuse, and therefore punishable by death. Oh no, nothing against religion – it is prohibited for anyone to do it, not just the Jews.
    Am Yisroel – we are in big trouble. we can rely only al Avinu Shebashumayim
    Shchita in New Zealand – Mila in America..

  3. I know it is difficult and that it is easy for me to say this, but why not send a message. All jews especially frum, it’s time to move from San Francisco.

  4. This is anti-Semitic and probably anti-Islamic sentiment under the guise of “liberalism” but it’s also interesting that these self-declared “liberals” who support multiculturalism seem to be, through this misguided initiative, to be arguing against multiculturalism. Hence, the inevitable conflict between multiculturalism (which I support) and liberalism/secularism. Also, Rabbi Fink made an error when he said that Islam require circumcision. Islam only prefers it from what I’ve read.