Over at the Daily Beast, Adam Winkler has a nice column slicing and dicing, as it were, the prospects of the prospective San Francisco ban of involuntary circumcisions, should the city pass the ban and should the constitutionality of the ban end up before the U.S. Supreme Court.
Strikingly, the proposed ban contains no exceptions to its not before age 18 rule, not even for religious reasons. It would be “unlawful to circumcise, excise, cut, or mutilate the whole or any part of the foreskin, testicles, or penis of another person who has not attained the age of 18.”
It might seem like a no-brainer to say that this ban would conflict with the free exercise of religion guaranteed under the Constitution, except that back in 1990 Scalia wrote a decision for the Court saying that the free exercise of religion clause does not permit a person to engage in behavior that has been declared a crime by the state. In the case, not so hallucinogenically titled Employment Division, Department of Human Resources of Oregon v. Smith, one Alfred Smith claimed that he had the right to consume peyote unimpeded by the law because peyote consumption was part of his religion, a claim that Scalia found unpersuasive.
Frankly, I doubt the Scalia will find Smith controlling. A lawyer who can’t find a distinction between peyote buttons and foreskins isn’t much of a lawyer. But regardless of the outcome, I don’t see Scalia visiting San Francisco, surely not his favorite city, his well-documented fondness for show tunes to the contrary notwithstanding, or anywhere else in California, surely not his favorite state, not after the recent U.S. Supreme Court decision, Brown v. Plata, requiring that state to release thousands of prisoners over the next two years to relieve the gross overcrowding of that state’s prisons.
Scalia’s anguished dissent, couched in what can only be described as sphincter tightening (or was it sphincter loosening?) prose, ends with the following apocalyptic vision: “"The vast majority of inmates most generously rewarded by the release order … will not be prisoners with medical conditions or severe mental illness; and many will undoubtedly be fine physical specimens who have developed intimidating muscles pumping iron in the prison gym.“
So, Nino, if you do go to San Francisco, don’t wear some flowers in your hair; don’t wear the robe; and, above all, don’t bend over to pick up the soap. Because if you do, well, circumcised or uncircumcised, it ain’t going to make much of a difference.
