Jun 23, 2011

jweekly: "Lawsuit aims to axe circumcision bill from S.F. ballot"

Lawsuit aims to axe circumcision bill from S.F. ballot
Thursday, June 23, 2011 | by dan pine

If Jennifer and Jeremy Benjamin have their way, San Franciscans won't get a chance to vote on the proposed circumcision ban this fall.

The Jewish mom and dad, along with several other plaintiffs, filed a lawsuit in San Francisco Superior Court June 22 to remove the proposed ban from the

Nov. 8 ballot.

The suit, which was formally announced in a press conference on the steps of City Hall this week, claims that a city has no right to ban and criminalize legitimate medical procedures, such as circumcision, which are regulated by state law.

John Arntz, the San Francisco director of elections, and Lloyd Schofield, who is spearheading the municipal ballot measure to ban circumcision for males under the age of 18, were named in the suit.

Co-plaintiff Leticia Preza speaks June 22 on the steps of S.F. City Hall, flanked by (from left) co-counsel Nicole Aeschleman, attorney Michael Jacobs and mohel Dr. Brian McBeth. photo/jcrc/minh la
The Benjamins, San Francisco residents who have a son and a daughter, say they simply want the freedom to continue the tradition of brit milah, as practiced by Jews for thousands of years.

"Circumcision is really important to how we practice Judaism," Jennifer Benjamin said. "Our [5-year-old] son is circumcised, and if we had another [boy] it's something we would do again. The idea that they would ban it in the city was actually shocking."

The list of plaintiffs includes not only a handful of Jews and two big Jewish organizations, but also Leticia Preza, Kashif Abdullah and Sheila Bari — all practicing Muslims.

"Circumcision is required for Muslim males and we chose to circumcise because of our faith," Preza said in a press release. "This ban specifically targets a religious practice of Islam. San Francisco is a city that prides itself on diversity and pluralism. [The proposed ban] threatens San Francisco values and should be stopped."

The lawsuit's other plaintiffs are the S.F.-based Jewish Community Relations Council, the local chapter of the Anti-Defamation League and several local Jews, including Rabbi Jonathan Jaffe of San Francisco's Congregation Emanu-El and his wife, Yael Frenkel-Jaffe.

"We believe the voters don't actually have the ability to vote on this," said Abby Michelson Porth, JCRC associate director. "Their interests have been pre-empted by the state legislature, which has affirmatively legislated that it has the right to regulate physicians' practice, not municipalities."

According to a statement released by the JCRC's Committee for Parental Choice and Religious Freedom, the lawsuit cites a statute which denies municipalities the power to "prohibit a healing arts professional licensed with the state ... from engaging in any act or performing any procedure that falls within the professionally recognized scope of practice of that license."

"We think it's a very strong legal argument," said Michael Jacobs, a partner at the Morrison and Foester law firm, which is representing JCRC in the case pro bono. "[The opposition] is going to have a hard time developing persuasive counter-arguments. It's misleading to the electorate, which does not have the power to enact this initiative."

According to Jacobs, the courts usually expedite pre-election challenges such as this, and are more often supportive of them when the suits cite a statutory prohibition.

"This goes to a superior court judge," he added. "We could get a ruling as soon as the third week of July. [Ban proponents] might appeal, and then that would be  expedited, as well."

Though the suit stresses statutory arguments against the ballot measure, the plaintiffs say they have additional reasons for fighting it.

"This measure would put me and hundreds of other doctors in jail for performing a procedure with known health benefit and global health implications," Dr. Brian McBeth said in a press release. McBeth is a registered mohel in California who works in the department of emergency medicine at San Francisco General Hospital.

Proponents of the measure, in general, are relying on the genital mutilation argument. Matthew Hess of San Diego, who wrote the ballot language for the San Francisco measure, called it a "double standard" that cutting the genitals of girls is illegal but cutting the foreskin off boys is acceptable.

"We're not trying to stop people from getting circumcised if they want to," Hess was quoted as saying in the Santa Monica Daily Press. "We just want to protect children from getting it forced on them."

Since the measure qualified for the ballot a few months ago, opponents of the circumcision ban have expressed confidence that voters would reject it.

Still, the plaintiffs who filed the lawsuit are against letting the voters decide the matter.

"There are times you have to fight things that go against everything we stand for," Jeremy Benjamin said. "I'm sure it would be squashed at the polls, but we have to be proactive."

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Rabbi Menachem Creditor
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