(CN) – Opponents of an initiative to criminalize male circumcision in San Francisco sued the city, arguing that the proposal is invalid under a state law that prohibits local authorities from restricting medical procedures.
A coalition of physicians, San Francisco voters, and Jewish and Muslim rights activists teamed up against the proposed ordinance, seeking to remove it from the city’s Nov. 8 ballot. The opponents include the Jewish Community Relations Council of San Francisco and the Anti-Defamation League.
“The initiative is invalid under California law, which denies California cities 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 licensee,'” they claim in San Francisco Superior Court (ellipses in complaint).
Supporters of the measure garnered 7,743 valid signatures and submitted it to the Department of Elections in October 2010 for the Nov. 8, 2011, ballot.
If it passes, the initiative would outlaw the circumcision of males under the age of 18, making it a misdemeanor to perform the procedure unless “necessary to the physical health of the person on whom it is performed because of a clear, compelling, and immediate medical need with no less-destructive alternative treatment available … performed by a person licensed in the place of its performance as a medical practitioner.”
Anyone who performs the procedure would face up to a year in jail and up to $1,000 in fines.
“The initiative also explicitly states that no exception will be made with respect to circumcisions performed on the basis that it ‘is required as a matter of custom or ritual,'” according to the complaint.
The plaintiffs claim the proposal infringes on religious and parental rights by banning a religious rite that is considered sacred in the Jewish and Muslim traditions.
Such an ordinance would also restrict medical procedures, which are a matter of statewide concern and not subject to local control, according to the complaint.
The California Business and Professions Code “prohibits local governments from restricting ‘healing arts professionals’ in performing medical procedures,” the complaint states. “Physicians and surgeons regularly perform circumcisions as part of their practice. Circumcision is a ‘procedure that falls within the professionally recognized scope of practice’ of ‘healing arts professionals.'”
The plaintiffs say that “to the extent the proposed ordinance is partially valid and directed to persons who are not ‘healing arts professionals’ licensed by California, such as mohels, the ordinance violates the Free Exercise Clause of the U.S. Constitution.”
They add that “the presence of an invalid measure on the ballot steals attention, time and money from the numerous valid propositions on the same ballot. It will confuse some voters and frustrate others, and an ultimate decision that the measure is invalid, coming after the voters have voted in favor of the measure, tends to denigrate the legitimate use of the initiative procedure.”
The plaintiffs seek to enjoin the city from putting the ordinance up for vote. They are represented by Michael Jacobs with Morrison & Foerster.