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Could Foreskin Man keep circumcision legal in San Francisco?

by Jonah Lowenfeld

July 1, 2011 | 5:00 pm

A section from "Foreskin Man" No.2. (Image courtesy Foreskinman.com)

In an ironic twist, the writer of a San Francisco ballot measure that would prohibit circumcision of any boy under 18 for any reason other than a medical emergency also created the evidence that could lead to the proposition being declared unconstitutional and being thrown off of the ballot.

Matthew Hess, the president of MGMBill.org, wrote the San Francisco measure, which qualified for the November 2011 ballot in May. He also created “Foreskin Man,” a comic whose second issue featured imagery that was widely criticized as anti-Semitic.

In a legal brief filed on June 30, the San Francisco City Attorney’s office argued that an existing California statute could prevent the city from prohibiting doctors from performing circumcisions. If a judge rules that the state law prevents the city from interfering with the work of medical practitioners, the ballot measure would then apply exclusively to Jewish ritual circumcisers known as mohelim, the city attorney argued. In a news release announcing the submission of the brief, the city attorney said a ballot measure specifically targeting a religious practice would be “patently unconstitutional.”

Furthermore, the city attorney argued, the ballot measure was motivated by anti-Jewish animus, as evidenced by the depiction of Monster Mohel, the villainous Jewish ritual circumciser featured in “Foreskin Man” No. 2.

“There’s some very targeted, I guess you could call it propaganda, and that portrays religious circumcision by Jews in a very demonizing way,” Chief Deputy City Attorney Therese Stewart said.

Courts have used evidence of discriminatory animus as evidence to strike down statutes as unconstitutional.

Lloyd Schofield, the official proponent of the San Francisco ballot measure and the
“real party in interest” named in the June 22 lawsuit, has repeatedly argued that his ballot measure should not be judged on the basis of Hess’s comic book, pointing out that his group’s website, sfmgmbill.org, does not mention “Foreskin Man.” Other anti-circumcision activists have distanced themselves from Hess as a result of his controversial comic as well.

The city attorney’s brief was issued in response to a June 22 lawsuit filed by Jewish and Muslim families, doctors, and Jewish community groups attempting to get the measure struck from the ballot. That lawsuit cited a California statute that prevents cities from interfering with the work of a state-licensed “healing arts professional.”

Although that lawsuit was founded on the assumption that the statute would completely preempt the ballot measure, the partial preemption foreseen by the city attorney’s office wasn’t entirely unexpected.

“We indeed anticipated this issue,” Michael Jacobs, a partner in the San Francisco office of Morrison and Foerster who represented the group of plaintiffs in the lawsuit, wrote in an email on Friday. “But we are very grateful for the City’s vigorous protection of our Free Exercise rights and its defense against anti-Semitism.”

How the proposed ballot measure is impacted by the state law will be determined in court. Originally set for July 15, the court date was reportedly being changed at press time, to allow those defending the ballot measure to prepare their arguments.

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