On June 14, Congressman Brad Sherman (D – Ca.) announced that he planned to introduce the Religious and Parental Rights Defense Act of 2011 (press release here) although the text of the proposed bill has yet to be circulated. The bill is a response to the recent ballot proposal in San Francisco and similar proposals in other municipalities (e.g. San Diego) aimed at banning circumcision for those under the age of 18 (for more background, see NYTimes: Efforts to Ban Circumcision Gain Traction in California).
I’ve previously addressed why I think the proposed ban in San Francisco is likely unconstitutional both on the grounds that such a ban infringes on a “hybrid right” and because the cartoons published by Mathew Hess may constitute sufficient evidence of religious animus. However, such claims are far from uncontroversial and it is also possible that a court would deem such legislation constitutional as a permissible facially netural and generally applicable law (see Eugene Volokh’s post considering the difficulties of challenging the bans on First Amendment grounds). Put differently, even if we think some of the cartoons provide evidence of religious animus, they might not be sufficient to render the proposed bans of circumcision unconstitutional (see Michael Dorf’s post exploring this issue).
The Religious and Parental Rights Defense Act of 2011
Enter Congressman Sherman’s Religious and Parental Rights Defense Act of 2011. For those fighting against the circumcision bans, Sherman’s bill would have some decided advantages: (1) it would avoid the uncertainty of litigation and (2) would likely dissuade more municipalities from considering such bills by adding another layer of legal hurdles to overcome.
While the text of the bill is not available, Sherman has referenced the Religious Land Use and Institutionalized Persons Act (RLUIPA) as an instance of previous Congressional legislation passed “to protect the free exercise of religious rights from state and local intrusions.” I therefore consider whether Congress passing a bill analogous to RLUIPA – that is prohibiting the banning of circumcision unless so doing is narrowly tailored to advance a compelling government interest – would represent a constitutional exercise of Congressional power. As I argue below, I believe the answer is yes under Section 5 of the Fourteenth Amendment (I do not here explore whether federal legislation restricting circumcision bans would also be a constitutional exercise of Congress’s authority under the Commerce Clause and under the Spending Clause both of which were also used to justify Congressional authority to pass RLUIPA).
Why Congress Can Restrict the Ability of Municipalities to Ban Circumcision Pursuant Section 5 of the 14th Amendment:
Section 5 of the Fourteenth Amendment states “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” Congress has previously used Section 5 to support passing the Religious Freedom Restoration Act (RFRA); however, the Supreme Court, in City of Boerne v. Flores, held that Section 5 did not provide Congress with the authority to pass the RFRA.
The Supreme Court’s rationale here is important. According to the Supreme Court, Section 5 only empowered Congress to pass legislation that enforces Fourteenth Amendment rights (which include, via the Due Process Clause, First Amendment rights). By contrast, Congress cannot add to the substance of those rights. Applied to our current inquiry, if circumcision bans are not prohibited by the First Amendment, then Congress cannot prohibit them via legislation pursuant to Section 5.
However, the Supreme Court also noted that “Legislation which deters or remedies constitutional violations can fall within the sweep of Congress’ enforcement power even if in the process it prohibits conduct which is not itself unconstitutional and intrudes into ‘legislative spheres of autonomy previously reserved to the States.’” The Supreme Court then concluded that the RFRA still could not be justified under Congress’s Section 5 power because there failed to be “a congruence between the means used and the ends to be achieved. The appropriateness of remedial measures must be considered in light of the evil presented.” This was largely a result of the wide scope of the RFRA (making it appear that the RFRA was an attempt to modify substantive rights and not simply deter violation of predetermined First Amendment rights).
By contrast, legislation aimed only at circumcision bans would appear to satisfy this requirement. Such federal legislation would target only blanket bans on the circumcision of minors, including where the circumcision was religiously motivated. Indeed, as I noted in a previous post, the recent discovery of the “Foreskin Man” cartoons has heightened concern that some of the proposed circumcision bans are motivated by religious animus – a fact that would render such bans unconstitutional under current First Amendment doctrine. Passing federal legislation in light of growing concerns over the possibility that such bans are motivated by religious animus – even where proving the existence of religious animus would be difficult – would appear to flow from the very center of Congress’s Section 5 authority “to enforce, by appropriate legislation, the provisions of this article.” (It is also worth noting that for similar reason, courts have generally found that RLUIPA represents a constitutional exercise of Congress’s Section 5 authority although not without significant detractors).