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ACLU Applauds Court Order Removing the Circumcision Ban From the San Francisco Ballot

Thursday, July 28th, 2011


The American Civil Liberties Union of Northern California (ACLU-NC) applauds the ruling by San Francisco Superior Court Judge Giorgi invalidating the proposed circumcision ban and removing it from the November ballot.


“The Court’s ruling protects the rights of parents to direct their children’s religious upbringing and medical care, and ensures that San Francisco voters will not have to vote on something that clearly conflicts with California law,” said attorney Ethan Schulman, member of the ACLU-NC’s legal committee and a partner at the firm Crowell & Moring.


“Conducting a popular vote on whether to criminalize a minority religious practice fosters sectarian strife.  This initiative would have undermined the right to religious liberty that we cherish in a pluralistic society,” said ACLU of Northern California managing attorney Jory Steele.


The Court held that the measure is clearly invalid because California law explicitly prevents localities from criminalizing recognized medical procedures that offer clear health benefits.


“It’s unusual for a judge to order an initiative off the ballot, but the proposed circumcision ban presented that rare case where the court should block an election on an initiative,” added ACLU-NC staff attorney Margaret Crosby.  ”Not only is the ban patently illegal,  it also threatened family privacy and religious freedom.  The court’s order protects fundamental constitutional values in San Francisco.”


The text of the tentative ruling, issued on July 27 and affirmed this morning is below:


Set for hearing on Thursday, July 28, 2011, line 8, PETITIONERS JEWISH COMMUNITY RELATIONS COUNCIL OF SAN FRANCISCO, THE PENINSULA, MARIN, SONOMA, ALAMEDA AND CONTRA COSTA COUNTIES, THE ANTI-DEFAMATION LEAGUE, JEREMY BENJAMIN, JENNY BENJAMIN, LEO FUCHS, JONATHAN JAFFE, YAEL FRENKEL-JAFFE, SHEILA BARI, LETICIA PREZA, KASHIF ABDULLAH, BRIAN MCBETH, ERIC TABAS, Motion To Grant Writ Of Mandate And Injunctive Relief. The Court finds that the proposed ballot Initiative is expressly preempted by California Business and Professions §460(b). The evidence presented is overwhelmingly persuasive that circumcision is a widely practiced medical procedure. California Business and Professions Code §460 (b) applies to medical services provided by a wide range of health care professionals. The statute speaks directly to the issue of local regulation of medical procedures and leaves no room for localities to regulate in this area. In fact, the legislative history of §460(b) confirms that the legislature intended to prevent cities and counties from regulating medical services which is a matter statewide concern. Because the proposed ballot initiative attempts to regulate a medical procedure, the proposed ordinance is expressly preempted. Moreover, it serves no legitimate purpose to allow a measure whose invalidity can be determined as a matter of law to remain on the ballot after such a ruling has been made. City of San Diego v. Dunkl, (2001) 86 Cal.App.4th 384, 389 Accordingly, the Court issues a Writ of Mandate Ordering the Director of Elections for the City and County of San Francisco to remove the measure from the ballot in its entirety. The applications to file a brief as amicus curiae, to file a brief in excess of the maximum number of pages, and for pro hac vice admission by the Doctors Opposing Circumcision are denied. These motions were filed two days before hearing and courtesy copies were not provided until the day before hearing, which is extremely untimely.




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