Circumcision Bans, Religious Freedom, and State RFRAs
What follows is a guest blog post, written by my wife Sara Lunsford Kohen. Sara received her J.D. with highest honors from the University of Nebraska College of Law in 2011 and her B.A., summa cum laude, in political science and Spanish from James Madison University in 2007. She is the author of an article about the religious liberty provision of the Nebraska state constitution and is currently working on an article about the applicability of the Federal Religious Freedom Restoration Act to suits between private parties.
Much has been said recently about the proposed circumcision bans in San Francisco and Santa Monica. Both Judaism and Islam require circumcising boys, and so it is not surprising that many people are outraged by the proposed bans. What may surprise some, however, is how little legal protection this core religious requirement may get. This is surprising because Americans tend to cherish the idea of religious liberty, at least in the abstract. After all, many of the first European settlers arrived on our shores fleeing religious persecution. Later, the framers of the Constitution provided that Congress “shall make no law respecting the establishment of religion or prohibiting the free exercise thereof…” Scholars have advanced a variety of arguments for why we ought to protect religious freedom, but one of the most relevant here is that, for many, religious beliefs and practices are not mere preferences. Rather, they are central to how many people think and act. Thus, a person whose religious practice has been outlawed faces an impossible choice: to act in accordance with his or her beliefs and face criminal penalties, or violate these beliefs in order to conform his or her behavior to the law. Faced with this choice, unpopular religious groups have often been forced to leave their homes to avoid persecution.
The U.S. Supreme Court for many years recognized this problem and so required granting religious exemptions from laws that imposed substantial burdens on religious practice unless not granting the exemption was the least restrictive, effective means of furthering a compelling governmental interest. This test both recognized the importance of religious freedom and acknowledged that this freedom must sometimes give way to the public’s interest in enforcing the laws. However, the Supreme Court abandoned this test in 1990 in Employment Division, Department of Human Resources v. Smith, instead holding that the First Amendment’s Free Exercise Clause does not require granting exemptions from neutral, generally applicable laws—those that do not target religious conduct and cover non-religious conduct to the same extent as religious conduct. Although Congress, appalled by this holding, passed the Religious Freedom Restoration Act (the “federal RFRA”), which restores the compelling interest test for federal laws that burden religious exercise, Congress does not have the power to bind state governments in this way. Therefore, the Federal Free Exercise Clause provides little protection against state and local governmental action: few lawmakers would be so foolish as to pass a law that, on its face, discriminated against a particular religious group. Far more common—and dangerous—are laws such as the proposed circumcision bans that are facially neutral toward religion but that nonetheless severely burden individuals’ religious liberty.
This does not necessarily mean that the Jews and Muslims of San Francisco and Santa Monica would lose a challenge to the bans if they pass. The Supreme Court has looked past a law’s facial neutrality before, finding that an ordinance banning religious animal sacrifice targeted members of the Santeria religion, and therefore required applying the compelling interest test. In that case, the anti-Santeria intent was obvious, both because of the ordinance’s legislative history and from the fact that the law allowed virtually all other animal killings. Similarly, if the circumcision bans pass, the Court might be willing to look past their facial neutrality and find an intent to drive Jews and Muslims out of San Francisco and Santa Monica. This inference is supported by the “Foreskin Man” comic book, an anti-Semitic work created by Matthew Hess, who drafted the prototype for the San Francisco ordinance. More evidence of discriminatory intent would likely be required, however. If the Court found such an intent, it would apply the compelling interest test and likely find that the ordinances violate the Free Exercise Clause. It is also possible, however, that the Court would conclude that the bans are neutral and generally applicable, and therefore valid under the Federal Free Exercise Clause.
Fortunately, the inquiry does not end here: the California constitution protects religious freedom, independently of any federal protection. However, the California Supreme Court has not yet decided what test its constitutional provision requires: the less-protective Smith test or the compelling interest test. Some state supreme courts, such as in my home state of Nebraska, have held that the state constitutional protections of religion provide no more protection than the Federal First Amendment. In the meantime, Jewish and Muslim residents in San Francisco and Santa Monica must wonder whether they will be forced to travel elsewhere in order to practice their religion. Fourteen states have dealt with similar problems by passing state religious freedom restoration acts (“state RFRAs”), which require the compelling interest test for state laws that substantially burden religious freedom. California does not have a state RFRA: the legislature passed one in 1998, but the governor vetoed it.
The proposed circumcision bans illustrate the need for more state RFRAs. They are essential because they provide a legal recourse to people whose religious practices are forbidden by state law. By requiring the compelling interest test, state RFRAs properly balance individuals’ and groups’ interests in religious freedom with the federal government’s interest in forbidding religious exemptions from neutral, generally applicable laws. Without them, religious freedom in many states is left to the whim of the majority, a result contrary to the purpose of protecting religious freedom in the first place.
 U.S. Const., amend. I.
 See Sherbert v. Verner, 374 U.S. 398 (1963)
 Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993); Employment Div., Dept. of Human Resources v. Smith, 494 U.S. 872 (1990). The compelling interest test still applies to non-neutral, non-generally applicable laws. See Smith, 494 U.S. 872.
 See 42 U.S.C. §§ 2000bb–2000bb-4. Though the original version of the law also applied to state law, but the Supreme Court declared that this violated Congress’s Fourteenth Amendment power to make laws ensuring due process and equal protection of the laws. City of Boerne v. Flores, 521 U.S. 507 (1997).
 See Lukumi, 508 U.S. 520.
 See id.
 Alternatively, another exception to the Smith test might apply because the case would involve both free exercise and parental rights.
 See Cal. Const. art. 1, § 4.
 See Catholic Charities of Sacramento, Inc. v. Superior Court, 32 Cal.4th 527, 562 (Cal. 2004).
 See In re Interest of Anaya, 276 Neb. 825, 758 N.W. 2d 10 (2008). For an in-depth treatment of this case, see my article, The Erosion of Nebraska’s Free Exercise Protection: In re Interest of Anaya, 276 Neb. 825, 758 N.W. 2d 10 (2008), 89 Neb. L. Rev. 159 (2010).
 See Ala. Const. art I, § 3.01; Ariz. Rev. Stat. Ann. § 41-1493.01 (West 2004); Conn. Gen. Stat. Ann. § 52-571b (West 2005); Fla. Stat. Ann. § 761.01 to 761.05 (West 2010); Idaho Code Ann. §§ 73-401 to 73-404 (Lexis Supp. 2005); 775 Ill. Comp. Stat. Ann. 35/1 to 35/99 (West 2001); Mo. Ann. Stat. Ann. §§ 1.302 & 1.307 (West Supp. 2011); N.M. Stat. Ann. §§ 28-22-1 to 28-22-5 (2000); 51 Okla. Stat. Ann. §§ 251 to 258 (West 2008) ; 71 Pa. Stat. Ann. §§ 2401–07 (West Supp. 2010); R.I. Gen. Laws §§ 42-80.1-1 to 42-80.1-4 (1998); S.C. Code Ann. §§ 1-32-10 to 1-32-60 (West 2005); Tex. Civ. Prac. & Rem. Code Ann. §§ 110.001 to 110.012 (West 2005); Va. Code Ann. § 57-2.02 (LexisNexis 2003); Utah Code Ann. §§ 63L-5-101 to 63L-5-403 (LexisNexis 2004).
 See A.B. 1617 (1998), available at http://www.leginfo.ca.gov/cgi-bin/postquery?bill_number=ab_1617&sess=9798&house=B&author=baca.