Circumcision and Hybrid Rights

Michael Helfand has a very thoughtful discussion of this (in my view) misguided piece of legislation (it looks like a ballot proposal).  Calvin Massey also comments perceptively here.  I do not think that the ban would violate the rule of constitutional free exercise as interpreted by Employment Division v. Smith -- that neutral laws of general application are constitutional so long as no religion is being specifically targeted (as in the Lukumi-Babalu case).  With respect (Professor Massey knows more about constitutional law than I hope to know 10 years from now), I do not think that the legislative exception for "physical health" and concomitant statement that "custom or ritual" is not a basis for exemption rises to the level of targeting contemplated by Smith.  Certainly it's nowhere near the sort of record of specific targeting that existed in Lukumi-Babalu.  

Suppose a locality forbade the drinking of liquor for health reasons, and in the legislation there was a statement that "custom or ritual" shall not be a basis for exemption from the law.  Without any more evidence, I do not think that, under Smith, Catholics would be able to raise a free exercise claim (it might be different, though I am not certain, if a locality banned the drinking of wine only, and not other liquor, for health reasons).  At the very least, I'd like to see a whole lot more evidence of the reason that the legislature included the "custom or ritual" proviso before relying on the Smith holding.  A case like this one is one reason (among many) that I oppose Smith.

Mike Helfand raises the nifty point that perhaps the case falls within the hybrid rights analysis of Smith.  So, for example, the Court in Smith characterized Wisconsin v. Yoder as a case in which the Amish were really bringing two linked constitutional claims -- a free exercise claim and a claim of parents to direct the "education" of their children (which is not really the same as the right to control the "upbringing" of one's children -- that's why Yoder now -- post-Smith -- stands in the Pierce v. Soc'y of Sisters and Meyer v. Nebraska line, rather than in some broader parents' rights category).  As Professor Massey notes, the Ninth Circuit has held that to qualify for hybrid rights status, each right must be independently colorable.  Relying on a portion of a dissent by Judge Kleinfeld in a case involving the right of landlords to decide not to rent to unmarried tenants based on the landlords' religious views, Mike makes some nice arguments that the circumcision law directly implicates the parental rights hybrid carved out by Smith. 

I like the argument, but I am not so sure.  The reason is that reading the hybrid framework to encompass a situation in which "parental rights" writ large qualify for exemption increases the scope of the exemption to the point where it threatens to swallow the rule.  So long as children are involved, we've got a hybrid issue, since any issue can be characterized as one relating to "upbringing."  We could even characterize a wine ban as implicating issues relating to "upbringing" -- a ban on wine prevents me from raising my child in accordance with the religious practices and rituals that I deem important (for Catholics, a ban on wine would do more than this, of course, but it would do at least this, too).  The parental rights hybrid discussed in Smith had to do with educational issues specifically, not all issues of child upbringing.  I am, of course, sympathetic to the view that a parent for whom circumcision is a deeply important practice will look upon the banning of the practice as affecting the child's "upbringing" as well as his "education."  But I think that "education" at least can be made to look like an actual exception to the Smith holding.  I doubt that Smith contemplated that all claims which are in any way related to a child's upbringing could qualify for hybrid exemption (cases like Troxel v. Granville are different, because they are not hybrids). 

At all events, the difficulty with applying the hybrid framework is one reason that some courts (like the Second and Sixth Circuits) have simply treated the hybrid discussion as dicta, largely ignoring it.  See Leebaert v. Harrington, 332 F.3d 134 (2d Cir. 2003); Kissinger v. Bd. of Trustees of Ohio State Univ., 5 F.3d 177 (6th Cir. 1993).  Take a look at the terrific posts by Helfand and Massey -- what do you think?  Are parental rights to guide "education" persuasively distinguishable from parental rights to manage "upbringing" insofar as the hybrid approach is concerned?  Does failing to distinguish them threaten the holding of Smith itself (I don't think it would threaten the holding of Smith as applied to the Smith facts...but would it affect the holding as applied to other kinds of cases)?  As an opponent of Smith, and from a strategic point of view, perhaps I ought to acknowledge that this sort of approach might not be a bad way to chip away at it...

ONE MORE NOTE: I should add that at footnote 1 of Justice Scalia's opinion in Smith, he quotes language from Yoder describing Pierce as a "charter of the rights of parents to direct the religious upbringing of their children . . . ."  So perhaps this is a point in favor of the view that Michael advances about the scope of the hybrid framework.  On the other hand, the text of the opinion refers specifically to children's "education" and Pierce itself (as well as Yoder and Meyer) was about education, not upbringing more generally.