Colorado moves to reinstate Medicaid funding for circumcision. I don’t see this as anything other than an administrative issue. If you can’t see the difference between funding and/or not funding circumcision on the hand and banning the practice altogether, I probably can’t have a rational discussion with you.

Were they funding ritual circumcisions to begin with? I doubt it.

Religious freedom is just that. It does not include subsidy.

What about the individual?

Liberal theorists such as Hobbes, Locke, Rousseau and the drafters of the U.S. Constitution defined a Constitutional framework that set out the relationship between the state and the individual, not the state and its tribes, bands, or families. It’s all men that are created equal.

The premise that these social contracts rest upon is that individually, humans would be “in a state of nature” at war with each other. Instead, they choose to form a society. This is the social contract. It’s the basis of natural law. When the social contract is breached, individuals retain their sovereignty to renegotiate it. The U.S. Declaration of Independence is basically a legal complaint alleging a breach of the social contract. But this liberal theory is based on a  fraudulent premise.

Humans never lived alone in a state of nature. Even before the emergence of our species, we were social creatures. Only with the support of a modern state could an individual contemplate living along in the wild (probably only as an antisocial reaction to the state). The notion of individual supermen paying more than their fair share into the social contract–a sort of step-child of classical liberalism, today’s libertarianism–emphasizes and most depends on this antisocial and fraudulent premise.

A family unit is not made up of similar individuals who are more and less better at every task; rather, the unit is made up of different individuals who perform different tasks as a matter of course. This household setup, ironically, was much more common at the time of the Founders than it is today.

The U.S. Constitution sets out the relations between individuals, the people as a group, sovereign states, and the federal government. It confers rights on individuals (not on states–states have or dot not have powers, not rights). Powers retained by people collectively can theoretically be exercised by states, or withheld from them (theoretically). Mass rights in the Constitution include everything not reserved to the federal government, the right to assemble, the right to bear arms, the freedom from abridgment of privileges or immunities, the right to vote for representatives, senators, and electors for president and vice-president.

Individual rights are also numerous. Some believe that the right to bear arms is an individual right, not a mass one. (Based on the then-existing common law of England, it is likely that the right to bear arms was seen as both a mass and and individual right by the Founders).

But almost no one sees mass rights as an important Constitutional precept today, because, for the most part, people see the federal government as the government that does most of the work. Almost all of the rights are seen as either individual or as belonging to states.

While it is true that states have general sovereignty and the federal government has limited powers, neither has “rights.” Either a power may be exercised by one or both governments or not. To say otherwise is to use political, not legal, rhetoric.

So, where does our Constitutional system leave the family? Almost all family rights come from the due process clause of the 14th amendment in a series of cases that sprung from The New Deal Court. Most cases relate to the authority of parents over their children. Children cannot be forced to go against their religious beliefs in public school. Parents are entitled to raise their children as they see fit, unless there is extreme abuse or neglect. Men and women can choose to marry whomever they please regardless of race, but the federal Constitution (apparently) allows states to ban gay marriage, polygamy, cousin marriage and incestuous marriages, regardless of one’s religious beliefs about the propriety of these marriages. The Court has currently ruled that families have control over their reproduction and planning, though this may change and is limited.

In other words, almost all of a family’s rights are really derived from individual rights to religion, racial equality, and gender equality. Our Constitutional system speaks very little about the family directly.

And so the Cult of the Individual has triumphed for the most part. Marriages are often seen, on the one hand, as romantic wish fulfillment, or, on the other, as a temporary vehicle for legal, financial, tax, and benefit simplicity during the pleasure of the parties. Divorce, even when there are children, is seen as an individual right that requires no fault.

With the expectation of a fairy-tale romance and with the expectation of little sacrifice of individual autonomy, it’s no wonder most marriages fail. Despite the most contentious civil rights issue of the day being the quest for more marriages, more and more Americans believe that the institution is a relic and should be abolished.

Not a small amount of that pressure comes from singles who believe that society punishes them–especially in the tax code and other benefit considerations (even when it is sometimes the other way around).

But even if the state’s treatment of the institution were abolished, families would persist. They would just struggle more.

And that is the result of the Cult of the Individual created by our current politics. It is very easy to turn people against social programs when those social programs are presentable as benefits for others whom the individual voter may never meet, never see, who act differently, have different values, and may do nothing we like at all. It is also hard to see how the difficulty we face paying for those programs every month makes any difference in the vast ocean of social ills out there.

But The Cult of the Individual goes too far. It pits us against each other in an antisocial pathology and is based on the fraud that all humans are lone wolves.

Between antisocial libertarians, Malthusian liberals who believe the population is out of control, postmodern liberals who see all of this discussion as a relic, and conservatives seeking to control and strictly limit the shape the family takes, the family is under assault in the United States from all sides.

Long before there were governments and nations, there were families. In fact, our nearest cousins in the animal world, chimpanzees, also socialize in family units. Family units remain the most important political unit in the world to this day. The Family has resisted the mightiest of empires.

In Ancient China, one emperor attempted to replace family land tenure with the land distribution allocated by the state. For his efforts, he was executed by being quartered by four chariots. In the 20th Cenutry, two of the top three worst despotic regimes in history–Maoist China and Stalinist Russia–both attempted similar collectivization at the behest of the state, and both ultimately failed. Deng’s reforms in the 70s saw the return of the family, as did the easing of Stalin’s grip on Russia.

Similarly, the autonomous family unit’s willing alliance into tribal units has resisted empires as well. The tribal relationships of Afghanistan have failed to dissolve under immense pressure from numerous outside would-be conquerors, including the British, Soviets, and, in the case of the Americans, would-be state builders. All kinds of economic theory notwithstanding, no amount of money has been able to overcome these innate, biological bonds. At least yet.

Most other major nations were founded only after the tension between the family unit and the state was more carefully negotiated. In much of the world, states had to come about for mutual defense–but never pretended to override the family totally.

One extended family in particular has survived thousands of years with only occasional self-rule: that of the Jews. The Bible is an amazing record of the evolution of the family of Abraham into the Empire of Solomon and back to the isolated units of the diaspora. Taken literally, the Bible tells this story in a straight forward manner. Applying critical studies techniques, we can see layer upon layer of subtle reinforcement of this story.

Starting with the House of Abraham, a pastoral band comprised of Abraham, his wives, children, retainers, and servants where the faith is first established, we see the development of a confederation of extended family units linked in part by lineage and in part by religion brought down to Egypt, where their own self-identification becomes a source of their exclusion from being Egyptian, and the source of their formative experience: the exodus. Here, even larger tribal units are congealed under the stress of flight and the glory of conquest. After their arrival in Israel, however, no strong leadership exists. There is no state per se. Only an occasional military leader, a “judge,” arises in time of stress.

It is not until the constant threat of the Philistines on the coast that a sovereign with authority over all of the tribes comes. Yet neither David nor Saul nor Solomon are unchecked despots. The prophets and the broader established priestly class, as well as the pre-existing tribal units, serve as a check on these kings. The extended kingdom or empire of Solomon falls apart along tribal lines in the end.

Ultimately, this is all torn asunder by even more powerful empires from the east.  Most of the Israelites are lost, but the Jews persist, and persist to this day. Why is that? Because their family units and extended family units could not be broken. Not by Nebuchadnezzar, not by Antiochos, not by Hadrian or Titus, not by Torquemada, not by Khmelnytsky or Hitler.

The credit for this miracle inures to the Jewish people, but in part it’s consistent with nature too. But is there something in the Jewish religion that makes this coherence even harder to tear asunder? Though there are similarities in the institutions of India and Europe (and in other places), I can speak to one aspect of Judaism that is a possible source of this resilience. Though not preached by all Jewish authorities, there is a strain of thought present in just about all periods of Jewish history demanding that moral considerations trump political considerations; moral considerations trump economic considerations; and they even trump religious considerations in terms of belief, ritual, and the relationship to the divine. A famous story from the Talmud:

“If the law agrees with me, let it be proved from Heaven.” A divine voice came forth and said:  “Why do you dispute with Rabbi Eliezer, for in all matters the law agrees with him!”  But Rabbi Joshua rose to his feet again and exclaimed:  “[The law] is not in heaven” [Deut. 30:12; implying that the divine law is now in human hands and open to human interpretation regardless of God’s position].  Some time later, Rabbi Nathan met the prophet Elijah and asked him:  “What did the Holy One, blessed be He, do when rebuked by Rabbi Joshua?”  Elijah replied:  “He laughed with joy saying ‘My children have defeated me, my children have defeated me.’” (Emphasis added.)

God is happy that the Rabbis refuse to listen to him! Even God is not a totalitarian in Jewish tradition. So much the more (kal v’komer) that no king could be!

The state can try to atomize these bonds, but it hasn’t figured out how to do it. Let’s hope it never does. But it might be getting closer. Some prior attempts to dissolve the bonds have family have proceeded (either intentionally or unintentionally) along the notion that man is homo economicus and that he will always seek to maximize his economic gains, and “rationally.” In other words, either bribe people out of it (e.g., the US in Afghanistan), or starve people to death and offer them bread in exchange for abandoning their kith and kin (e.g., Mao).

Perhaps the most successful assault on the family unit is underway right here in America—and everywhere else that the Neoliberal economic order has become the de facto religion. Yet we are distracted from the source of the threat. Certainly, it does not come from gays trying to create their own families. It does not come from any of the sources that seem to be blamed. Abortion is often blamed. But it seems to me that, of all of the complications involved in that issue, contending that it weakens families seems among the more spurious. Unwanted pregnancies rarely create stable family units, whatever else they may do. Alternative lifestyles also seem to be blamed. Ironically, one of the most contentious issues of the day is the desire of gay Americans to make more families. If the issue were institutional support for promiscuity or permanent singlehood, I would be against it.

Feminism is blamed, but how can we demand submissive Stepford wives when most families need the mothers in the workplace now? Divorce is also often blamed, but this seems like saying death is the cause of the fatal illness. What makes divorce occur?

The decay of religious institutions, especially mainline Protestant denominations, in the last decades has corresponded with a rearrangement of the family unit into one not based on economics and moral reasons together, but one based on economic reasons only, while at the same time the belief in finding the perfect spouse for romantic reasons has increased. This tension between reality and practice has created a difficult cognitive dissonance for marriages to overcome.

And what has replaced religion? Some secular faith in the American Constitution? Hardly. A kind of economic religion has, based on the god called the “invisible hand.” The American worker has become more and more productive, yet has not seen an inflation adjusted raise in decades. Worse, American families largely depend on two working parents if they hope to see enough income to support a family unit.

The economic upheaval of this period has also forced families to move far apart from each other. Some places, like Hawaii, have become places where children remaining near their families is almost impossible after graduation from high school due to limited economic opportunity, high cost of living, and other factors. If it weren’t for modern travel and communications, the persistence of family units beyond the most nuclear elements would be impossible. Even with them, extended-family get togethers are often infrequent and focused on major life-cycle events like births, weddings, graduations, and deaths—with closer families getting together on holidays.

The economic establishment has chafed at and resisted attempts to make the workplace more family-friendly. Very few American workers have access to paid family leave; indeed, most have no access to paid time off of any kind. Advancement is problematized by family commitments, including pregnancy. And, again, the ever-accelerating number of different jobs American workers will have in their life makes what benefits they do have less and less portable. Daycare, though not the best option, is expensive and out of reach for many.

Reforms providing solutions to these problems would be branded as “socialistic.” In some literal sense, that might be true. But in the sense of resisting the kind of totalitarian state associated with “socialism” and other “-isms” nothing could be further from the truth; nothing could do more to resist a totalitarian state than the strengthening of the family unit as a political, moral, and economic unit.

Everyone knows the saying “if it quacks like a duck” etc. etc. it must be a duck. This is a folksy way of dealing with de facto and de jure differences between things. But sometimes it just isn’t a duck.

When people learn about male circumcision and read an article about female circumcision they naturally connect the two. And it sounds like genital mutilation. Let’s call that the duck here.

I’m not going to lie. The thought of razors on my johnson doesn’t exactly fill me with glee. It’s not as if I don’t get why someone’s stomach would churn a bit when the topic comes up. I also very much understand the urge to criminalize any and all abuse of children.

But what the people that want to pass an outright ban on the practice are seeing is not the “duck.” First and foremost, there’s of course a very significant question of religious freedom here. Second, are there really other indicia of a violent or oppressive act here? Are the people engaging in this somehow depraved? Is it a harm to the community in general–even along the lines of the way other victimless crimes like drug use allegedly hurt the community? Is this practice being done contrary to all sound medical advice?

Of course, the medical information is ambivalent. But even to engage with the question of a medical justification presumes that we need a medical justification. Here, the question is raised about whether an eight-day old can give consent. No, but there are all kinds of things that parents must give consent for for their children.

It just doesn’t quack like a duck on closer examination. It shoudn’t be banned.

Unfortunately, the rest of the country and the world–or even most Californians for that matter–don’t really seem to understand how trivial it is to get  almost anything on as a city- or county-level ballot initiative. It doesn’t mean the people of San Francisco or Santa Monica support it. Not too long ago, San Francisco rejected a ballot initiative to name a sewer treatment plant after President Bush even though there’s no doubt that the large majority of its residents disliked Bush.

A ridiculously antisemitic comic didn’t help matters at all. In a sort of funny reversal, every right-winger in America was suddenly sensitive enough to this kind of hateful message for what it was ( while many of the same claim the cartoons with watermelons on the White House lawn are not racist. Oy.).

But it’s a huge mistake to attribute this group’s feelings to the City at large any more than it would be to attribute “kick a Jew day” in conservative Naples, Florida to all of its residents. The sad truth is that people engage in acts of hatred all over the world all the time. By the standard some were willing to apply to San Francisco, the whole country and every state in it must be antisemitic. Unfortunately, “San Francisco” has become a handle for a specific kind of political hate speech as well.

At the end of the day, this exercise is silly. As a leading Constitutional law scholar at UC Hastings has already pointed out (I agree), there is little chance this law will survive Constitutional muster. The Supreme Court, however, has sent mixed signals on laws of “general application” even if they prevent a religious observance. For example, the banning of illegal drugs was held not to be a violation of the freedom of religion because it wasn’t aimed at a specific sect. While that argument could certainly be made in favor of the ban, I don’t think it will ultimately fly.

I think that there may be a difficult-to-name quality about the case I just mentioned because it involved the use of drugs. The court, if it ruled otherwise, would be allowing a loophole to just about any law if it was deemed to be a religious practice. They would put themselves next in the position of having to decide who was a bona fide religion. (The Roman Empire’s having engaged in this kind of judgment is why the new Christian sect was so keen on connecting itself to Judaism, despite its mostly gentile membership.) If nothing else, the hate comic could be used as evidence that this law is aimed at a specific religion. I think a key distinction is that it is aimed at all sects of religion as opposed to just everyone generally. In other words, even if a law is aimed at two, three, or fifty religions, it still should be unconstitutional because there is no medical evidence of its harm. That simply isn’t the case with peyote.

Democrat Brad Sherman of Sherman Oaks, California is introducing a bill tomorrow to prevent cities from banning circumcision. The question is–will this law itself pass Constitutional muster?

Obviously, I’m not a Supreme Court justice and the bill hasn’t even been filed yet. But based on what I’ve read, there are some difficulties. First, bans of this kind are what a lot of conservative legal scholars would call “Tenth Amendment” issues. In other words, they aren’t properly the subject of federal legislation; they belong to the states. Second, the fact that it lets the states themselves decide this issue–just not their subentities–in a way even more deeply intervenes in state power.

Conservative legal scholars would point out that a law like this also has no connection to interstate commerce, so Congress has no power to enact it.

There are plenty of legal ways that most mainstream commentators of any political persuasion agree on that Congress can enforce its will, such as through taxing and spending. This might also be something that could be regulated in certain circumstances by Medicare and Medicaid funding the way both are not allowed to fund abortion, say, by denying funds to any state that enacts a circumcision ban or allows any of its subentities to do so.

My belief, however, is that a law like this, one that is clearly aimed at a religious practice even if not aimed at one religion in particular, may be banned by a Congressional act through Section 5 of the 14th Amendment, which states that

The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

“This article” includes the due process clause (which applies the First Amendments religious liberties to the state and requires a rational state purpose in the enactment of laws) and the equal protection clause both of which are implicated here.