view counter
Scalia Legal Surprises

High Court Justice Takes Unexpected View of San Francisco Circumcision Case

Special To The Jewish Week
Photo Galleria: 

Supreme Court Justice Antonin Scalia, one of the country’s most influential jurists and a leading voice of conservatism on the high court, died Saturday at age 79. Scalia appeared at Yeshiva University in November 2013 and advanced a view on a controversial San Francisco circumcision law that seemed to cut against the grain of most of his church-state comments. Below is a Jewish Week report of that appearance.

A hero to many in the Orthodox community on matters relating to the separation of church and state, Supreme Court Justice Antonin Scalia’s comments on circumcision at a Yeshiva University forum last Wednesday night may have come as an unpleasant surprise to those who think the justice’s opinions flow from his own religious beliefs.

How would he have ruled, he was asked by attorney Nathan Lewin, had a 2011 attempt to criminalize circumcision in San Francisco succeeded and eventually made its way to the high court?

“If the practice is something that society does not want, and it’s not intended to discriminate against Jews in particular, I think the law is perfectly valid,” he said to a crowd somewhat mystified by how incongruous the remark seemed in the context of Scalia’s other church-state comments.

Lewin, who has argued almost 30 cases before the Supreme Court, many on the subject of religious liberties, sat across from Scalia on the stage of YU’s Strauss Center for Torah and Western Thought to discuss their interpretations of the Establishment Clause of the First Amendment; that clause states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Rabbi Dr. Meir Y. Soloveichik, the director of the Strauss Center and the spiritual leader of Congregation Shearith Israel in Manhattan, moderated.

Rabbi Soloveichik began by asking each of the participants what he considered the original meaning of the Establishment Clause. The conservative Scalia reaffirmed his well-known position that the early definition of the Establishment Clause was vastly different than how it is often understood today. When first written, it meant that Congress would neither establish a religion itself, nor try to disestablish religions that were already established, said Scalia, the longest-serving justice on the court.

“It surely does not mean that God has to be driven out of the public forum,” the justice said.

Lewin agreed, remarking that the modern understanding of the Establishment Clause has been detrimental to the Jewish community, as states cannot fund even secular subjects taught at day schools. He noted that when he has argued similar cases, his opponents usually include Jewish organizations such as the American Jewish Congress, the Anti-Defamation League and the American Jewish Committee.

“The Jewish community has taken this position over history, that we have to cleanse government or schools of any mention or association with religion,” he said. According to Lewin, Jews were initially concerned that the inclusion of religion in public institutions would result in proselytization. However, he said, “Time has proved that the theory of proselytization is no longer what we should be concerned with. What we should be concerned with today is assimilation.”

Scalia and Lewin touched upon several cases, including:

  • Goldman v. Weinberger: Shortly before Scalia was appointed to the court in 1986, Lewin argued unsuccessfully that a Jewish Air Force officer be allowed to wear a yarmulke while in uniform.
  • County of Allegheny v. ACLU: A 1989 case argued successfully by Lewin, in which the Supreme Court, including Scalia, ruled that Chabad Lubavitch had a right to keep a Menorah on public property.
  • Board of Education of Kiryas Joel Village School District v. Grumet: A 1994 case in which Lewin argued for the creation of a school district based on the borders of a Satmar community to allow handicapped Satmar students to attend a secular school without students from radically different cultures. The court held that the creation of such a district was unconstitutional, with Scalia writing a scathing dissent.

Scalia and Lewin did not agree on the legality of a ban on circumcision, however. For most of the evening, the former Harvard Law classmates traded playful barbs. At one point, Lewin said, “I don’t mean to question whether Justice Scalia is sometimes inconsiderate, but that’s who he is.” At another, Lewin was talking about a case he had argued before the Supreme Court when Scalia broke in and said, “And you lost again, didn’t you?”

Shuli Karkowski, a graduate of Harvard Law in attendance, said she was impressed by Scalia’s honesty, especially considering that not all of his opinions were popular with the audience.

“Even when I don’t agree with Justice Scalia, I think he takes both a consistent and principled approach,” she said. “I’m surprised that he said how he would rule in the bris case. Most justices are disinclined to speak on any matter that could possibly come before the court.”

In fact, Scalia acknowledged that, at times, he can be more forthright than someone in his position ought to be. In the interest of putting his guest at ease, Soloveichik told the justice to feel free to say whatever he wanted.

“If you want to share a secret, just share it with a thousand Jews and you’ll be all set.”

Inset: Supreme Court Justices Scalia and Ginsburg Discuss First Amendment At Forum. Getty Images

Last Update:

02/16/2016 - 10:04
The Jewish Week App -- Now Available!
view counter


The content of this field is kept private and will not be shown publicly.

Comment Guidelines

The Jewish Week feels comments create a valuable conversation and wants to feature your thoughts on our website. To make everyone feel welcome, we won't publish comments that are profane, irrelevant, promotional or make personal attacks.

Famous last words! The answer to Mr Scalia came quickly. Torah rules in Heaven and on earth. Circumcision is a Jewish human right and obligation.

“If the practice is something that society does not want, and it’s not intended to discriminate against Jews in particular, I think the law is perfectly valid,” he said to a crowd somewhat mystified by how incongruous the remark seemed in the context of Scalia’s other church-state comments.

Scalia's statement begins with 'IF'. Actually 2 if's. My interpretation of Scalia's comment is that he would say the [San Francisco] law is unconstitutional because 1) it is not clear that society does not want it, and 2) it IS intended to discriminate against Jews.

I don't think anyone wants to interfere with freedom of religion, but religion sometimes has outdated commandments that violate human rights, IE stoning homosexuals. I think circumcision clearly and unquestionably is a violation of human rights. Removing the most sensitive part of the penis in an excruciating painful, bloody, dangerous and unnecessary surgery has no place in a civilized society.
My body, my choice.

Just like many of the kosher laws, circumcision may have made good health sense to a desert people living in an arid, water poor part of the world during the Stone and Bronze Ages. Especially when considering their lack of any concept of invisible teeny-tiny pathogens. But I wonder if G-d came back today if he would say, "Vat you don't got inside plumbing already?" My 4 boys have all liked washing with soap and water.

I am not surprised by the circumcision comments from the Justice. They follow his personal belief system. I am surprised by Mr. Levin's comments that “Time has proved that the theory of proselytization is no longer what we should be concerned with." As a member of a jewish family living in the Bible Belt, we have faced our child being discriminated against for her beliefs at school, in teen activities and other social events. The discrimination and proselytization are almost all peer driven with active support from local ministers and a blind-eye from school officials.

For those speaking against the command to circumcise - know that a Jew who intentionally does not circumcise gets the punishment of Kareth - that is he cut off in the next world as we have been taught by Moses our master and teacher:
See 17:14


Its amazing how readers of the Jewish week are so anti-Judaism.

Why is the headline "Scalia Suprises"? He has made no secret that he wishes the US was a Christian theocracy. Under his logic, kosher slaughter, or even saying the Shema could be banned. The Shema was banned in European countries because it offended the Christian notion of a tripartite god head, by saying "G-d is One." Scalia says that what is offensive can be banned. Wake up right wing Jews as to just who and what you are supporting!

male genital cutting should be up to the individual the parts are attached to.
Why are you so afraid that he will choose to keep his foreskin that you force such a personal decision upon him before he could lift an arm in protest?

I am shocked to find myself in agreement with Justice Scalia, but he is actually standing up for freedom of religion...of the infant. When the infant matures, he/she might not choose to follow the religion of his parents...he/she has the right to have no religion at all. Parents have the right to educate their children as they see fit, since education is completely reversible. They do not have the right to impose an irreversible excision of healthy, functional erogenous tissue. My body belongs to me!

Justice Scalia said such a law would be constitutional. He did not say such a law would be a good thing. Moreover, there's a little subtlety that the judge could not get into. When "not directed at Jews in particular" is mentioned, that implies being really not directed against Jews (or Jews & Muslims). To see how hard it is to avoid this problem in passing anti-circumcision laws, consider this decision, to which Justice Scalia is indirectly referencing:

While some might think his statement didn't go far enough.....just the fact that he is reiterating that the call for a ban on infant circumcision is not an act of anti semitism is.....huge. It's about the human rights of infant boys and not religion.

I am very happy to see this step in the right direction. Baby boys should have just as much right to grow into men who still have all of their penis as baby girls already have to grow into women who have every part of their vulva. Human body, human rights!

I am a Jewish mother who would not allow my son to be circumcised because the act is simply a violation of human rights. His perfect body is his. Maimonides said let no man be circumcised against his will and babies are not men. If men want to mutilate their genitals, it is their decision. I would not sanction any such surgery on my son or daughter. The parents' job is to PROTECT their children. We would all be better served if people questioned traditions of this nature, questioned doctors who advocate circumcision and stand up against grandparents, religious advocates and others who threaten their natural instincts to protect babies.

Maimonidies said no such thing.

He said that those who intentionally remain uncircumcised have no share in the world to come.

And what if one does not believe in a world to come?
For my part, I doubt that there is an angel standing at the Gates of Heaven, who demands that all males lift their robes to allow their genitalia to be inspected.

Routine infant circumcision is not recommended by any medical association in the world and some advise against it. Some European countries are in the beginning stages of banning the practice. It has no proven or guaranteed health benefits, and has many risks associated, including death. At least 117 infants die in America per year from circumcision-related complications.The foreskin is healthy, functional tissue and its forced removal constitutes a human rights violation.
America's stance on circumcision seems to be moving in the right direction, but ever so slowly.

Circumcision alters sex dramatically. Informed adults can decide for themselves whether to give up healthy normal body parts.

In the United States, there are far more circumcised Gentile men than Jewish ones, meaning attempts to outlaw circumcision are not based on antisemitism. Many Jews are against circumcision. For example, Theodor Herzl opposed circumcision (he didn't circumcise his own son) and he's considered the Father of Zionism. Circumcision isn't essential to Jewish practice or Jewish identity. If you look back through history, there have been bans on circumcision dating back to BCE times and Judaism survived them all.

The presence of other groups who perform a practice does not mean that a law against a practice is not a violation of religious freedom. The complex problem referenced by Justice Scalia's words "not directed at" is the subject Church of the Lukumi Babalu Aye v. City of Hialeah (91-948), 508 U.S. 520 (1993). As one who only really understands law respecting murder, this is outside my purview. Nonetheless, the law voided did not even mention Santeria, the religion of the plaintiffs. Muslims sacrifice animals on a holiday called Eid Al-Adha, so the argument that because Muslims circumcise a law is completely valid is also untrue. The religious rights of Santeria, which does sacrifice, were still considered to have been violations of the first amendment. I do not pretend to understand the decision, but simply offer it to tell you that part of constitutional law is exceeding complex. It's enough that i understand fourth amendment issues.

Also, the mere fact that Justice Scalia says a law is constitutional does not imply he thinks it ought to be passed. He has a great saying about a stamp for federal judges to use, "stupid but constitutional", when making rulings on law.

Those saying that preventing the cutting off parts of a baby boy violates the cutter's freedom of religion, are way out there in irrational land. One's religion ends where their knife touches another human's body. The idea that another human's ritual (rite) trumps ones right to ones OWN body parts is insane and creepy.

EVERY HUMAN (male and female) has the RIGHT (a human right) to reach adulthood with all of the tissue (particularly all of their erogenous tissue) that THEIR genetic code provides.


Justice Scalia could have been more forthright than just suggesting that infant genital cutting might be "something that society does not want". It is something contrary to all the human rights conventions since 1949, and to laws against assault and maiming. Freedom of religion does not extend to practising one's religion on other people without their consent, especially when it involves surgically reducing their bodies, as everybody agrees when those people are minor females. The 14th Amendment and basic human decency demand that the same right be extended to males.

Man made religions or customs are sort of an insanity, God or Nature , what ever come first, evolved or created,do not create any errors on the male reproductive, its purpose is to it cover the internal organ as intended for protection, smoothness and a gliding mechanic, all for the benefit of the female above all.To hell with any religion that do not respect Gods creation and ruin it

Circumcision is a barbaric violation of a child's human rights. It is an unnecessary surgery on a baby that removes a functioning, healthy sexual organ that has numerous purposes without a child's consent. Studies have found it even increases a person's chances of having sexual problems. The foreskin evolved in all mammals for reason. The council of Europe has finally voted that infant circumcision violates the child's rights to physical integrity. this is going to be a long battle, but the human rights of children will win. even if it takes a hundred years.

view counter