Schwerpunkt  Die Beschneidungs-Debatte

Why the Circumcision Judgment looks so weird to American Eyes

The Cologne Landgericht decision proclaiming religious circumcision to be a form of illegal assault will apparently soon be superseded by legislation permitting the practice under certain conditions. Nevertheless, the mere fact that the decision came about – coupled with its endorsement by many members of the German criminal-law community and the fact that approximately half of Germans want to see religious circumcision punished by law – points at a continuing controversy. Circumcision also presents an interesting cross-cultural case study, since it is not expressly regulated in either the United States or (yet) in Germany. An enlightening 2002 analysis by Geoffrey P. Miller shows that all U.S. published U.S. court cases about male circumcision involve botched operations or problems with obtaining parents’ consent. It appears that no U.S. court has yet addressed a situation in which a doctor has been criminally prosecuted for competently performing a circumcision with the consent of the child’s guardians.

Even were such a case to emerge, it’s difficult to imagine a similar outcome. Following the First Amendment’s explicit ban on ‘established’ churches, the Supreme Court has limited government interference in private religious rituals. A line of Supreme Court cases has called for the government to display a ‘wholesome neutrality’ toward all religions, and to avoid unnecessary ‘entanglement’ of church and state. Accordingly, the Supreme Court has forbade American government entities from pronouncing on internal church administration, drawing government administrative boundaries to accommodate religious sects, or banning controversial religious practices under the pretext of public safety. This basic suspicion of intermingling secular administration and religion is widespread among legal officials. The average District Attorney, presented with a case in which a third party complained about a properly-performed circumcision, would almost certainly use her discretion not to prosecute.

The second (somewhat related) strand of jurisprudence emphasizes family autonomy. In a landmark 1972 case, Wisconsin v. Yoder, the Court upheld the right of Old Order Amish families to withdraw their children from formal education at the age of 16, observing that though there is no explicit guarantee of family autonomy in the Constitution, ‘the values of parental direction of the religious upbringing and education of their children in their early and formative years have a high place in our society.’ The state, for example, may not ban parents from sending their children to private religious schools or even educating them at home, as long as curricular standards are met. The fundamental Constitutional principle of American family law, repeated in case after case, is to presume that “natural bonds of affection lead parents to act in the best interests of their children”. When the parental autonomy is bound up with religious practice, the rationale for judicial circumspection becomes even clearer.

And indeed, the decision of the Cologne court demonstrates the problems that occur when courts intrude in this area. Considering its worldwide resonance, the decision itself is astoundingly brief, just a few paragraphs long. At one point, the court accuses the doctor (and, by implication, the boy’s parents) of infringing the boy’s right to choose his own religious affiliation. Yet the mere fact that a child is circumcised doesn’t irrevocably commit him to Islam, as the 55% of American males who are circumcised can attest. Second, the court can hardly have thought through its proposed right for children to freely choose their religion. Both of Germany’s established religions provide for elaborate public rituals in which children are brought into their parents’ or community’s faith long before they are of age to make binding legal commitments under German law. Granted, these induction ceremonies don’t involve circumcision, but the court did not bother to limit its principle only to these cases. Like many legal commentators, the court also confidently proclaimed circumcision to be against the child’s best interests without ever suggesting why the child’s parents, who obviously had different views, should be ignored.

These problems help explain the different reactions to the decision among German and foreign observers. Christian Germans (whether devout or nominal) are rarely circumcised. This is in stark contrast to the United States, where routine circumcision was adopted during the late 19th century on hygiene grounds (including the prevention of masturbation) which would now be considered dubious. Yet the practice remains well-accepted: The American Pediatric Association recently concluded that “scientific evidence demonstrates potential medical benefits of newborn male circumcision” and explicitly noted that it is “legitimate for parents to take into account cultural, religious, and ethnic traditions, in addition to the medical factors, when making this decision.” By contrast, circumcision in Germany has only been customary among two religious minorities, one of which was decimated during the Third Reich, and the other which only arrived in significant numbers in the last 40 years. The generally positive reaction to the decision among Germany’s socially conservative legal culture shows a lasting undercurrent of suspicion against customs and beliefs that have “non-European” roots – and of the parents who wish to pass them on to their children.

Two Models of Freedom and Responsibility

Yet there is another factor driving the circumcision controversy: a stronger emphasis on social cohesion. Again, the comparison with the United States is instructive. America is, in many respects, an an outlier in terms of governmentally-enforced social cohesion. There is no national identity card in the United States, and some 10 per cent of the population has no picture identification of any kind. American rules regarding home schooling and religious education are among the most liberal in the world. Unlike every other government in the world, the American state is constitutionally debarred from banning hate speech and propaganda in the name of social harmony. Aside from wartime, compulsory military or civil service has never existed in the United States. And, of course, the American social safety net is designed only to provide transitional, time-limited aid. The possibility that the devout might create self-perpetuating ‘parallel societies’, a perennial source of anguish in the European media, is largely absent from American public discourse. This is not because such parallel societies do not exist in the USA – quite the contrary is true – but because their existence is not seen as problematic as long as they do not encourage crime or exploitation. (Of course, these libertarian hallmarks coexist with a massive security sector and the highest imprisonment rates in the world – but exploring this paradox is beyond the scope of this post.)

Although the German political order also guarantees its citizens wide-ranging civil freedoms, the approach is subtly different. In an interesting article on the ‘German Idea of Freedom‘ Edward J. Eberle argues that Germany’s conception of individual liberty — while robust and deeply-rooted — differs significantly from that found in the United States. In contrast to the freewheeling American conception of individual rights (accompanied by an equally unfettered free market), the German conception of liberty ‘take[s] place within a moral structure erected on ethical concepts that include human dignity and its multiple radiations, people acting within the bounds of a social community with its ensuing reciprocal obligations, and a Sozialstaat.’ Further, the discussion of rights in Germany is coupled with ‘duties rooted deeply in the culture and community’.

This conception of ‘freedom’ conditioned by social integration (which, of course, prevails in many Continental European cultures) enables the state to make claims on its citizens that would be controversial in Anglo-Saxon countries. German court decisions, for example, permit government officials to reject parents’ chosen names for their children on a number of grounds, including that the name might subject the child to ridicule or does not clearly indicate the child’s gender. Until recently, military service was compulsory in Germany, although many young men opted out under liberal conscientious-objector laws. Germany also has a registration law, which requires Germans to timely inform their government of any change in address. Germany has comprehensive federal laws regulating everything from the permissible size of huts on garden allotments to the content of vacation contracts, and a sizable contingent of ‘order police’ (the Ordnungsamt) to enforce them. The German legal order does not provide for untrammeled free speech – pro-Nazi rhetoric is illegal, and media which publish insulting or privacy-intruding material may be confiscated and their owners fined.

The flip side of this intrusion is an impressive network of social rights and benefits. Despite recent reforms, German social welfare benefits are still much more generous than their American counterparts — but recipients may also required to submit to intrusive surveillance. Germany has universal health insurance provided by subsidized insurance companies which are run on the principle of ‘solidarity’. Germans receive large welfare subsidies for having children, and enjoy some of the most generous family leave policies in the world. Virtually all higher education is provided free of charge (or for nominal tuition) by government-funded universities. All workers are guaranteed several weeks of paid vacation per year. Even welfare recipients can petition for extra money to pay for a child’s wedding or a vacation.

To put it simply, the German social bargain permits the state to intrude more deeply into citizens’ affairs in certain areas, in return for providing them with an array of services designed to foster personal development and socialize common life-risks. Germans face more subtle pressure to conform to majority social norms, but in return enjoy benefits conferred by that majority itself. This ideology of ‘duties rooted deeply in the culture and community’ may have influenced the German court’s reasoning: Instead of simply endorsing parental autonomy tout court, the judges asked whether the parents’ choice would bind their child closer to the majority ‘culture and community’ of Germany. Because it would not, it was that much easier to second-guess. Yet the reaction to the court’s decision seems to mark a subtle shift in consensus-minded Germany toward accommodating beliefs and rituals which will always remain outside the mainstream.

 By ANDREW HAMMEL

The Cologne Landgericht decision proclaiming religious circumcision to be a form of illegal assault will apparently soon be superseded by legislation permitting the practice under certain conditions. Nevertheless, the mere fact that the decision came about – coupled with its endorsement by many members of the German criminal-law community and the fact that approximately half of Germans want to see religious circumcision punished by law – points at a continuing controversy. Circumcision also presents an interesting cross-cultural case study, since it is not expressly regulated in either the United States or (yet) in Germany. An enlightening 2002 analysis by Geoffrey P. Miller shows that all U.S. published U.S. court cases about male circumcision involve botched operations or problems with obtaining parents’ consent. It appears that no U.S. court has yet addressed a situation in which a doctor has been criminally prosecuted for competently performing a circumcision with the consent of the child’s guardians.

Even were such a case to emerge, it’s difficult to imagine a similar outcome. Following the First Amendment’s explicit ban on ‘established’ churches, the Supreme Court has limited government interference in private religious rituals. A line of Supreme Court cases has called for the government to display a ‘wholesome neutrality’ toward all religions, and to avoid unnecessary ‘entanglement’ of church and state. Accordingly, the Supreme Court has forbade American government entities from pronouncing on internal church administration, drawing government administrative boundaries to accommodate religious sects, or banning controversial religious practices under the pretext of public safety. This basic suspicion of intermingling secular administration and religion is widespread among legal officials. The average District Attorney, presented with a case in which a third party complained about a properly-performed circumcision, would almost certainly use her discretion not to prosecute.

The second (somewhat related) strand of jurisprudence emphasizes family autonomy. In a landmark 1972 case, Wisconsin v. Yoder, the Court upheld the right of Old Order Amish families to withdraw their children from formal education at the age of 16, observing that though there is no explicit guarantee of family autonomy in the Constitution, ‘the values of parental direction of the religious upbringing and education of their children in their early and formative years have a high place in our society.’ The state, for example, may not ban parents from sending their children to private religious schools or even educating them at home, as long as curricular standards are met. The fundamental Constitutional principle of American family law, repeated in case after case, is to presume that “natural bonds of affection lead parents to act in the best interests of their children”. When the parental autonomy is bound up with religious practice, the rationale for judicial circumspection becomes even clearer.

And indeed, the decision of the Cologne court demonstrates the problems that occur when courts intrude in this area. Considering its worldwide resonance, the decision itself is astoundingly brief, just a few paragraphs long. At one point, the court accuses the doctor (and, by implication, the boy’s parents) of infringing the boy’s right to choose his own religious affiliation. Yet the mere fact that a child is circumcised doesn’t irrevocably commit him to Islam, as the 55% of American males who are circumcised can attest. Second, the court can hardly have thought through its proposed right for children to freely choose their religion. Both of Germany’s established religions provide for elaborate public rituals in which children are brought into their parents’ or community’s faith long before they are of age to make binding legal commitments under German law. Granted, these induction ceremonies don’t involve circumcision, but the court did not bother to limit its principle only to these cases. Like many legal commentators, the court also confidently proclaimed circumcision to be against the child’s best interests without ever suggesting why the child’s parents, who obviously had different views, should be ignored.

These problems help explain the different reactions to the decision among German and foreign observers. Christian Germans (whether devout or nominal) are rarely circumcised. This is in stark contrast to the United States, where routine circumcision was adopted during the late 19th century on hygiene grounds (including the prevention of masturbation) which would now be considered dubious. Yet the practice remains well-accepted: The American Pediatric Association recently concluded that “scientific evidence demonstrates potential medical benefits of newborn male circumcision” and explicitly noted that it is “legitimate for parents to take into account cultural, religious, and ethnic traditions, in addition to the medical factors, when making this decision.” By contrast, circumcision in Germany has only been customary among two religious minorities, one of which was decimated during the Third Reich, and the other which only arrived in significant numbers in the last 40 years. The generally positive reaction to the decision among Germany’s socially conservative legal culture shows a lasting undercurrent of suspicion against customs and beliefs that have “non-European” roots – and of the parents who wish to pass them on to their children.

Two Models of Freedom and Responsibility

Yet there is another factor driving the circumcision controversy: a stronger emphasis on social cohesion. Again, the comparison with the United States is instructive. America is, in many respects, an an outlier in terms of governmentally-enforced social cohesion. There is no national identity card in the United States, and some 10 per cent of the population has no picture identification of any kind. American rules regarding home schooling and religious education are among the most liberal in the world. Unlike every other government in the world, the American state is constitutionally debarred from banning hate speech and propaganda in the name of social harmony. Aside from wartime, compulsory military or civil service has never existed in the United States. And, of course, the American social safety net is designed only to provide transitional, time-limited aid. The possibility that the devout might create self-perpetuating ‘parallel societies’, a perennial source of anguish in the European media, is largely absent from American public discourse. This is not because such parallel societies do not exist in the USA – quite the contrary is true – but because their existence is not seen as problematic as long as they do not encourage crime or exploitation. (Of course, these libertarian hallmarks coexist with a massive security sector and the highest imprisonment rates in the world – but exploring this paradox is beyond the scope of this post.)

Although the German political order also guarantees its citizens wide-ranging civil freedoms, the approach is subtly different. In an interesting article on the ‘German Idea of Freedom‘ Edward J. Eberle argues that Germany’s conception of individual liberty — while robust and deeply-rooted — differs significantly from that found in the United States. In contrast to the freewheeling American conception of individual rights (accompanied by an equally unfettered free market), the German conception of liberty ‘take[s] place within a moral structure erected on ethical concepts that include human dignity and its multiple radiations, people acting within the bounds of a social community with its ensuing reciprocal obligations, and a Sozialstaat.’ Further, the discussion of rights in Germany is coupled with ‘duties rooted deeply in the culture and community’.

This conception of ‘freedom’ conditioned by social integration (which, of course, prevails in many Continental European cultures) enables the state to make claims on its citizens that would be controversial in Anglo-Saxon countries. German court decisions, for example, permit government officials to reject parents’ chosen names for their children on a number of grounds, including that the name might subject the child to ridicule or does not clearly indicate the child’s gender. Until recently, military service was compulsory in Germany, although many young men opted out under liberal conscientious-objector laws. Germany also has a registration law, which requires Germans to timely inform their government of any change in address. Germany has comprehensive federal laws regulating everything from the permissible size of huts on garden allotments to the content of vacation contracts, and a sizable contingent of ‘order police’ (the Ordnungsamt) to enforce them. The German legal order does not provide for untrammeled free speech – pro-Nazi rhetoric is illegal, and media which publish insulting or privacy-intruding material may be confiscated and their owners fined.

The flip side of this intrusion is an impressive network of social rights and benefits. Despite recent reforms, German social welfare benefits are still much more generous than their American counterparts — but recipients may also required to submit to intrusive surveillance. Germany has universal health insurance provided by subsidized insurance companies which are run on the principle of ‘solidarity’. Germans receive large welfare subsidies for having children, and enjoy some of the most generous family leave policies in the world. Virtually all higher education is provided free of charge (or for nominal tuition) by government-funded universities. All workers are guaranteed several weeks of paid vacation per year. Even welfare recipients can petition for extra money to pay for a child’s wedding or a vacation.

To put it simply, the German social bargain permits the state to intrude more deeply into citizens’ affairs in certain areas, in return for providing them with an array of services designed to foster personal development and socialize common life-risks. Germans face more subtle pressure to conform to majority social norms, but in return enjoy benefits conferred by that majority itself. This ideology of ‘duties rooted deeply in the culture and community’ may have influenced the German court’s reasoning: Instead of simply endorsing parental autonomy tout court, the judges asked whether the parents’ choice would bind their child closer to the majority ‘culture and community’ of Germany. Because it would not, it was that much easier to second-guess. Yet the reaction to the court’s decision seems to mark a subtle shift in consensus-minded Germany toward accommodating beliefs and rituals which will always remain outside the mainstream.

Zitiervorschlag: Hammel, Andrew: Why the Circumcision Judgment looks so weird to American Eyes, VerfBlog, 2012/9/30, http://www.verfassungsblog.de/why-the-circumsision-judgment-looks-so-wierd/






Andrew Hammel
Andrew Hammel
Andrew Hammel ist Juniorprofessor für Amerikanisches Recht an der Heinrich-Heine-Universität Düsseldorf.

25 Gedanken zu “Why the Circumcision Judgment looks so weird to American Eyes

  1. As a piece of legal analysis, this post would be more interesting if it explored the consequences of the fact that the US constitution does not have an equivalent of art. 2(2) GG.

  2. Your line of argument revolves mainly around the issue of religious freedom and the justification for governmental interference into family matters entrenched in the German legal system.

    I somehow missed your response to the question whether the parents’ religious freedom outweighs the children’s right to physical integrity. From my point of view, this is the key problem in this whole debate and one immensely important argument made by the court in Köln that you didn’t address if I read your article correctly.

    In other words, how do US laws react to the fact that religious circumcision means irreversibly removing a part from a boy’s body without his consent even if it is not medically necessary? True, the government can’t (and better should not try to) avoid all the bad things that parents do their children. But when it is about something as intimate and fundamental as a person’s physical integrity why shouldn’t the government provide legal protection for it, especially for children at a very young age who can’t defend themselves against the wishes of their parents?

    Though, I enjoyed the last part of your article. It never ceases to amaze me how my German compatriots don’t seem to bother that governmental institutions meddle in our private lives to a tremendous extent. It is indeed unbelievably shameful that public officials can bar me from giving my child the name I want. The US criminal justice system is nothing that Germany should try to imitate. But in terms of civil liberties, the US is still a country that German lawmakers can learn from.

  3. It looks weird that “American Eyes” in this case confuse an obiter dictum and a (circumcision) “judgment”.

    And, by the way, the ‘order police’ (the “Ordnungsamt”) does neither enforce the rules on garden allotments nor those to the content of vacation contracts.

  4. @Tim
    I enjoyed the article as well and I read the linked article by Eberle as well. It was kind of an eye-opener on my own political system and how amazing the underlying ideas are.

    Concerning your last statement: In my opinion, there is nothing shameful about public officials barring certain names (and there is no judgement about this in the article anyway). It simply meant to protect the child who cannot speak for itself. Do you want to be named “Hitler”, “Mickey Mouse”, “Garfield” or alike just because your parents think it is cute or whatever?

    I am (in general) pretty happy with the civil liberties I have in Germany.

  5. This is a nice overview of the salient differences between the legal regimes in the U.S. and Germany. I am bit puzzled by the last sentence. Gratifyingly, the executive branch and a majority of lawmakers did step in swiftly to clarify that religiously motivated circumcision is not prohibited, and the majority of constitutional scholars (not only on this web site) and members of the clergy concur.

    Outside of these groups, however, it is difficult to see a “subtle shift … toward accommodating beliefs and rituals which will always remain outside the mainstream”. Instead there appears to be a violent jolt in the general populace towards intolerance and insensitivity, at least if letters to the editor, comments on Internet message boards, and call-in polls following television shows are taken as an indication. And while Muslims outnumber Jews in Germany by at least 40 to 1, nearly all the verbal aggression is being directed at Jews.

    The damage wrought by the Cologne court’s end run around constitutional safeguards against interfering with religion and parental prerogatives is incalculable. It is a textbook example of legislating from the bench. In the U.S., judicial activism has provoked a backlash which is in part responsible for the rise of the Tea Party. In Germany, at least in this instance, there has been an opposite reaction: bigots who previously kept quiet feel emboldened to crawl out of the woodwork and loudly proclaim their hateful views. And I am talking not only about the classic goose-stepping, skinhead haters. The now-widespread notion in German society that parents who have their boys circumcised are abusers practicing a cruel, archaic rite is bizarre and frightening. It’s like waking up and discovering that your neighbors have turned into hostile “pod people” overnight.

    It is possible that after the proposed addition to the law gets enacted, public hysteria will die down and the present ugliness will dissipate. But I’m not betting on it.

  6. Comment #6 above from “C. Bahls MOGiS e.V.” is interesting for the glimpse it affords at one among many vested interests working to keep the “circumcision debate” on the boil.

    A cursory examination (I do not have time for in-depth investigation) reveals that Mogis is an association of and for victims of childhood sexual abuse. Browsing through their website’s recent archives, I found mention of Catholic church scandals, a child-safe Internet, importance of maternal care, and jabs at rival organisations, among other topics, but no mention of circumcision.

    Then in April 2012, we find a news item stating that the people in Mogis had reached the limits of their capacity, coupled with an urgent appeal for donations. The market for charitable contributions is not unlimited and this bore the hallmarks of activist burnout and financial collapse, a frequent occurrence in the field.

    The next item is a launch announcement for a new companion website called Mogis und Freunde.

    Then the Cologne circumcision judgment hit the airwaves. Every single item — a couple dozen on both websites — since that date is on circumcision! Moreover, the focus is almost exclusively on brit milah (the Jewish circumcision rite), not on Muslim circumcisions.

    It is obvious what happened here. This organization (and it is just one of several that all are competing for the same charitable euros) was on life support, barely functioning, and then along came this sudden development like a bolt out of the blue.

    Of course these people jumped on the bandwagon. Of course they noticed that the public was far more excited about what Jews do with their children than what Muslims do. Of course they ran with the story and will keep milking it for every eurocent that it’s worth: it has become their meal ticket.

    And so it goes. We have an unholy alliance of people and organizations determined to ride this sudden phenomenon for as long as it lasts and benefits them, from classic Jew-haters, to so-called ordinary Germans who are glad for the Jews to be on the receiving end of public opprobrium while angrily rejecting that they are antisemitic, to German nationalists, to militant atheists, to physicians’ lobbies currying favor with the public, to inveterate busybodies, to outrage junkies craving their fix, to newspapers hyping sales, to nutcases fearing that they or their sons will be forcibly circumcised next, and I could easily go on.

    The level of public attention is out of all proportion to the underlying issue, regardless of one’s personal views on circumcision. (No sane person could argue that circumcision is ten times more important than, e.g., the momentous decisions being taken on the European stage with regards to fiscal union and the future of the euro.) A noxious mix of mass hysteria and vested interests has poisoned the public space. And the people keeping this on the boil will not go away any time soon.

  7. (Note to VB admin staff: I just found out that the website part of the randomly typed fake e-mail address that I had previously given actually exists. So from now on my posts will include a functioning address that redirects to my personal e-mail. Feel free to delete this after reading.)

  8. Nochmal VB admin stuff: Kann mir bitte einer ein Bier raus an den Pool bringen? Danke!

  9. ^^
    Very funny, but the above comment is not by me. Easy to check if you can see the IP numbers of commenters.

  10. In my opinion, no circumcision should be allowed without the consent of the person concerned unless there are serious medical reasons.

    The foreskin is one of the most sensitive parts of the human body and its removal has a serious influence on the sexual life. The decision of its removal affecting hence the most private sphere of each individual should be taken by the respective individual only.

    In addition, “tradition” is never a valid justification for anything. Every measure needs to be justifiable based on the situation nowadays.

  11. Nightknight, nothing wrong with holding the opinion you do (circumcision only with express consent of the boy or man himself). Tradition, of course, is something that every generation interprets in its own way, renewing or discarding the customs handed down through the ages. In that sense, circumcision is indeed “justifiable based on the situation nowadays”, as long as every new generation affirms the relevance of the ritual for themselves. The reasons may be different and not necessarily only, or primarily, religious: even completely secular Jews may uphold the tradition, and presumably this is similar in the case of Muslims.

    No, the question is this: Are you prepared to take away the sons of Muslim and Jewish parents on the seventh day after birth and keep them in protective custody until they turn 18 as a preventive measure? Alternatively, will you throw Muslim and Jewish parents into jail because they had their son circumcised, and will you make their boys show up for periodic inspections in a government office to prove they still have intact foreskins? Have you thought about the consequences of criminalizing religiously motivated circumcisions, as you apparently want to do?

    Previously on this web site, we heard from Dr. Swatek-Evenstein that the Jewish circumcision rite was firmly anchored in the legal regime of the Weimar Republic. The Grundgesetz is of course in many respects a continuation of the Weimar Reichsverfassung and its drafters were well aware of the existence of Jewish circumcision.

    The present article by Prof. Hammel sheds light on the cultural (as well as legal) differences between Germany and the U.S.

    While some aspects of this difference are humorous (a Bundeskleingartengesetz? why not a Bundesgartenzwerggesetz, too?), others should give you pause. Is it not perhaps time for Germans to examine their cultural conditioning with a critical eye? Must the pressure to conform really be so great? Is the knee-jerk reflex to outlaw whatever offends the majority really indispensable? And when will Germans confront the resurgence of antisemitism in their midst?

  12. While waiting for my two longish comments to make it through the spam filter, may I make a suggestion? All the articles on the circumcision controversy that appeared on Verfassungsblog have been of very high quality. How about collecting them in a book and publishing it?

    The proceeds from the book’s sales could then be used to upgrade VB’s commenting system, with registration of user accounts, perhaps also integration with a scheme such as Mozilla’s Persona.

    (Again, feel free to delete this after reading.)

  13. Den Vorwurf des Antisemitismus kann ich so überhaupt nicht nachvollziehen. Vielmehr scheint mir der aktuelle Diskurs von einer sehr religionskritischen Seite geprägt. Die Leute sind nicht zwangsläufig Atheisten, wenden sich aber gegen die Sonderrechte von Religionsgemeinschaften (Kündigung einer lesbischen Erzieherin oder Kündigung eines geschiedenen Chefarztes und was da so alles in den letzten Monaten durch die Presse ging). Und ich muss gestehen, wenn ich den link von meteor lese, dann bekomme ich auch so meine Bauchschmerzen, was Eltern und Religionsgemeinschaften so alles dürfen.

  14. noram, you claim to know which reasons “the Germans” really have in disapproving boy child circumcision. You see a “cultural conditioning” and a “pressure to conform”.
    Did you ever consider these assumptions being wrong?
    Lets put religion aside for a few seconds. Because religion is an absolutely subordinate aspect to the question at hand.

    The real base of the question is the balance between the rights of the parents and the rights of the child, is it not?
    I dare to suppose that there are possible decisions taken by parents for their children and forced upon these children, for which parents would certainly go into jail even in the U.S., and presumably in most other american nations as well. The extreme example would be parents deciding (with best faith) that it would be best for their children to not continue living.
    There are countless possible examples: Parents believing their kids might look cute with tattoos; parents convinced their kids will have a better live when sterilised as early as possible; parents wanting their kids to have a real fancy haircut; etc.
    The real important question in this discussion is: where is the limit to parental freedom? Is there a limit?

    In my personal view we arrive at this limit when it comes to deliberately and permanently change the children’s body by surgery (or similar means). I do not say the limit is crossed already, but it may be. We might still have to consider the objective reasons for the proposed surgery.

    And let me stress again: All this has absolutely _nothing_ to do with religions of any kind.

    P.S.: It might escape your notice but a lot of germans oppose anti-Semitism in their own country.

  15. Kai:

    You are entitled to your personal views. You are not entitled to force your personal views on a minority, not even if 80 percent of your fellow citizens agree with you. There are
    constitutional safeguards against “tyranny of the majority” and the judgment in Cologne ignored them.

    Antisemitism in Germany used to be the hatred that dare not speak its name. It has come out of the closet and become a popular pastime.

    Read all the comments on this article and pay special attention to how many upvotes and
    downvotes each one gets:

    http://nachrichten.t-online.de/aerzte-warnen-vor-folgen-von-beschneidung-bei-jungen/id_59484834/index

    Just one of countless recent examples.

    In my opinion the state has no right to interfere with the parent-child relationship unless
    there is a clear and present danger to the child. Generally the state makes for a poorer
    parent than the natural parent. Horrific physical, sexual and emotional abuses committed in
    state orphanages and by foster parents selected by the state are well documented. As always,
    the law of unintended consequences applies: what you welcome today may come back to bite you in the butt. You should assume that the powers you grant to the state can, and will, be used against you in the future.

    The U.S. is not exempt from going wrong, either. Witness this
    California law on outlawing “sexual correction” therapy and the hapless attempts of a law
    professor to justify it
    . Such a blanket ban is unjustified interference by the state.

    Incidentally it would be nice if Prof. Hammel could find the time to participate in the discussion, most other authors on Verfassungsblog do.

  16. I think antisemitism is a serious problem in germany and many people use the debate on circumsision as a pretext – and as a tool for breaking the still existing taboo – for antisemitic hate speech. However, awareness for this wont answer kais question: “where is the limit to parental freedom?”
    There is not only the danger of a tyranny of the majority, there is also the danger of a private tyranny. Most cases of sexual child abuse do not happen in state orphanages but in the family.

  17. I have to say that I don’t appreciate having my side (I guess) automatically painted as antisemites. That is an outrageous accusation to make of a person.

  18. Der Blogeintrag, für den es offenbar bei der Beschneidung nur einen (amerikanischen) “liberalen” und einen (deutschen) autoritär-fürsorglichen Ansatz gibt, geht voll am Thema vorbei, wie “Tim” schon bemerkte.
    Problematisch ist m. E. nicht, dass er im Ergebnis dem Staat nahezu nichts, den Eltern nahezu alles erlauben will und das Kind nicht als eigenen Träger von Rechten wahrnimmt. Problematisch ist vielmehr, dass er das Verhältnis Kind-Eltern-Staat von vornherein nicht als Dreiecksverhältnis in den Blick bekommt. Entsprechend abwegig sind die Vergleiche zu Kindergeld, Reiseverträgen usw.

  19. It helps to recall that this “sudden development” in Germany started because a 4-year-old Muslim boy suffered serious complications after his circumcision. Unfortunately, it seems that serious incidents are needed before people think twice about harmful traditions. In Norway the debate was ignited by the circumcision death of a two-week old baby in May 2012.
    In Egypt, FGM was banned in 2007, after the death of a 12-year-old girl became public. Now FGM rates are thankfully decreasing although still the majority of girls have to undergo the procedure. Interestingly, in the “free US”, the “ritual nick” on girls is illegal, although it is harmless compared to male circumcision. This shows that the view on circumcision in the US has nothing to do with their higher priority of “freedom”. It is simply because they are used to it.

  20. Back to the law argument: IMO a difference is not so much that the American Constitution doesn’t have the equivalent of Article 2, section 2, of the German Basic Law (Grundgesetz), which ensures freedom and bodily integrity.

    In fact, with respect to freedom, this is contained in the Fifth Amendment literally “nor be deprived of life, liberty, or property, without due process of law” (and Fourteenth, with effect to the States). However, bodily integrity should probably be protected too, by the due process clause, as the Ninth Amendment explicitly states that the enumeration of rights in the Bill of Rights isn’t meant exclude other (unenumerated) rights. In that light, the Fifth and Fourteenth Amendment probably include bodily integrity among their substantive due process guarantees.

    However, I see a real difference in effect: The German constitution (as well as, for example, the European Convention on Human Rights, according to the case law of the ECtHR) asserts the human (basic) rights not only as a protection from government interference (classical interpretation), but also as a value system (BVerfGE 7, 198 – Lüth) and requires all branches of government not only to not interfere with the rights (except when justified), but also to protect them.

    As far as I understand, the American Constitution still employs a more classical interpretation of human rights as a defence against government interference, leaving more room for decision in how far the government wants to protect citizens from one another.

  21. Noram, I am sorry for the late replay, but I was unable to comment earlier.

    Let me state clearly that in my opinion and in my interpretation of the German constitution, there is absolutely no room for preventive measures like “[taking] away the sons of Muslim and Jewish parents on the seventh day after birth” or “periodic inspections in a government office”. Measures like this would be the sign of a totalitarian system I do not want to live in. We had systems like this already two times in the recent history and there is absolutely no need for a third one. In my opinion, the simple assumption people do not obey the law just because they are members of certain religious groups would be racism.

    Concerning the “pressure to conform” and the differences between Germany and the US: As nicely laid out by Eberle in the linked article, the US constitution is centered around the idea of freedom FROM the government, while the German constitution is centered around the idea of human dignity. According to the article this results in the idea of freedom WITH the government. I do not see that this constitutes a “pressure to conform” and for me this has nothing to do with “[outlawing] whatever offends the majority”. The concept of human dignity and its strong emphasis in our constitution is the consequence of an incredibly inhuman system and up to now it has served pretty well.

    Moving to “tradition”: There are many traditions laid down in the Torah, the Bible or the Quran which have been abandoned for very good reasons. They were justified in the time of their introduction, but the reason for their introduction has faded away with time and the further development of our society. So for every tradition we have to ask us, what has been the reason for its introduction and does this reason still hold today. Just because it is written “God said” in front of does not make it a valid argument as this is also the case in many other rules which are no longer applied.

    In my personal opinion, the benchmark for rules should be always human dignity. You may call it as well “categorical imperative” or “love of men” in the sense of the famous saying of Hillel the Elder, it does not make a difference. The foreskin is *not* just a useless piece of skin, but the most sensitive part of the male body. Based on this, circumcision should only take place with the mature consent of the person concerned. Otherwise you might destroy a soul!

    What is your personal benchmark for keeping or abandoning religious rules?

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