Thursday, 28 June 2012

Clash over religious freedom in Germany as Cologne court ruling outlaws circumcision

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A court in the German city of Cologne has ruled that
religious circumcision violates the "physical
integrity"of the child
Jewish and Muslim organisations in Germany have responded with outrage after a Regional Court in Cologne ruled that circumcision of infant boys for religious reasons constitutes "bodily harm" and "a violation of physical integrity" which is not outweighed by the parents' "right to religious upbringing of their children".

The ruling concerned the case of a four-year-old Muslim boy who suffered medical complications following a circumcision carried out at the request of his parents in November 2010. The doctor who performed the operation was charged by state prosecutors, but was acquitted when a lower court ruled that he had not acted improperly. The court also ruled that circumcision was in the child's interests as part of his membership of the Islamic faith.

The prosecution appealed to the higher Regional Court, which upheld the doctor's acquittal but ruled against the practice of circumcision for religious reasons. According to an informative post by Adam Wagner on the UK Human Rights Blog (which also provides an English translation of the ruling), the court upheld the acquittal on the basis that the doctor was acting under an “unavoidable mistake of law”, and went on to declare that, in the case of circumcision, religious freedom does not take precedence over a child's right to "physical integrity". Circumcision, the ruling states, leaves the child's body "permanently and irreparably changed", and therefore "conflicts with the child's interest of later being able to make his own decision on his religious affiliation".

Reacting to the ruling, Dieter Graumann, President of Germany’s Central Council of Jews, described it as “outrageous and insensitive” and an “unprecedented and dramatic intervention in the right of religious communities to self-determination”. The news also prompted outrage in Israel, with the speaker of Knesset, Reuven Rivlin, calling on German legislators to act to overrule the court's "intervention in freedom of religion and worship". Having met with Rivlin, the Bundestag President, Norbert Lammert, suggested that the ruling may yet be overturned by Germany's highest Constitutional Court, saying “The German court has yet to say its final word on this matter”.

Objections from within Germany and Israel were also echoed by the Anti-Defamation League, the US-based international body that campaigns against anti-Semitism. In a statement, its director, Abraham Foxman, said:
“Circumcision of newborn male children is a core religious rite of Judaism, practiced by Jews around the world. The decision by a district court in Cologne, Germany, to deem non-medical circumcision a crime places an intolerable burden on the free exercise of religion by Jews and also by Muslims who practice male circumcision as part of their religious faith.

We support the call by the Central Council of Jews in Germany for the German parliament to quickly pass legislation specifically protecting circumcision as a religious practice. Germany’s commitment to religious freedom requires nothing less.”
The ruling against circumcision has raised similar objections from within Germany's Muslim communities, with Aiman Mazyek of the Central Council of Muslims describing it as “inadmissible” and “outrageous".

Since news of the judgement appeared in the UK media yesterday, it's been interesting to follow how secularists and humanists have reacted, and consider my own views on the issue. On the one hand, from a secular perspective the case seems fairly straightforward – of course children shouldn't be subjected to the removal of a part of their genitals (many would call this "mutilation") without their consent, in an operation which can on occasion prove dangerous and even life-threatening, simply because their parents consider it to be a key requirement of their religion. Observing the reactions of fellow humanists online, there seems to be something of a consensus on this, with many welcoming the ruling as a victory for common sense.

One particularly thoughtful articulation of this viewpoint came from Andrew Copson, chief executive of the British Humanist Association, who in a post on his personal blog "Don’t cut bits off people without their informed consent" makes "a good general ethical principle". Copson acknowledged the difficulties that come with the state intervening in a religious practice steeped in tradition, and noted that we should be sympathetic towards the significance that many Jews and Muslims place on circumcision, but concluded that such considerations "are not enough to outweigh the ethical case for a total ban on genital mutilation of either boys or girls".

However, opposing such arguments in favour of a ban are arguments concerning religious freedom and, while the court in Cologne concluded that the rights of the child ought to take precedence over the parents' religious freedom in the case of circumcision, it would be wrong to discount those arguments, or indeed the pragmatic social and cultural arguments against a ban. In doing so, it's impossible to escape the burden of history – while a 21st-century legal case over circumcision may well be driven purely by medical and human rights considerations, there is no avoiding the fact that the outlawing of religious practices has historically been associated with religious persecution. In Germany, of course, such bans carry horrendous historical baggage, and many will surely be uncomfortable with seeing a German court making a judgement that could lead to the outlawing of a practice so closely associated with Jewish identity. This isn't to say, of course, that such history should be used as a debate-stopping reason for not taking action against religious practices that might be seen to violate human rights but, thinking pragmatically, it's an unavoidable consideration.

So do I think religious circumcision should be banned? You'll have to forgive the equivocation, but I'm not sure. Watching the German case from a distance, I find it hard to disagree with the court's reasoning, as I agree that the religious freedom of parents should not trump a child's right not to have their genitals altered in infancy. My thinking on religious freedom has been influenced recently by Kenan Malik's excellent 18-point guide in our new issue (do click the link and read it – I highly recommend it), and, reading that with this in mind, it seems clear that circumcision should come under the category of religious practices that should not be permitted:
"As a society we should tolerate as far as is possible the desire of people to live according to their conscience. But that toleration ends when someone acting upon his or her conscience causes harm to another without consent, or infringes another’s genuine rights."
However, when I consider the possible social consequences of a ban on circumcision, in particular its possible effect on the relationship between Jewish and Muslim communities and the rest of society, I find that I am less convinced of the wisdom of enforcing it. There's no denying that the ruling by the Cologne court is a bold one, and perhaps such bold decisions are necessary to enable societies to finally move on from what many would consider to be antiquated and harmful practices. But if a ban on circumcision was passed here in the UK, I think I would be uncomfortable with the social implications it could have.

This is an issue that's going to run and run, and as it happens we have a piece lined up in our next issue (Sept/Oct) on the debate around circumcision here in Britain. With the news from Germany, there will be plenty to discuss in that, so watch this space.

In the meantime, please share your comments – do you agree with the decision by the Cologne court to outlaw circumcision? Here's a poll for you to register your view:

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