Eugene Kontorovich has an interesting and, to my mind, in portions persuasive comment on the Council of Europe’s new recommendation that nations should consider banning circumcision. I say this as someone who disagrees with Professor Kontorovich about the constitutional merits of the test laid out in Employment Division v. Smith. Indeed, as I have written before, there is a largely unfounded optimism in the wisdom and good will of democratic majorities that is presumed in the approach of Smith–a presumption that is borne out beautifully when the majority is with you, but less well when it turns against you. An aristocratic (in the Tocquevillian sense) buffer (see the judiciary) on the moral certitudes of popular, democratic fancy is a healthful thing, particularly when it serves to remind the people of its fundamental, deeply rooted, political traditions.

That is why I have some questions about the first half of Professor Kontorovich’s comment, and it is also the reason that though I sympathize with the final line of his post, I find that the Smith approach is likely to make things much worse. But the second half seems right on target to me. A bit:

Yet from a broader perspective, such measures are [an] historic, epochal, dizzying step backward for religious liberty. They are illiberal and intolerant in the deep sense. Jews have been allowed to fully practice their religion on the Continent since even before the Enlightenment (though subject to other restrictions). Now, at the time of the supposed greatest openness and freedom, the end of religious wars, the central Jewish rite would be banned.

It requires an extraordinary moral certitude to conclude that one established the evil of a universal normative practice of the oldest monotheistic religion, a practice that Europeans, including anti-Semites, have tolerated for as long as Jews have been there. Burkeans they are not, at the Council of Europe.

This represents a massive failure of the liberal imagination. Tolerance requires, perhaps more important than legal restraints, habits of the mind. All religious practices seem odd and bizarre to outsiders. Tolerance requires understanding the importance of these practices to the practitioner – a lack of total certitude . . . .

Indeed, the new European conscience might find circumcision repugnant, but certainly not as repugnant as Protestants and Catholics in Europe for centuries regarded each other’s practices. Yet for over 300 years, they have been able to live and worship fully in each other’s countries. On this backdrop, anti-circumcision legislation shows how far back we have gone while making progress.

It seems that such laws are a product less of an anti-Semitic mind-set than an anti-religious one, in which a practice that seems odd is more likely to be barbaric if it is a religious rite. Today’s secularism may be less forgiving than yesterday’s pietism. . . .

There are important lessons for the U.S. Religious freedom depends in many ways on the tolerance of the majority, if one thinks as I do that Employment Division v. Smith was rightly decided. That tolerance has long existed, more or less, in a predominantly Protestant America, a Christian America, and a simply religious America. But it is not guaranteed.