Around the Web

Here are some important law-and-religion news stories from around the web:

Animal Rights Trump Religious Rights

The Great Synagogue, Copenhagen

Something is rotten in the state of Denmark.

The World Jewish Congress reported late last week that the Danish Minister of Food and Agriculture, a 38 year old Social Democrat named Dan Jorgensen, had signed a regulation effectively banning the Jewish ritual slaughter of animals for food. Jorgensen explained the ban on Danish television by saying “animal rights come before religion” – or, according to another translation, “animal rights precede religious rights.”

Under the new regulation, all animal slaughter must be carried out after stunning, which is contrary to the Jewish practice of shechita, or ritual slaughter. Denmark’s Jewish community (which numbers a mere 6,000 persons) opposes the minister’s decision. The European Commissioner on Health, Tonio Borg, questioned the legality of the ban, saying that it “contradicts European law.” On the other hand, Jorgensen’s decision was acclaimed by the Animal Welfare Intergroup, of which he had been President.

If the Danish government and parliament let the decision stand, Denmark will join several other western European nations, including Norway, Sweden, Iceland, Poland and Switzerland in prohibiting such ritual slaughter. (Holland had attempted to ban shechita, but a Read more

Christians and Circumcision

My post last week about a movement in Scandinavia to ban the non-therapeutic circumcision of boys drew many comments. I’d like to respond to one of them. At Patheos, Joel Willitts criticizes Christians, like me, who oppose such bans. Willitts suggests that we are being inconsistent, perhaps even hypocritical. “The Christian tradition has little high ground on which to stand when it comes to the issue of banning Jewish practices,” he writes. After all, the “Gentile church” has prohibited circumcision for millennia as part of its “supersessionistic theology.” Who are Christians to criticize others when they, too, seek to end the practice?

I’m not a theologian, and I’m a little confused by the references to the “Gentile church” and “supersessionistic theology.” I think Willits is  alluding to debates about Messianic Judaism. But it’s not necessary to get deeply into theology to explain why his criticism of my position is misguided.

First, it’s not correct to say that Christianity bans circumcision. It’s true that Christianity rejects ritual circumcision. From the apostolic period until today, Christians have regarded baptism as the substitute for ritual circumcision–the sign of what Christians believe to be the New Covenant. Continuing to circumcise boys out of a sense of religious obligation, Christians believe, would be a category error. The Old Covenant has been fulfilled; why continue to observe its rituals? But circumcision for non-religious reasons is different. If, for example, the best medical learning is that boys should be circumcised for reasons of hygiene, Christianity does not oppose this. With respect to circumcisions carried out for non-religious reasons, Christianity is simply neutral.

Second, even if Christians reject ritual circumcision for themselves on theological grounds, they can still object in good faith to proposals that the state ban it for others. Christians do not build sukkot, either; but Christians can object to proposals that the state prohibit Jews from building them. Unlike the church, the liberal state is supposed to be neutral about such things. Christians who object to proposals to ban practices other religions hold sacred are not being inconsistent or hypocritical. They are holding liberalism to its deepest commitments, and showing respect for  traditions other than their own.

Kontorovich on the Council of Europe’s New Recommendation to Ban Circumcision

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.

Heimbach-Steins on the German Circumcision Case

In May 2012, a regional court in Cologne ruled that the circumcision of a boy, carried out for religious reasons, qualified as a crime under German law. The court reasoned that the child’s right to physical integrity trumps religious and parental rights—a decision that greatly concerned Germany’s Jewish and Muslim communities. The decision is available in German here and in English in an official and abbreviated version here.

In December 2012,  the ReligioWest project at the European University Institute sponsored a lecture by Marianne Heimbach-Steins (Institut für Christliche Sozialwissenschaften- Universität Münster) on the decision and the general topic. She has now published the paper for ReligioWest. Here’s the abstract:

In May 2012, a German court in Cologne ruled that circumcising young boys represents grievous bodily harm. This decision, which touched upon the questions of freedom of religious practice, identity and children’s rights, was condemned by Jewish and Muslim representatives in Germany, but it was also widely and controversially debated by civil society and politicians. The German Parliament recently passed legislation protecting circumcision as a religious practice, but the debate is likely to continue. In this paper, Marianne Heimbach-Steins, director of the department of Christian Social Ethics at the University of Münster (Germany), discuss this case and its implications for the definition  of religious freedom.

Her working paper can be downloaded here.

Funny, They Never Thought of That

Something’s definitely going on in Europe. When a German court ruled recently that a doctor who performed a circumcision on a male child for religious reasons could be criminally liable, most Americans thought the ruling was an aberration. But then, as my colleague Marc writes,  it turned out that that certain hospitals in Austria and Switzerland had suspended the practice out of a concern for criminal liability. Now, according to a story in Haaretz, Norway’s children’s-rights ombudsperson, Dr. Anne Lindboe, has helpfully proposed that Jews and Muslims in her country replace circumcision with a nonsurgical, symbolic alternative. Circumcising infant boys — at eight days, for Jews, and around seven years, typically, for Muslims — violates their rights, Dr. Lindboe argues, and causes unnecessary pain. Dr. Lindboe did not herself attempt to devise a new ritual for Jews and Muslims; she doubtless believed that respect for religious freedom counseled letting them come up with their own alternatives. At least for now. (H/T: Religion Clause).

Swiss and Austrian Hospitals Suspend Non-Medically Necessary Circumcisions

Here’s a story which reports that certain Swiss and Austrian hospitals have suspended circumcision in situations where the procedure is not medically necessary.  They have taken these steps allegedly because of the legal uncertainty of circumcision after a German court held the practice to be the equivalent of a criminal assault.  That particular reason seems strange to me, since Switzerland and Austria are not under German jurisdiction.  But that’s the reason they give.  From the story:

A group of Orthodox rabbis warned on Wednesday that the ancient Jewish practice of infant male circumcision could face further restrictions in Europe after some hospitals in Austria and Switzerland suspended the procedure by citing a German court ruling that it could amount to criminal bodily harm.

Last month’s verdict by a regional court in Cologne did not ban circumcision, but it prompted angry protests from Jewish and Muslims groups, especially after the German Medical Association advised doctors not to perform unnecessary circumcisions until the legal situation was clarified – something Germany‘s government has pledged to do soon.

Two weeks ago, a hospital in Zurich also suspended circumcisions, saying it wanted to investigate public concerns about the procedure, which involves cutting off a boy’s foreskin. Anti-circumcision campaigners say the act breaches the child’s right to bodily integrity, while faith groups insist it is part of their religious freedom.

“We in Switzerland aren’t directly affected by the Cologne ruling, but it sparked a debate about how to deal with the medical and ethical issues involved,” said Marco Stuecheli, a spokesman for Zurich’s Children‘s Hospital.

On Tuesday, the governor of Vorarlberg province in Austria told state-run hospitals to stop circumcisions except for health reasons until the legal situation was clarified. He said the German decision, which arose from the case of a child whose circumcision led to medical complications, was a “precedence-setting judgment.”

German Parliament Resolves to Keep Circumcision Legal

Germany’s lower house of parliament has adopted a resolution calling on the government to keep male circumcision legal in that country. The resolution responds to a regional court’s ruling last month that doctors who perform circumcisions on boys for religious reasons could be prosecuted under German law and requests that the government submit a bill this fall. Jewish and Muslim groups in Germany have united to oppose the court’s ruling — impressive what a common threat can do, isn’t it? — though, according to polls, Germans narrowly support a ban on circumcisions.

Circumcision Controversies

A couple of weeks ago, Ron Colombo posted about a German regional court’s ruling that the circumcision of an infant boy,  requested by the boy’s parents for religious reasons, qualifies as a crime under German law. An English translation of the case is now available. A Muslim doctor circumcised a four-year old boy at the request of his parents, who wished to comply with Islamic law. German prosecutors charged the doctor with the crime of physically mistreating another person, but the trial court acquitted him. On appeal, the Cologne Regional Court held that, although the doctor was excused by reason of mistake, he had nonetheless committed a crime. Circumcision in these circumstances violates the child’s right to bodily integrity, the court held, and his right to decide for himself whether to be circumcised when he reaches adulthood. In the court’s words, “Circumcision for the purpose of religious upbringing constitutes a violation of physical integrity, and if it is actually necessary, it is at all events unreasonable.”

Although the court’s ruling obviously affects Muslims in Germany, it affects Jews as well, who, like Muslims, hold circumcision to be a religious obligation. Indeed, the Conference of European Rabbis has called an emergency meeting in Berlin this week to decide how to respond to the ruling. Meanwhile, religious circumcision is also causing a controversy here in New York. In a version of the circumcision ritual used by ultra-Orthodox Jews, the “metzitzah b’peh,” the person who performs the circumcision must suck the resulting blood from the infant’s circumcised penis. This action potentially exposes the infant to a fatal herpes infection — though some doctors discount the risk –and the New York City Board of Health has proposed a new regulation requiring that parents consent in writing before a metzizah b’peh is performed. A hearing on the proposed regulation will take place later this month.

California Senate Committee Approves Bill Blocking Future Efforts to Ban Circumcision

The Washington Post reports that a California Senate Judiciary Committee unanimously has approved a bill that would prevent local jurisdictions from banning circumcision.  The committee action was in response to San Francisco’s effort to ban circumcision without exception for religious practice or parental choice. (For more on the proposed ban in San Francisco, please see my earlier comment).  The bill, expected to go before the Senate soon, proposes that circumcision, as a medical procedure, is a statewide concern that may not be regulated at the local level.  If approved by the Senate, the bill would leave the circumcision decision up to the parents. The bill would also eliminate any possibility that the district court’s decision to remove the ban from San Francisco’s November ballot might be overturned on appeal. –YAH