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Published online by Cambridge University Press: 06 March 2019
A four-year-old Muslim boy was brought to a local Cologne emergency room by his mother, who was concerned about minor bleeding around the site of a circumcision. A District Court there found that circumcision, notwithstanding parental consent or religious motivation, constituted a criminal bodily injury and child abuse. Ultimately, on July 19, 2012 the Bundestag resolved that “Jewish and Muslim religious life be viable in Germany,” and in December a bill was passed that legislatively overrode the ruling of the District Court and recognized circumcision as a non-punishable undertaking when undertaken for religious reasons by someone professionally trained. Two years of rancorous debate revealed a whole range of historical and contemporary fissures. This essay examines the dynamics of the debate and its various outcomes. In particular it asks whether the conflicts generated by practices like male circumcision can in immigrant societies be assimilated to prevailing religious freedom models. The key questions aired were: (1) Germany's relations with its Muslim immigrants; (2) Germany's relations with its fragile Jewish minority; (3) proper weightings of the relationship among parents, child, and state; and (4) the deference owed medical thinking. Immigrant integration, religious freedom, group rights, and the meaning of “enlightenment” all remain sharply contested.
1 Cecile Laborde thus coined the term “Catho-laïque” to describe the Christian assumptions underlying the constitutionalism of utterly secular France. See Cecile laborde, Critical Republicanism: The Hijab Controversy and Political Philosophy (2008).Google Scholar
2 It does, however, belong to the heated atmosphere of recent times that anxieties about being overwhelmed by sharia law or the like have gained real traction, not only in places like the Visegrad countries where demagogy is the coin of the political realm but also in firmly established constitutional democracies like Germany, Scandinavia, Canada, and the U.S.Google Scholar
3 See, e.g., Judd, Robin, Contested Rituals: Circumcision, Kosher Butchering, and Jewish Political Life in Germany, 1843–1933 (2007).Google Scholar
4 The circumcision was performed by an experienced, German-trained and licensed Syrian-German surgeon, Dr Omar Keeze, to whom the family had been referred and who charged the going rate of €250. The procedure had been done two days earlier, and Keeze had made a routine housecall that evening to treat the site. The family had a further check-in appointment with him scheduled for later that same Saturday. See Musharbash, Yassin, Die Operation war einwandfrei, Die Zeit (July 20, 2012), at 8. For other recounts of details, see Bijan Fateh-Moghedan, Criminalizing Male Circumcision? Case Note: Landegericht Köln, Judgment of 7 May 2012, 13 German L.J. 1131 (2012).Google Scholar
5 Whether calling the police was an obvious or reasonable response is difficult to reconstruct. The mother's German was weak: She apparently did not know the word for “scalpel” and said the procedure had been done with “scissors.” She erroneously answered “no” when asked if there had been anaesthesia. For his part, the on-call doctor's notes reported “normal range bleeding” but remarked that it had not been a good job and that the number of stitches had not been adequate. Later, at trial, he withdrew those accusations, though one can't know why.Google Scholar
6 Amtsgericht Köln, 528 Ds 30/11 (citing BGB §1627 as exercise of parental custody, best interests of the child). The concept of Sozialadäquanz is not easily rendered in English. The respective constitutional provisions on parenting (Art 6, §2), religious exercise (Art 4, §§ 1-2), and bodily integrity (Art 2) are discussed below. It is characteristic of most “anti” literature that it begins graphically, sometimes luridly; this is also true in abortion debates.Google Scholar
7 LG Köln, Urt. V. 7.5.2012– 151Ns 169/11 (finding a violation of criminal code StGB §224(2), “causing grievous bodily harm using a dangerous instrument” and stating that “[t]he child's body is permanently and irreparably changed by the circumcision. This change conflicts with the child's [protected] interest of later being able to make his own decision …”). Article 2, §2 of the Constitution guarantees that “Every person shall have the right to life and physical integrity.” Still, the doctor was himself cleared as under German law he could not have been expected to know of the subsequent finding of illegality (Verbotsirrtum). See Strafgesetzbuch [StGB] [Penal Code], §17. Such a finding is not available under U.S. law.Google Scholar
8 In particular, Professors Rolf Dieter Herzberg and Holm Putzke. Scholarly treatises are much more important to judicial opinions in Germany than is the case in the U.S. Although not an engaged activist in this controversy, the best statement of the ultimately Kantian foundation of the “autonomous self-determination” limitation on parental rights and religious practices is found in Christoph Enders, “Recht ist was allgemein ist,” Die Verfassung Als Aufgabe Von Wissenschaft, Praxis Und Őffentlichkeit 299–304 (Jakob Nolte, Ralf Poscher, & Henner Wolter, eds., 2014).Google Scholar
9 CDU Program quoted in Alfred Bodenheimer, Haut Ab! Die Juden in der Beschneidungsdebatte 15 (2012); Gauland 18 September 2017, https://www.msn.com/de-de/finanzen/top-stories/gauland-islam-geh%C3%B6rt-nicht-zu-deutschland/vp-AAs8Fgi.Google Scholar
10 It should be noted that debates about circumcision are almost always rancorous and acrimonious. In the U.S., otherwise staid and even boring business law professors can turn lurid and violent on the subject. A good example is Geoffrey Miller. See Miller, Geoffrey, Circumcision: Cultural-Legal Analysis, 9 Va. J. Soc. Pol'y & L. 497 (2002).Google Scholar
11 One might ask what the analogue is for Jewish females, but I shall not do so here. The question has been addressed. See Cohen, Shaye, Why Aren't Jewish Women Circumcised?: Gender and Covenant in Judaism 143–90 (2005). Cohen argues both that Judaism was thoroughly patriarchal and less attentive to women and that circumcision was meant to bring men down a notch and also bind them to the Lord.Google Scholar
12 Judd, supra note 3.Google Scholar
13 Some unknown portion of the German population is fed up with these taboos and would like to act out. But these taboos are very strong and carry other features of the postwar settlement with them, such as a pro-American orientation, anti-racism, etc. It is not impossible, it seems to me, that some of the itch to break the taboo is acted out on toward Muslim immigrants instead. One recalls the controversy begun in October 1998 when novelist Martin Walser unleashed a furor from the pulpit of the Paulskirche. Walser lamented that Germany continued to be constrained and extorted through its Holocaust guilt, a “moral cudgel” used—one wonders by whom?—to hold down the German people. Specifically, he condemned the “instrumentalization of Auschwitz” for contemporary purposes as “a permanent exhibit of our shame.” One must consider, is learning from history an “instrumentalization” of history? Is the past “unusable,” an equally problematic and incapacitating proposition?Google Scholar
14 Marlene Rupprecht & Irmingard Schewe-Gerigk, respectively, quoted and characterized by Volker Heins. See Heins, Volker, Der Skandal der Vielfalt 152–53 (2013). Impressionistically, it seems that women are more outspoken on this question than men.Google Scholar
15 Jewish practice is quite uniform in requiring circumcision 8 days after birth, barring extraordinary circumstances; Genesis 17:10-14, reaffirmed in Joshua 5:2-4. See Silverman, Eric, From Abraham to America: A History of Jewish Circumcision (2006). Circumcision was abandoned by the Christians as part of their focus on faith in Christ and their decision to appeal to heathens and Hellenists, Acts 15:19; Romans 1:25-29. Muslim practice varies, and the procedure is generally allowed anytime pre-puberty. Since the practice is not itself Koranic but comes from the hadîth (sayings of the Prophet), there is considerable variation in the timing and details by country, class, and sect; Paul Clotter, Die Beschneidung in Islam, 23 Cibedo-Texte 6 (1983). Clotter goes so far as to say that, despite its cultural centrality, circumcision itself has “no religious significance or canonical mandate.” Rather, “since all of social life is molded by Islam, a relatively important ritual like circumcision necessarily takes on a religious dimension.” Id. at 11. Still, it is a practice of Muslims rather than of Islam, a matter of community identity.Google Scholar
16 See also Grundgesetz [GG] [Basic Law] art. 5, §1; Bürgerliches Gesetzbuch [BGB] [Civil Code], §§ 1601–15, 1631 (laying out the responsibilities of parents and children for one another. The District Court found circumcision a “disproportionate” exercise of the parental right to religious education of children.).Google Scholar
17 The case of the Romeikes, supported by Christian home schooling lobbies (such as the Home Schooling Legal Defense Fund) in the U.S., drew worldwide attention. See, e.g., German Home-School Family Will Not Be Deported from US, BBC News (Mar. 5, 2014), http://www.bbc.com/news/world-us-canada-26454988 (last visited Oct. 31, 2017); Friday's ‘Hot Topics: Cool Talk’ Forum Asks: Should German Home-Schoolers be Granted Asylum in U.S.?, Univ. of St. Thomas (Nov. 23, 202), http://www.stthomas.edu/news/hot-topics-cool-talk-german-home-schoolers; Jane O'Brien, German Home-School Families Face US Deportation, BBC News (Nov. 6, 2013), http://www.bbc.com/news/business-24804804 (last visited Oct. 31, 2017).Google Scholar
18 See Pierce v. Society of Sisters, 268 U.S. 510 (1925) (requiring public schooling of children violated parental liberty to direct education of their children); Meyer v. Nebraska, 262 U.S. 390 (1923) (noting that public interest in younger children being educated in English does not outweigh parental discretion); Milliken v. Bradley, 418 U.S. 717 (1974) (concluding that the state did not have authority to bus children out of their school district in order to desegregate); Yoder v. Wisconsin, 406 U.S. 205 (1972) (requiring that parents send their children to school to age 16 violated religious freedom of Mennonite parents).Google Scholar
19 The Jugendschutzgesetz [law for the Protection of Children and Youth], Bundesgesetzblatt, Part I, 2002-07-26, No. 51, 2730–39 (2013). This law is “tougher” than any comparable U.S. law.Google Scholar
20 In the U.S. this is particularly popular in communities of Hispanic background. For an account on tattooing, see Caplan, Jane, Written on the Body: The Tattoo in European and American History (2000).Google Scholar
21 It is necessary to establish numbers for various sub-populations, but overall, about 20% of males in Germany are circumcised compared to about 75% in the U.S. Numbers in the U.S. have declined some, partly because the practice is less common among the Latin American immigrants who dominate the current stream, because insurance companies are trying to pay for less and less, and possibly for other reasons to be explored. Numbers in Germany seem to have risen slightly along with the Muslim population. See Gesundheitsforschung- Gesundheitsschutz, 50 Bundesgesundheitsblatt 836–50 (2007).Google Scholar
22 “Offener Brief zur Beschneidung, ”Religionsfreiheit kann kein Freibrief für Gewalt sein,“ http:www.faz.net/aktuell/politik/inland/offener-brief-zur-beschneidung-11827590.html (Aug. 8, 2012).Google Scholar
23 Thus, in the Convention on the Rights of the Child, Article 19.1 commits signatories to take all appropriate measures “to protect the child from all forms of physical … violence, injury, or abuse” while Article 24 requires them to “take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children.” Proponents regularly referred to well-documented hygienic and disease-prevention benefits.Google Scholar
24 See Heins, supra note 14, at 151.Google Scholar
25 For the Resolution of Parliament, see Deutsche Bundestag Drucksache 17/10332. The law is codified at §1631(d) of the Civil Code (BGB) among the sections dealing with parental authority and near to §1626(1), which states that “parental custody includes care of the person of the child.” The if-under-six-months clause enables Jewish circumcisers (mohelim) to continue to pursue their trade.Google Scholar
26 See BVerfG, Beschluss des Ersten Senats vom 27. Januar 2015, 1 Bv R 471/10 und 1 BvR 1181/10. The fallout from this decision has taken some time to settle, in both the courts and the schools.Google Scholar
27 See, e.g., Joppke, Christian, The Secular State under Siege: Religion and Politics in Europe and America (2015).Google Scholar
28 See Carol, Sarah, Marc Helbling & Ines Michalowski, Gretchenfrage der Integration: Religiöse Praxis prägt das Zusammenleben starker als angenommen, 142 WZB Mitteilungen 18–20 (Dec. 2013).Google Scholar
29 See Kymlicka, Will, Multicultural Citizenship: a Liberal Theory of Minority Rights 94–96, 114–15 (2000).Google Scholar
30 See Walzer, Michael, Comment, in Multiculturalism: Examining the Politics of Recognition 99–101 (1994). Walzer is one of the more sovereigntist and communitarian of liberals.Google Scholar
31 See International Covenant on Civil and Political Rights, arts. 1, 27, Dec. 16, 1966. S. Exec. Rep. 102–23, 999 U.N.T.S. 171.Google Scholar
32 Employment Division v. Smith, 494 U.S. 872, 885 (1990) (Scalia, J.) (involving the religious use of peyote, a banned drug).Google Scholar
33 The U.S. Congress in response passed the so-called Religious Freedom Restoration Act (RFRA), precisely in order to require a compelling government purpose when religious interests are affected. 42 U.S.C. § 2000bb(1)–(4). Although highly valued these days by Christian Conservatives, RFRA was initially proposed by liberals seeking to protect Native American rituals involving ceremonial drugs. One might interpret the Bundestag's overwhelming endorsement in December 2012, BGB ¶ §1631(d) “Gesetz über den Umfang der Personensorge bei einer Beschneidung des männlichen Kindes” in this vein as privileging religious freedom over normal government regulation.Google Scholar
34 42 U.S.C. §2000bb(1)(a)-(b).Google Scholar
35 See Burwell v. Hobby Lobby, 134 S. Ct. 2751 (2014) (holding that it would violate RFRA to require that a closely held corporation provide insurance coverage for contraceptives that violated the corporation's owners' religious beliefs).Google Scholar
36 For the fundamentals of this debate, see Fraser, Nancy & Honneth, Axel, Redistribution or Recognition? (2003); see also Benhabib, Seyla, The Claims of Culture: Equality and Diversity in the Global Era (2002). Pres. Obama's 2012 election victory was explained, especially by media and academic supporters, as a triumph of identity demographics, not of class interests.Google Scholar
37 Formulated in 1967, “Böckenförde's Paradox” was intended in part as a reminder of the salient role of religion in a democratic Germany. Bökenförde served on the Constitutional Court from 1983-1996. For the English translation of Böckenförde, see State, Society, and Liberty: Studies in Political Theory and Constitutional law 45 (1991). For a renewal of the Böckenförde discussion with reference to religious values, see Jürgen Habermas & Josef Ratzinger, the dialectics of secularization: on reason and religion (2006); jürgen habermas et al., an awareness of what is Missing: Faith and Reason in a Post-Secular Age 18–19, 21 (2010).Google Scholar
38 The rise of the AfD, of course, shows that more and more Germans may actually think so, and though the explicit argument is not yet salonfähig, it is now in the Bundestag; see supra note 9 and accompanying text.Google Scholar
39 Habermas & Ratzinger, supra note 37, at 31–34. Finally, it is “cultural resources that nourish citizens' consciousness of norms and their solidarity.” Id., at 46.Google Scholar
40 Habermas's vision of a secular state with religious people sounds quite American and is, in any event, modeled on a very Protestant model of separation that does not work in Israel or Muslim countries. See Wie viel Religion verträgt der liberale Staat, Neue Zürcher Zeitung (Aug. 6, 2012), at 8.Google Scholar
41 Max Weber, Economy and Society 389 (Guenther Roth & Claus Wittich eds., 1978).Google Scholar
42 The best known example of this approach is Wisconsin v. Yoder, 406 U.S. 205 (1972), a case in which the U.S. Supreme Court found that on account of their family's religious beliefs Amish children could not be forced to attend school to age 16 or past 8th grade. The Court (mis-)construed the Amish as a harmless, hermetically sealed sect of about 15,000 in Wisconsin.Google Scholar
43 This important point is made by Rainer Forst. See Forst, Rainer, The Limits of Toleration, 11 Constellations 313, 315 (2004).Google Scholar
44 Id. at 316 (quoting J. W. Goethe, Maximen und Reflexionen, 6 Werke 507 (1981).Google Scholar
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