The reporting of the recent regional court judgement concerning infant circumcision in Germany has been predictably sensationalist; it is a ruling of a local and low court, binding only in a very limited geographical area, and I assume – albeit as a legal layperson – that it will be overturned fairly quickly. (The European Convention on Human Rights – which will overrule any local law in Germany – does, it is true, place a ‘public health’ exclusion on the right to family life (8.2) and the right to freedom of religious practice (9.2), but (a) ‘public health’ usually means the prevention of communicable diseases or widespread health threats, not protection from individual harm (assuming it is accepted that male circumcision is an instance of individual harm – it has been practiced on grounds of improved genital hygiene) and (b) the religion clause was written in full knowledge of practices of infant circumcision, and there was presumably no intent to outlaw such practices.)
Considered in abstract, however, the ruling raises two interesting questions about religious liberty: whether parents should determine a child’s religion; and whether freedom of religion is sufficient justification for practices otherwise considered harmful by the wider culture.
Assuming the various press reports of the Cologne case were accurate (which assumption is probably dangerous), the court’s decision explicitly considered the first question, and proposed that the parental decision to have a child circumcised infringed on the child’s right to religious self-determination. Two things might be said about this: first, it demonstrates worrying religious illiteracy on the part of the court; and second, it is a rather quaint and utopian position to adopt.
Circumcision does not, in simple point of fact, define a (male) child as Jewish or Muslim. One is Jewish by virtue of birth: the covenant was made with all the children of Israel, and circumcision is an act of obedience to the covenant, not an act of entry into it. Equally, one becomes a Muslim by reciting shahadah (‘There is one God, and Muhammed is his messenger’) wholeheartedly. To the best of my knowledge, the only religious tradition currently popular in Germany – or the UK – that purports to have a practice that defines a child’s religious identity is Christianity: in Roman Catholic, Lutheran, and Reformed teaching, baptism is a sacramental act, effecting a change of identity in the one baptised. (Will Willimon has a beautiful illustration, recalling a student who announced angrily ‘I am a baptised Episcopalian; no-one has the right to tell me who I am’ he commented that only one clause of that declaration can be true; the act of infant baptism is precisely the act of the church claiming the right to tell the child who she is.) Were the court to have enjoyed an elementary level of religious literacy, a concern for a child’s right to religious self-determination would have led it to ban (infant) baptism, whilst remaining unconcerned about circumcision. (This is not a polemical Baptist point – see below; it might be a useful bit of Baptist apologetic in contemporary Western culture, however.)
Second, the court reportedly operated on the basis that religious neutrality was a possible, even desirable, context in which to raise a child. This harks back to charming 1960s imagined ideas: there is a ‘view from nowhere’, a way of being in which one can remain aloof and uncommitted from any commitment until one is ready to choose sides.
Unfortunately, it doesn’t work.
All practices are committed, and both express and inculcate beliefs. To pray is to be committed, but so is not to pray; to be prevented from worshipping a creator is as much an act of determination as to be constrained to offer worship. This week’s court ruling was doubly predicated on fiction: the fiction that circumcision is religiously determinative; and the fiction that it is possible to raise a child in a way that is not religiously – biased, if not determinative. The boy’s Muslim parents will, by a million conscious and unconscious practices, impart the message to their child(ren), ‘we are Muslims'; Heather and I would impart the message, ‘we Christians, Baptists, evangelicals’ to our daughters even if we tried not to. Of course, in fact we try to; my concern is not that, but instead that my discipleship is sufficiently poor that I unconsciously impart the message ‘but sometimes I don’t really believe that stuff’ as well… Religious neutrality is an unobtainable dream, perhaps utopian; I suspect more likely dystopian (true neutrality would demand a studied refusal to impart any account of ultimate values, and so any moral and ethical commitments…). Either way, it is not a possibility in the real world; every child’s upbringing will instantiate a set of commitments and values.
The second point is more interesting, because a live question in most democratic societies. Every society has a set of norms, in modernity generally legally-established, which define acceptable behaviour on grounds of (what has recently fashionably been called) human flourishing. Health and safety is a particularly modern and technocratic part of this, but ancient systems of taboo and superstition function in the same way: touching this tree, or walking under a ladder, is believed to harm the individual or the community, and so is somehow forbidden. The traditional religion of a culture tends to reinforce this; new religious practices threaten it; are they to be permitted?
The point has been live for centuries: Augustine wrote on The City of God in part to respond to those who claimed that the Goth’s sack of Rome was caused by Christian neglect of the old ways of worship that had protected the city. Today, in Western democracies, the transcendental values that must be protected (read ‘idols’ if you wish…) include, centrally, national security, health and safety, and personal autonomy. Liberal democracies demand that religious minorities put the security of the state ahead of their personal religious commitments – a live issue for many of us (suppose I find the nuclear deterrence argument at least somewhat convincing? Of course, no Christian can support the use, and so the possession, of nuclear weapons, and so I am morally committed to weakening the state’s security…); the issue at stake in this court ruling, however, is ‘health and safety’. The court chose to regard male circumcision as bodily harm, and ruled that the state’s duty to prevent its citizens suffering bodily harm was more significant that any respect the state might owe to parental religious practices.
My medical knowledge is even less than my legal knowledge, and I have no wish to discuss the question of whether male circumcision is defensible on medical grounds, other than to note that the question seems live. (I once read a defence of male circumcision – advanced in an online discussion by a number of (Christian) women – on aesthetic grounds; I have even less desire to engage in that discussion…) If we abstract from the current court case, the question is whether a practice generally considered hazardous, unhealthy, or dangerous might be differentially permitted on religious grounds. (The practice sometimes inaccurately referred to as ‘female circumcision’ – more properly called ‘female genital mutilation’ – is unquestionably a serious physical assault on the victim, and in any case has no justification whatsoever in any significant religious tradition.)
It seems to me that the Cologne case identifies a current flashpoint in Western democratic reflection on this issue. Generally, our societies have taken the view that there is an overriding state duty to protect public health, but that individuals might be permitted the freedom to endanger themselves, if they can claim conscientious reasons. So, in the UK, legal requirements to wear a helmet when riding a motorcycle are relaxed for practicing Sikhs to allow them to continue to wear the turban; the only person endangered is the rider. Actions which endanger other members of the community, however, will not be permitted.
There are three current points of tension in this settlement. First, in some Western democracies – France would be the obvious example – the state seems to perceive a basic incompatibility between its values and (some) religious practices, and so seeks to exclude religious practices from public life in toto. A less sympathetic reading might see this narrative as an offered justification of an act of oppression: the state seeks to subjugate certain peoples, and preventing them from public practice of their religion is a part of this. It would certainly be possible to narrate the Cologne case in these terms if one were so minded…
Second, the present move to extend the human rights discourse to higher animals is a significant flashpoint, because of the prevalence of practices of ritual slaughter in some religious traditions. I have no idea of the accuracy of the animal welfare claims sometimes made concerning kosher and halal preparation of meat – and we must always be very aware of the possibility of latent prejudice finding apparently-legitimate expression – but the question of my freedom of conscience vs the rights of animals to be slaughtered painlessly is presently being debated in several fora across Europe.
Third – and the relevant point here – the question of the extent to which the rights of parents to bring up their children as they see fit vs the state’s duty to protect children remains contested. In Europe, this debate has been beneath every legislative discussion over corporal punishment, for instance: should the state outlaw spanking, because it is damaging to children, or should some accommodation to parental beliefs in its effectiveness be made (as is at present the case in the UK)? The question of corporal punishment has not yet become a matter of religious freedom in Europe to the best of my knowledge (thankfully…), but the Cologne case raises a similar question: to what extent does the state have the right to intervene in parenting to prevent (perceived) harm to children?
Child abuse is, and of course should be, a crime; but at what point does poor parenting become abuse? And does that point shift if the parenting practices can claim religious backing? The court in Cologne chose to rule that circumcising a four year old boy crossed that line; whether we believe this is reasonable or not, the question of where the line should be drawn, and the place (if any) of religious conviction in that, remains a live one.