Mark of Belonging

Why Circumcision Is No Crime

A decade ago, who would have guessed that controversies about male circumcision would roil a number of European countries and achieve some resonance in the United States? But that is what has happened. These events have raised important questions about individual rights, parental authority, religious liberty, and the nature of morality.

The issue of male circumcision reached the front pages of newspapers around the world in June 2012 when a court in Cologne, Germany, ruled that circumcising young boys inflicted grievous bodily harm and that the child’s “fundamental right to bodily integrity” trumped parental rights, despite the fact that the parents were acting in accordance with long-established and fundamental requirements of their religious faith. Although the case that reached the court concerned Muslim parents, its implications for Jews was obvious, and the president of the Central Council of Jews in Germany condemned the decision as “an unprecedented and dramatic intrusion on the self-determination of religious communities.” Meeting a month later, Muslim and Jewish leaders issued a joint statement defending circumcision and calling on the German government to take action. Michael Bongardt, a professor of ethics at Berlin’s Free University, contended that “the often very aggressive prejudice against religion as backward, irrational, and opposed to science is increasingly defining popular opinion.” On the other side, a leading criminal-law expert called for a national discussion about “how much religiously motivated violence against children a society is ready to tolerate.” With her country’s troubled past weighing heavily on her, Chancellor Angela Merkel declared, “I do not want Germany to be the only country in the world in which Jews cannot practice their rites.” By December 2012, the Bundestag passed legislation protecting parents’ rights to have young boys circumcised.

The controversy was not confined to Germany. In 2011, doctors in the Netherlands organized against circumcision, denouncing the practice as a “painful and harmful ritual.” Denmark became embroiled in a debate about whether to require medical supervision for all circumcisions or even to prohibit the practice outright. A socialist member of parliament declared that his Red-Green alliance advocated a ban on circumcision, and the Social Liberal Party—a member of Denmark’s ruling coalition—followed suit. One of the country’s most prestigious newspapers published an article describing circumcision as a ritual involving “black-clad men” who torture and mutilate babies. Meanwhile, Norway’s Center Party announced that it opposed circumcision, as did Finland’s third largest party, the populist True Finns. In a statement submitted to Sweden’s National Board of Health and Welfare, the country’s Pediatric Society called circumcision the “mutilation of a child unable to decide for himself” and advocated abolishing the procedure. In a meeting in Oslo on September 30, 2013, the five Nordic children’s ombudspersons released a joint resolution advocating a ban on nontherapeutic circumcision for underage boys.

These events are taking place against the backdrop of massive Muslim immigration to many European countries. In an analysis written for the Jewish People Policy Institute, Dov Maimon and Nadia Ellis comment that “as long as Jewish [animal] slaughter and Jewish circumcision were carried out on a very small scale, they were not regarded as a public-policy issue worthy of attention and were tolerated under special arrangements. The scaling-up of these practices as a result of the growing Muslim presence in several European countries now seems to require official regulation.” A backlash against Muslims that affects core Jewish practices as well makes this perhaps the first time ever that the term “anti-Semitism” applies with tolerable accuracy.

 

NO SUCH DEMOGRAPHIC tidal wave has reached the United States, making it harder to explain why activists in San Francisco were able to collect the thousands of signatures needed to place a circumcision ban on the city’s fall 2013 ballot. As in Germany, the state’s legislature intervened, passing a bill prohibiting localities from banning the practice. Nonetheless, U.S. activists are working to place such measures on state and local ballots across the country, and one of the movement’s leaders declared that “the end goal for us is making cutting boys’ foreskin a federal crime.”

This is hardly a trivial challenge to religious free exercise. Although the status and timing of male circumcision in Islam are debated among rival schools of jurisprudence, no such ambiguity exists among observant Jews. The Torah could not be clearer. In Genesis, God tells Abraham, “This is My covenant, which you shall keep, between Me and you and your seed after you: every male among you shall be circumcised.... And he that is eight days old shall be circumcised among you, every male throughout your generations.... And the uncircumcised male who is not circumcised in the flesh of his foreskin, that soul shall be cut off from his people; he has broken My covenant.” As if to underscore its importance, this command is repeated in Leviticus. The covenant between God and the Jewish people is central to Judaism, and circumcision is at the heart of the covenant.

Calling into question this solemn obligation is a body of international laws and norms that has developed since World War II. Maimon and Ellis lay out the issues in their analysis. Article 18 of the Universal Declaration of Human Rights states that “everyone has the right to freedom of thought, conscience and religion; this right includes...freedom, either alone and in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship, and observance.” On the other hand, Article 5 states that “no one shall be subjected to torture or to cruel, inhuman, or degrading treatment...” Many Europeans and not a few Americans regard circumcision as an instance of such “treatment.” Before the Bundestag acted, 45 percent of Germans opposed circumcision; after legislation protecting the practice was enacted, anticircumcision sentiment shot up to 75 percent. In Britain, opposition to nonmedical circumcisions now approaches 40 percent of the population.

The Convention on the Rights of the Child declares that “freedom to manifest one’s religion or belief may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others.” But the convention leaves no doubt about the ultimate authority to make such determinations: while taking into account the rights and duties of parents, it is the role of each signatory government to define and protect the best interests of the child.

Although the Charter of Fundamental Rights of the European Union guarantees the same rights of religious free exercise as the Universal Declaration, its Article 3 states that “everyone has the right to respect for his physical and mental integrity.” Opponents of circumcision contend that it is a patent violation of the infant’s physical integrity, carried out when the newborn is totally helpless and unable to understand what is happening, let alone consent to it.

This concern lies at the core of the resolution adopted by the Parliamentary Assembly of the Council of Europe in October 2013. The Assembly, the resolution states, is “particularly worried about a category of violation of the physical integrity of children, which supporters of the procedures tend to present as beneficial to the children themselves despite clear evidence to the contrary. This includes...the circumcision of young boys for religious reasons.” The author of the report justifying this resolution argues that “circumcision applied to young boys clearly is a human rights violation.” Not only does it violate children’s physical integrity; it is also undertaken without their consent. The author is “convinced that children, if they were given a choice, would not decide to be harmed by a medical operation, which is not entirely beneficial to them.” Parents’ decisions should reflect what their children would want for their own development, and the state must step in when decisions diverge from that standard.

 

THE CIRCUMCISION CONTROVERSY raises a number of densely overlapping issues. I begin with the most obvious—the limits governments may legitimately place on religious practices. That there are such limits is widely acknowledged. Few believe that the free exercise of religion includes the right to conduct noisy revival meetings at 2 a.m. in residential areas. A neo-Aztec sect might claim that its beliefs require virgin sacrifice; a neo-Canaanite sect might say the same about the firstborn. It seems safe to say that neither group would be permitted to act on its belief. Nor—to move a bit closer to our topic—would a religious group be allowed to amputate an infant’s limb, whatever narrative might be invoked to justify the practice.

Moving from hypothetical to real cases, parents and guardians may not invoke their religious beliefs, however sincerely held, to withhold medical care from minors. When a child in a Jehovah’s Witness family experiences internal bleeding, the parents are not allowed to block a potentially life-saving blood transfusion. When a child in a Christian Scientist family experiences a life-threatening infection, the state may intervene to administer antibiotics, regardless of the parents’ beliefs.

All these cases involve clear-cut physical harm to minors, inflicted through acts of commission or omission. A fair reading of the evidence on circumcision yields no such conclusion. A number of studies find that the practice reduces the incidence of HIV and other sexually transmitted diseases, a conclusion endorsed by the American Academy of Pediatrics and the World Health Organization. To be sure, when the circumcision is botched, there are negative consequences. And there may be sound medical reasons for banning or regulating some risky methods of conducting circumcisions. For example, the New York City Board of Health voted to require parents to sign a consent form before allowing the person performing the circumcision to perform oral-genital suction, a practice (standard in some parts of the Orthodox Jewish community) to which the Centers for Disease Control and Prevention traced eleven cases of infant herpes during the past decade, a few resulting in death.

But many opponents of circumcision regard these empirical considerations as irrelevant to their case. The point, they say, is the right to physical integrity, which prohibits inflicting any irreversible changes on children’s bodies without their consent, which they cannot give prior to reaching the legal age of responsibility. Medical considerations limit the scope of this right: parents can authorize surgery to treat birth defects that impair normal functioning or threaten life. They may also repair congenital defects that might subject their children to ridicule or social exclusion. Infant circumcision meets none of these tests; the foreskin is not a birth defect.

Traditional Jews cannot accept this logic. They believe that failing to circumcise their male infants eight days after birth would subject both parents and children to grave spiritual harm—potential exclusion from the community. Invoking an allegedly inviolable right to physical integrity is hardly dispositive. What justifies such a broadly drawn right and gives it priority over the right to practice one’s religion, which has long been regarded as a core human right? The exercise of religious beliefs should be enough to warrant the practice of circumcision unless opponents can demonstrate the likelihood of significant medical or physical harm, which in most cases they cannot.

Yeshiva University legal scholar Suzanne Last Stone argues that the language of human rights “has become the dominant mode of public moral discourse, replacing such discourses as distributive justice, the common good, and solidarity. Indeed, it has become something of a faith of its own.” In this vein, traditional Jews would argue that the language of human rights hardly exhausts the realm of moral and spiritual goods. There are obligations as well as rights, and not all obligations rest on consent. No one consents to be born, but one enters the world with obligations—to honor one’s parents, for example—the significance of which emerges over time. From the traditional Jewish perspective, similarly, the children of Jewish parents do not choose Judaism; they are born into it, and they are subject thereby to a wide range of obligations they do not choose. Through education, they learn the meaning of those obligations and gain the capacity to choose how best to meet them. The element of choice is not entirely absent: some individuals born into Judaism may decide to repudiate membership in the community, while others born outside the community may decide to enter it and freely embrace its obligations.

Entering into unchosen relationships is hardly the exclusive province of traditional Judaism. In Catholic doctrine, baptism is the Christian equivalent of circumcision, the “circumcision of Christ.” Like circumcision, baptism can be administered to children as well as adults, a proposition affirmed by Origen, Cyprian, John Chrysostom, and Augustine, among others. One is forced to wonder whether the human rights community’s insistence on adult consent as a necessary source of authorization represents a secularized version of the Protestant rejection of infant baptism—and whether it is an accident that the epicenter of antipathy to infant circumcision is located in heavily Protestant northern Europe.

 

OF COURSE, PARENTS must act on behalf of their children until they reach adulthood. Legitimate civil concerns—the necessity of formal education, for example—limit parental discretion, as do the fundamental rights of children to life and the means to it, such as necessary medical care. The author of the Council of Europe report argues for a third category of limitation as well—namely, parents’ good-faith effort to decide for their children as their children would decide for themselves. Parents, she insists, should become the “spokespersons of what their children would wish for their own development.” In the case of circumcision, she has no doubt what this principle implies: “I am convinced that children, if they were given a choice, would not decide to be harmed by a medical operation which is not entirely beneficial to them.”

It is hard to discern the basis of her confidence, because the concepts of “development” and “benefit” are incompletely specified. Some parents subject their children to religious education that the children resent and reject as soon as they are able. Other parents do the opposite on the grounds that their children should make religious decisions for themselves as adults—only to be reproached by their grown children for having deprived them of a serious religious education when they were best able to absorb it. The maxim of deciding for children as they would decide for themselves offers little guidance in practice. Some children who are forced early on to learn a musical instrument end up grateful to the parents who insisted they should. Children’s desires and preferences evolve unpredictably in response to experience, much of which is unchosen and some of which is unpleasant.

Still, the critics insist, there is a distinction between education and a surgical procedure. Adults may reject the education they received when young, but they cannot reject their circumcision. It is the “irreversibility” of the procedure that clinches the case for not imposing it on infants.

As a technical matter, circumcision is not irreversible. (I will spare readers the details.) The broader point is this: for better or worse, much of what parents do is irreversible. Where they choose to live will determine their children’s native language and culture, and the decisions they make about their children’s secular and religious education will be indelible. My friends who were raised as traditional Catholics tell me that their adult practices and beliefs—however far removed from those of their parents—do not efface the effects of childhood experiences. To be human—creatures of plasticity as well as instinct—is to be shaped by the “cultural womb”: by the decisions of myriad others long before we can participate in determining our own direction. Parents have no choice but to do the best they can, relying on their own understanding of what is right and good, in full knowledge that they will make mistakes, some of which will have lasting impact.

For traditional Jews, circumcision is a God-given obligation, the key to and symbol of membership in an ancient and worthy community. Rearing their children in that community, they believe, is the greatest gift they can give them. If excising a male infant’s foreskin were the moral equivalent of amputating his hand, the state would have no choice but to intervene. Only the commitment to an abstract and dubious right of physical integrity could blind observers to the obvious distinction between these two things. There is no reason for the law of the state to follow suit.

Published in the May 16, 2014 issue: 

William Galston is Ezra Zilkha Chair and Senior Fellow in Governance Studies at the Brookings Institution. He is the author of Liberal Purposes and Liberal Pluralism, both published by Cambridge University Press. Galston served as deputy assistant for domestic policy under President Bill Clinton, 1993–95.

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