Saturday, September 29, 2012

The Cologne Ruling and the Limitations of Religious Freedom

"For the right to circumcise little boys."

I had been holding off writing about the ruling in Cologne, Germany, mostly because there have already been other excellent writings covering this landmark ruling, but also because circumcision laws simply aren't too exciting for me. The outcome is simply too predictable, with Jews playing the anti-Semite card and governments bending or outright ignoring their own laws and defying all logic and reason, not to mention the whole of modern medicine, to appease them.

This had already happened before, where lawmakers in San Francisco had to invoke an obscure law that allowed veterinarians to declaw cats, and California senators had to write a law making claims that defy the whole of modern medicine in order to "protect" the practice, and ultimately quell the anger of Jews and Muslims who defend it for "religious reasons." Fighting the law on "medical grounds" allowed lawmakers to circumvent the minefield of "religious freedom" and "parental choice," where it could be argued that female circumcision, and other abusive practices on minors, could be allowed.

As in San Francisco, I wasn't holding my breath regarding Germany; I knew that one way or another, the law had to be overturned, especially in Germany, where their Nazi past makes them particularly vulnerable to accusations of anti-Semitism, and leaders do whatever it is in their power to keep their record "clean," as it were. Back in July, Germany's lower house of parliament passed a resolution to strike down the Cologne ruling, and now a new law sanctioning infant circumcision has finally been drafted. It flies in the face of Germany's Basic Law, but I suppose German lawmakers see this as a necessary lapse in German law.

Circumcision in Germany vs. Circumcision in the US
Here is the problem; in America, circumcision is a practice that has been deeply ingrained in our culture. Even though the infant circumcision rate has dropped from about 90% in the 80's, to about 56% today according to the CDC, American males remain circumcised at large, approximately 80% of all US males having been circumcised in infancy. It is easy for a large group of circumcised lawmakers and legislators to look the other way, and/or prop up claims of "medical benefits," however poorly supported they may be. Who wants to believe that they were mutilated? That their parents allowed a charlatan to profit from them at their own expense? Or worse, that they allowed something dreadful to happen to their own children? A predisposition to view circumcision in a positive light makes it difficult to question the practice of infant circumcision.

The case is different in Germany, and other countries where circumcision is rare, limited only to religious groups, or surgical treatment that is genuinely warranted. The same predisposition in favor of circumcision doesn't exist, and it is viewed mostly as any other surgery, performed only when absolutely necessary, and I say "mostly" because up until the Cologne ruling, Germans still had to look the other way when it comes to the circumcision of infants as it is performed by Jews and Muslims.

While the male population in Germany remains anatomically correct at large, and while unlike American medical institutions the Germans don't buy into the so-called "benefits" of circumcision, Germany still bears the burden of its Nazi past, and they have other reasons for wanting to circumvent the issue, where giving the practice of the forced circumcision of minors the scrutiny that it deserves is tantamount to "anti-Semitism."

Cologne Court Ruling is Accurate
The court in Cologne ruled that circumcising a child that is not of age, without any medical indication, constitutes bodily harm, and that circumcising healthy minors is punishable by law. Predictably, Jewish and Muslim groups expressed outrage, rejected the idea that circumcising a healthy, non-consenting minor constitutes bodily harm, and insisted that the new ruling was an infringement on their "religious freedom" and "parental rights."  Appealing to compassion and sympathy, some have said the new law was an insensitive and mean-spirited attack on German Jews.

The "outrage" and claims of "insensitivity" seem to serve the purpose of drawing attention away from the case responsible for causing the court in Cologne to rule as they had. Authorities in Cologne didn't wake up one day and decide "today is a good day to antagonize Jews and Muslims."

It must be asked, what was the case, and who did it involve? What could cause the court in Cologne to issue such a controversial ruling?

The case did not even involve a Jewish mohel circumcising a child. The case involved a four-year-old boy who nearly hemorrhaged to death. His parents, being Muslim, had asked a Muslim physician to perform the surgery which resulted in serious complications. A doctor's letter says that the boy was brought to a children's emergency room by his mother two days after his circumcision, as the bleeding would not stop. Apparently a "urological surgical revision" of the circumcision "under general anesthesia" followed, after which the boy spent several days in a children's ward. Three dressing changes had taken place "under anesthesia." According to the doctor's letter, the exposed surface and the glans penis was "uneven, eroded, and fibrinous occupied". The boy spent days ten days in clinical treatment.

The Cologne district court was aware of the medical details, but they were not made public at the time. One reviewer, who had been commissioned by the Cologne Regional Court had attested to the physician who performed the circumcision, that the intervention had been "carried out in accordance with the rules of medical science." According to the experts, bleeding is a possible complication of circumcision.

And yet, despite all of this this, Social Democratic legislator Christine Lambrecht has the nerve to insist that "Genital mutilation has nothing to do with the circumcision of boys." The fact that a boy suffered complications and that he is left with a permanently disfigured member for the rest of his life is not as important as the "outrage" Jewish and Muslim groups have expressed at the German court for calling a spade a spade.

While religious groups express despairing cursing rage, and Germans concerned with their  political image sympathize with them, it's cases like these German courts have to work with. Yes, unless there is a pressing medical need (there was clearly none here), the circumcision of healthy, non-consenting minors constitutes bodily harm, and those who engage in the practice ought to face charges, as they are placing children at risks, such as the hemorrhaging the boy in this case suffered.

"Uncertainty" vs. Clarity
Something that I find interesting is how news outlets and opponents of the Cologne ruling insist that it has caused "legal uncertainty." But "uncertainty" for whom? Certainly not for German lawmakers and interpreters of those laws. German Basic law is already quite clear where it says:

Grundgesetz / Basic Law:
Article 1
[Human dignity]
  1. Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.
  2. The German people therefore acknowledge inviolable and inalienable human rights as the basis of every community, of peace and of justice in the world.
  3. The following basic rights shall bind the legislature, the executive, and the judiciary as directly applicable law.
Article 2
[Personal freedoms]
  1. Every person shall have the right to free development of his personality insofar as he does not violate the rights of others or offend against the constitutional order or the moral law.
  2. Every person shall have the right to life and physical integrity. Freedom of the person shall be inviolable. These rights may be interfered with only pursuant to a law.
Article 3
[Equality before the law]
  1. All persons shall be equal before the law.
  2. Men and women shall have equal rights. The state shall promote the actual implementation of equal rights for women and men and take steps to eliminate disadvantages that now exist.
  3. No person shall be favoured or disfavoured because of sex, parentage, race, language, homeland and origin, faith, or religious or political opinions. No person shall be disfavoured because of disability.

The fact of the matter is that, actually, up until the Cologne ruling, doctors in Germany who circumcised boys for purely religious reasons without medical necessity, acted within a legal gray area. Until recently, they could claim to have no knowledge of the criminality of performing religious rituals. Even if a court accepted the case later as personal injury, the doctor had to be acquitted due to this fluke in the law. Rather than "uncertainty," the Cologne ruling actually establishes legal clarity for the first time in Germany, by eliminating this possibility.

The "uncertainty" the Cologne ruling creates is in the minds of those who wish to continue to defend and conduct infant circumcisions; it is to those who wish to continue carrying out dubious practices under the law that clear and precise wording causes "uncertainty."

The laws could not be made more clear. Forced circumcision on minors is bodily harm, and, as evidenced by the very case on which this ruling was based, it puts them in danger, even when carried out by "professionals" under "medical conditions." Unless there is a clear and compelling medical reason to conduct circumcision on a minor, the professional is engaging in professional misconduct, not to mention violating the rights of that individual, and should be held punishable by the law. Physicians profiting from any other surgery on non-consenting minors would face charges of charlatanism and medical fraud.

It is creating an exception to the rules that govern all other areas of medicine which cause ambiguity and uncertainty. German lawmakers seem determined to recreate the legal gray area that the Cologne ruling abolished, to appease religious groups.

Clarity in America
In America, infant circumcision has no legal standing either:

 The 1st Amendment states clearly:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The 14th Amendment says:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Permitting the circumcision of healthy, non-consenting infants violates the free exercise of religion, which includes the immunity from having a religion forced upon one's self, the freedom of speech of children, not to mention the right to their own bodies and self-determination, and the right for them to petition the Government for a redress of grievances, should any of them grow up to resent what was done to them. It abridges the freedom of speech of those wishing to them.

The U.S. Female Genital Mutilation Act already defies the 14th Amendment, as it affords protection from genital cutting to only one sex. Furthermore, the institution of a law that protects "religious and parental rights" places the federal ban on female genital cutting on shaky ground, because for better or for worse, it too infringes on "religious and parental rights."

There is a long line of US Supreme Court cases that place limits on what parents can inflict upon their children. One such case is Prince v. Massachusetts. The Court stated, "Parental authority is not absolute and can be permissibly restricted if doing so is in the interests of a child's welfare." The following assertions can be found in the majority opinion written for the above case:
"...neither the rights of religion nor the rights of parenthood are beyond limitation…The right to practice religion freely does not include the right to expose the community or the child to communicable disease or the latter to ill-health or death...
Parents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves."

As clear as the law is, there is no need to make a special law, as the majority of Americans are in agreement that this is one area in law, courts can simply look the other way and scrutinize no further than "it's my religion" or "it's my right as a parent."

So what are German politicians to do?
German politicians who want to keep good relations with Jews and Muslims are stuck between a rock and a hard place. On the one hand, they've got the laws of their country to respect and uphold. On the other, they've got accusations of anti-Semitism to fend off. So what are they to do?

Back in July, Germany's lower house of parliament vowed to strike down the Cologne ruling. They sat and brainstormed on what laws they could create, what laws they could amend, in order to make the circumcision of healthy, non-consenting minors in the name of "religion" legally acceptable. This would be a difficult task, as they cannot write a law that stands in clear opposition to German Basic Law, which protects all citizens equally from forced non-therapeutic amputations.

Creating a special law that sanctions the religious practice of genital mutilation on healthy, non-consenting minors might clear up the "uncertainty" for those who adhere to the practice, but it would muck up the waters legally for Germany. A dangerous precedent would be established that religious groups could then use to argue that it is their "religious right" to be performing genital cutting rituals in girls. Adherers of Islam could be excused for slashing their children's heads open on their holy day of Ashura. As long as Germany is passing laws that favor religious groups, they may as well be asked to enact Sharia Law.

Father slicing his child's head on the day of Ashura.

So how do German lawmakers plan on getting past their own Basic Law?

Yes, that's right; it's almost as if San Francisco were repeating itself all over again. The rule of thumb seems to be, "When you can't win an argument, change the subject."

Law makers know that establishing a law that "protects" the "religious circumcision" of infants would land them in even more "uncertainty" than before, so, citing the latest AAP policy statement (they couldn't cite German medical organizations, because unlike the AAP, they don't buy the "benefits" line) they've decided to draft a law that would protect the "parental consent" of so-called "medical circumcision."

The solution of German lawmakers cannot be to establish a special law that "protects" religious practices, because this would be in direct opposition to Basic Law, so their solution was to circumvent the religious argument and recreate the gray area that the Cologne law abolished by willing into law that circumcision is a legit "medical choice," they way Mike Gatto did in California. You can see the details of the new law here.

*NOTE: The new AAP statement says that "the benefits [of circumcision] outweigh the risks," but it still says that they are "not enough to recommend circumcision." It should strike the reader as odd that American parents are being asked to consider "benefits" that a major medical organization could not use to recommend the practice, and somehow make a better judgement than the AAP itself.

Readers should take note of both the political slight of hand, and the self-contradicting tap dance happening here:
  • The court in Cologne reached its decision after a four year old boy, and others before him, suffered severe complications, despite the fact that his circumcision was carried out in a medical setting.
  • The ruling caused outrage in Jewish and Muslim groups who see it as an infringement on their "religious freedom," which German lawmakers have vowed to protect legally.
  • The solution is to talk about "potential medical benefits," this DESPITE the fact that a child suffered life-long complications, which triggered the Cologne ruling in the first place.

In America too, it seems courts medical boards prefer to minimize or completely ignore the risks and complications of the circumcision of healthy, non-consenting minors, be it in a "religious" or "clinical" setting. The last few years have seen law suits raised against both mohels and doctors who cut the glanses off the penises of Jewish and gentile children. In one particular incident, a New York rabbi gave herpes to three Jewish babies, one of whom died, by way of the ultra-orthodox practice of sucking on a child's wounded penis (AKA metzitzah b'peh), bringing the practice into question. Circumcision botches are so common that there are doctors that specialize in circumcision corrections.

But nevermind that! And nevermind the laws that govern our country, which already outlaw the forced genital mutilation of minors. Let's consider the myriad of speculative "benefits" that neither warrant surgery (as there is already less invasive, more effective treatment that affords those same benefits), nor concern a healthy, non-consenting child, and that no medical organization in the industrialized world, not even the AAP, could use to endorse the practice.

If this proposed new law is passed, it will serve as a third, perhaps even fourth precedent in the history of intactivism.

Let it be clear, that it is not possible to legally defend the forced genital mutilation of minors on the grounds of "religious freedom" or "parental choice," as this defies the basic laws of industrialized nations which guarantee justice, equality, and protection for all.

For this reason, politicians and other advocates of "religious freedom" must grope for pseudo-medical rationale to defend the deplorable practice of the forced genital mutilation of healthy, non-consenting minors.

 Is this about medicine, or about protecting cherished traditions?

This can be seen in San Francisco, where an obscure law meant for animal doctors had to be invoked to block the democratic process to protect a religious ritual, in California, where Mike Gatto, under the tutelage of Jewish Congressman Brad Sherman had to write a law decreeing the "medical benefits" of infant circumcision, and in Colorado, where Jewish Senator Joyce Foster and friends were seeking to recover medicaid funds for infant circumcision, touting "medical benefits" as the pretext.

In time, the argument of "potential medical benefits" too, will be seen as a fallacious argument in the justification of the forced genital mutilation of healthy, non-consenting minors.

Genital mutilation, whether it be wrapped in culture, religion or “research” is still genital mutilation.

It is mistaken, the belief that the right amount of “science” and "medical benefits" can be used to legitimize the deliberate violation of basic human rights.
Closing Remarks
Even if this new law passes, intactivists should not despair; those that do should have seen it coming. We shouldn't despair when politicians with agendas change the laws to attract voters. Laws don't change anything. They never do. In a social movement, laws are the very last thing to change. What we need to work on is changing people's attitudes. Female circumcision was swimmingly outlawed because our country already viewed the practice with disdain. History shows us that laws reflect social change, not bring it about. And, it looks like, judging by news articles and reports, the fact that more and more people are openly talking about the practice, the very fact that it's being questioned in courts, change is already happening.

The views I express in this blog are my own individual opinion, and they do not necessarily reflect the views of all intactivists. I am but an individual with one opinion, and I do not pretend to speak for the intactivist movement as a whole, thank you.

1 comment:

  1. In America, we would not allow a religions to practice child sacrifice, child marriage, FGM, or the head slicing mentioned in this article. This is because we recognize that the law and religion are different (i.e. separation of church and state). To combine the two is akin to sharia and that is against our constitution. How is male circumcision so different so as to be protected on religious grounds then?

    The 14th amendment seems to be a legal avenue (and slam dunk) that could be used to invalidate the current FGM law. This would force lawmakers to create a new law that protects both boys and girls. Are any lawyers in the I2 community pursuing this?