German court decides that circumcision is illegal
Two weeks ago, a state court in Cologne, Germany, decided that a fundamental religious initiation rite among Muslims and Jews is illegal. According to a news release out of the Cologne courts, a lower municipal court had in September 2011 exonerated a physician who had circumcised a four-year-old Muslim boy in 2010 after his parents had given their permission.
Accused by public prosecutors of having caused bodily harm to the boy, the doctor was cleared by the lower court. The judge argued that the circumcision had been performed for the well-being of the child.
“Circumcision as a traditional practice,” the lower court ruled, “serves to document the cultural and religious affiliation and counters a stigmatizing of the child.”
The court also noted that circumcision is considered to be of great hygienic value in America and the Anglo-Saxon world.
Responding to an appeal by the public prosecutor, the Cologne state court (Landgericht) sided with the lower court in clearing the doctor, although on different grounds, but declared that circumcision causes bodily harm within the definition of the law.
The appeals court rejected the notion that the act, even when the parents had expressly permitted it, was for the well-being of the child. In the view of the court, the fundamental right of the child to life and physical integrity trumps the basic rights of parents. The court did not find religious freedom and the right of parents to rear their children “unduly restricted, if they are asked to wait until the child might later himself decide to be circumcised.”
Yet the previous acquittal of the doctor was upheld on grounds that the doctor had been “unavoidably in error” since he had believed that he acted legally.
“This error,” the higher court found, “was for him unavoidable since the legal situation has been decided differently in legal practice and literature.”
Muslim and Jewish reactions
Reactions to the court decision were swift in the German media, notably from two religious groups particularly affected.
The Central Council of Muslims in Germany called the ruling “a blatant and impermissible intrusion into the right of self-determination of religious communities and into the rights of parents.”
Aiman Mazyek, the chair of the council, stated that “religious freedom is accorded very great value in our constitution and should not become a pawn of a one-dimensional adjudication, which in addition will harden even further the existing prejudices and clichés that surround the topic.”
Muslim organizations also demanded that the German federal parliament safeguard and decree legal recognition of male circumcision.
The Central Council of Jews in Germany considers the judgment “an unprecedented and dramatic intervention in the right of religious communities to self-determination.”
According to Dr. Dieter Graumann, the council’s president, “This court decision is an outrageous and insensitive act. Circumcision of newborn boys is an inherent part of the Jewish religion and has been practised worldwide for centuries. This religious right is respected in every country in the world.”
The Jewish Anti-Defamation League (ADL) in the United States defended circumcision as “a core religious rite of Judaism” and considers its criminalization “an intolerable burden on the free exercise by Jews and also by Muslims who practice male circumcision as part of their religious faith.”
Abraham H. Foxman, director of ADL, noted German efforts to reconcile with Jews and to rebuild Jewish life in the country, adding that while the court’s ruling had no anti-Semitic intent, its effect is to say, “Jews are not welcome.”
Christian organizations have joined the campaign of Jews and Muslims to recognize and maintain the ancient ritual.
The Conference of Roman Catholic Bishops in Germany judged the court’s decision as “very odd,” endangering the rights of parents.
Philosophers, theologians, politicians and scholars have all weighed in for or against the decision so that the topic has engaged wider public discussion.
Necla Kelek, an articulate Turkish-born feminist writer and social scientist, is among the critical voices supportive of the court’s ruling.
In an article in the German newspaper Die Welt, she judges circumcision to be a “reprehensible tradition” that traumatizes the child.
Kelek disputes its medical value.
Referring to possible mental harm among Muslim boys — who are traditionally circumcised between age seven to 10 rather than a few days after birth, as among Jews — she quotes the psychiatrist Janet Menage, who considers the rite to be “societally sanctioned abuse.”
Among the German public, the court’s judgment has received considerable favourable support. A poll conducted for the German magazine Focus Online shows that 56 per cent of Germans support the judgment of the appellate court, while only 35 per cent consider it wrong, with 10 per cent of those interviewed offering no opinion.
Hans Rollmann is a professor of religious
studies at Memorial University
and can be reached by email at firstname.lastname@example.org