September 27, 2016

Munzer on Secularization, Anti-MInority Sentiment, and Cultural Norms in the German Circumcision Controversy

Stephen R. Munzer, University of California, Los Angeles, School of Law, has published Secularization, Anti-Minority Sentiment, and Cultural Norms in the German Circumcision Controversy at 37 University of Pennsylvania Law Review 503 (2015). Here is the abstract.
After an appellate court made circumcision of minors effectively illegal in the absence of a medical justification, the German Parliament passed a statute that restored, with some limitations, the right of parents to seek ritual circumcisions for their sons. Between these events, a fierce controversy broke out in Germany involving Jews, Muslims, and other Germans. Whereas circumcision without medical indication is rare among most Germans, it is a common religious practice in Jewish and Muslim communities in Germany. The debate tapped into ongoing discussions of German cultural norms, German secularization, and a long history of anti-Semitism and a much shorter history of anti-Muslim sentiment in Germany. It also tapped into the religious and traditional practices - sometimes converging, sometimes diverging - of Jews and Muslims. This Article discusses the range of opinions on religious circumcision among Germans and other Europeans. It disentangles the social factors at work in the debate and analyzes the court decision and the new statute. It also examines some recent decisions under the new statute and explores problems with the statute's application. Given that roughly 700 million boys worldwide have undergone ritual circumcision, the German controversy has global implications. This Article shows that at day's end, the debate turns on issues of toleration and multiculturalism. It is scarcely possible to resolve this - debate without asking, "What is a child?" If a child is a proto-member of his parents' religious community and has only a weak right to bodily integrity, or if the risk-benefit ratio favors circumcision and the parents have a broad scope of consent, then circumcision without medical indication might be legally and morally permissible. Parents might then have discretion to place on his body a permanent physical symbol of his expected or hoped for religious affiliation as an adult. Yet if a child has a strong right to bodily integrity, and circumcision is not medically indicated, then the permanent physical modification of his body with a symbol of Jewish or Muslim identity might be problematic, and circumcising him for aesthetic or other nonreligious reasons might likewise be problematic.

Download the article from SSRN at the link.

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