Jackson Doughart
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The Banning of Circumcision is Not Religious Discrimination

Atheist Freethinkers, 12 July 2012

Abstract: The recent banning of medically unnecessary circumcision by a German court has enraged some religious communities who consider the ban to be a form of discrimination. But, as Jackson Doughart argues, they have it exactly backwards. To allow such bodily mutilation – an indelible mark of religious affiliation – without the consent of the person being mutilated, would constitute an egregious exception to that individual’s right to bodily integrity and a violation of that individual’s freedom of religion.

Few discussions about the legality and morality of male circumcision can be had without addressing religious circumcision rituals. These include the Islamic khitan, the traditions of several sects of Eastern Orthodox Christianity, and most famously the Jewish brit milah, performed eight days after the birth of a baby boy. Though most North American circumcisions are performed without any religious motivation, many prominent opponents of circumcision regulation are devout followers of Judaism and Islam, who believe that the ritual is a religious obligation for all males. Particular to Judaism is the belief that ritual circumcision signifies a covenant between the Jewish people and God. In both religious and secular cases, however, circumcision involves restraining an infant or young child and removing his foreskin, usually for no medical purpose and always without the consent of the patient. Such circumstances of medically-unnecessary circumcision were ruled illegal by a German court on June 26, sparking outrage in many of that country’s religious communities. Curiously, most international attention about the decision has not focused on the relative merits of the ban, and instead asks if the ruling amounts to religious discrimination against Jews and Muslims.

The contentious aspect of this suggestion is the form of its question, and not its simple and objective answer. Discrimination is not at issue here, at least in the original and, in my view, proper sense of the word. The court’s interpretation of circumcision as a violation of one’s constitutional right to bodily integrity applies without discrimination, making the contrary claim a rather absurd one. In point of fact, the Jews and Muslims who object to the decision actually desire that the law treat them differently than everyone else. This needless confusion results from widespread misuse of the word discrimination, which has become a sloppy replacement for unfairness and injustice — serious matters, certainly, but much harder to demonstrate without the black-and-white language of equality-talk. Would an indiscriminate circumcision ban, then, be unfair to Jews and Muslims, especially given the clarity of the Torah (Genesis 17:10-14) and the Hadith (al-Bukhari Vol. 7, Book 72, No. 779) on this point? If this is true, and if such unfairness is a real basis for evaluating the practice of circumcision, there are only two possible legal outcomes, neither of which would be acceptable in any country that believes genuinely in individual rights.

In the first case, it is argued that because any restriction of circumcision would infringe upon a parent’s ability to circumcise for religious reasons, no restrictions for anyone can be justified. This argument has the advantage of consistent and unexceptional application, but has some obvious shortcomings concerning religion. For instance, it is not clear how absolute such parental freedom is intended to be, and where society’s role in protecting a child’s interest over his parents’ should begin, if at all. Claims of uncheckable parental and religious freedom have been invoked to shelter children from educational opportunities and to prevent them from receiving medical care, each on the pretext of religious belief. The latter example was the subject of a 1995 case at the Supreme Court of Canada, B.(R.) v. Children’s Aid Society of Metropolitan Toronto, which determined that a parent’s religious freedom cannot extend to refusing a blood transfusion for his child, as religious liberty, like all freedoms enumerated in the Canadian Charter of Rights and Freedoms, is a self-determining right. If this line of reasoning is cogent, it could be applied quite easily to circumcision in the following manner: Any adult male whose religious convictions require such a procedure is free to seek circumcision for himself, but not for his infant son, who is entitled to his own self-determination in matters of religion and, where possible, medicine.

Failing to implement restrictions on circumcision for the above reasons would also presume a religious veto on legal and political initiatives, even for very small religious groups. Any attempts at consistent application of this principle would be impossible, and would likely receive little support if properly understood. For example, the legal prohibition of polygamous marriages in Canada openly infringes on the beliefs of Mormon fundamentalists, yet this does not undermine the legitimacy of anti-polygamy laws, which are based on secular concepts and argumentation. The related practice of forced marriage is also outlawed, despite the ample existence of cultural and religious excuses. Likewise, the tradition of female circumcision, practised widely in East Africa and Southeast Asia, is banned unequivocally in Canadian law as an assault causing bodily harm, even though a substantial number of immigrants hail from female-circumcising societies. Though most contemporary defenders of ritual circumcision would oppose each of these appalling practices, their use of purely religious and cultural justifications is nearly indistinguishable.

Recognizing the difficulty in using their faith to influence the political process, many religious minorities advocate special exemptions from laws to accommodate their religious beliefs. Accordingly, much of the Jewish and Islamic reaction to the German ruling has called for any prospective circumcision ban to include an exception for families whose faith requires that children be snipped. To my annoyance, this is commonly viewed as a sensible compromise, even among some opponents of circumcision. One holder of this view is the conservative bioethicist Margaret Somerville, who argued in her 2000 text The Ethical Canary that “we must have great respect for people’s religious beliefs, especially when these beliefs are long-established[; . . .] by interfering, not only do we harm the people whose religious beliefs we interfere with, we also harm society.” Somerville believes that we must consider the creation of a religious exemption, should Canada outlaw circumcision via statutory or judicial means. This is a highly misguided argument, advanced on the presumption that a religious exemption would respect the profound convictions of parents. In reality, such an exemption would demonstrate great contempt and disregard for children born into Jewish and Islamic families (who are more vulnerable to circumcision), since a law intended to protect one’s autonomy and self-determination would be withdrawn, all thanks to the accident of birth that is the religion of one’s parents. This would quite clearly amount to antisemitism and an actual incidence of discrimination worthy of outcry.

Furthermore, the creation of a special exemption for ritual circumcision would suggest that religious faith is a good reason for circumcising an innocent child. It is not. In fact, it is my view that notwithstanding the ignorance and misconception that fuels North America’s secular circumcision fetish, there is something infinitely more sinister about religious genital cutting. Beyond the roots of circumcision in sexual repression, the most disturbing aspect of this tradition is the desire to make children into permanent members of a religious community through the making of an irreversible mark, an excision that will not regenerate. This is clearly different from the sharing of religious traditions which do not encroach on one’s individual autonomy, and which can be either kept or rejected through intellectual reflection in adolescence and adulthood.

Such demands for special religious exemptions ultimately reveal the weakness of multiculturalism in matters of law, ethics, and public policy. It is now commonly acknowledged, even among many believers, that fruitful moral discourse and lawmaking are possible without religion. Yet this advancement is coloured by the belief that any resulting standards should not apply those who hold a conflicting article of faith. What is at stake here is not the livelihoods of Jews and Muslims, or the ability of parents to pass on traditions and world views to their children, but rather the fate of religion as a trump card in an important ethical debate. If a society can afford to ignore the religious circumcision of children, it should obviously apply the same permissive standard to those who want to cut for secular reasons. But if the opposite becomes true, and society begins to value the protection of a child’s bodily integrity, the “reasonable accommodation” of religious belief should not be the saving grace of this sordid, Bronze Age practice.

An abbreviated version of this article appeared in the Holy Post section of the National Post newspaper.

Jackson Doughart jdoughart (at) gmail (dot) com