Male circumcision pits two fundamental rights against each other: bodily integrity, and freedom of religion. But don't look to the legislature for a solution: it will have to come from within Jewish and Muslim communities.
The doctors who appealed to the German government and parliament were right; we need more time to form an opinion on circumcision, for two main reasons: circumcised boys are more limited in the pleasure they can derive from sex, but a prohibition of circumcision would seriously impede the constitutionally guaranteed freedom of religious practice.
From a medical perspective, the circumcision of all male offspring isn't necessary. We don't really gain anything from the practice, but we might sacrifice future sexual pleasure -- a topic that has just started to gain media traction. This matters: potential psychological consequences are important as well, but the debate about sexual pleasure had thus far been limited to female genital mutilation. Few extended it to male circumcision, a practice that is widespread around the world -- including Germany. After a recent court decision, we learned that Jewish and Islamic clerics are engaged in controversial debates about the justification of ritualistic circumcision in modern times.
When we examine freedom of religion more closely, we encounter a second challenge: the constitution protects not only the freedom to choose one's religion but also the parental prerogative to educate and raise their children according to their religious beliefs and traditions. This clause has an individualistic and an institutional component: religious groups are autonomous from the state; they alone define who can become a member and who cannot. The rules they give themselves might include rites of initiation as well as final blessings for the deceased. For example, Islamic custom demands that the dead are wrapped in blankets -- a practice which is usually prohibited by German cemetery regulations. In some fortunate cases, these regulations were changed. It makes sense to bury the dead according to religious custom, not according to municipal small print.
A basic right, after all, is a basic right
When it comes to circumcision, fundamental rights collide: the human right to bodily integrity and the human right to freedom of religion. I tend to side with the children: I believe the doctors and psychologists whose opinions and studies I've read over the past weeks.
When making a decision about the legality of circumcision, we cannot simply weigh freedom of religion against bodily integrity and proclaim that the combination of individualistic and institutional protections of religion trumps other concerns.
A basic right, after all, is a basic right. But it's important for public discourse to recognize the importance of both aspects of freedom of religion: in Turkey we might see individualistic freedom, but the country is a far cry removed from the institutional protection of religious diversity. Non-Islamic faiths aren't allowed to own land or real estate, and the education of non-Muslim clerics is impossible. Both constitute elementary interferences into Western notions of freedom of religion and the autonomy of religious organizations from the state.
The historically conditioned relationship between state and church in the West demands that the state does not interfere with the internal spiritual and administrative workings of the church. Non-interference used to be limited to Christian denominations but has now expanded to include all practicing religious communities. But that hasn't stopped discussions about which religious practices must be tolerated by secular society. Can we, for example, prohibit Islamic or Mormon polygamy with reference to our constitution and to the Christian ideal of the nuclear family?
Certain forms of religious practice can be prohibited
We can. A constitution trumps the alleged proclamations of religious prophets or deities. Religious groups might demand that we must "listen to God rather than to one's fellow men," but the constitutional state is bound by a radical immanence. It is designed -- some would say, condemned -- to regulate societal interactions here and now. Its proclamations are binding but not all-encompassing. The omniscient and omnipresent God isn't replaced by an omniscient and omnipresent state, which seeks to pacify through the promise of prosperity. Liberal society demands that we grant each individual the right to cultivate beliefs that go beyond our material world. We seek to liberate the individual, so that he or she can emancipate himself or herself from the state and its demands.
Certain forms of religious practice can be prohibited, especially now, when we are actively re-negotiating the relationship between church and state. This is true (to varying degrees) for all Western states. To an extent, the re-negotiation is even driven by religious authorities. When Benedict XVI visited Germany in 2011, he reiterated his call for a further separation of church and state. The debate hasn't withered away since, and is fought with the usual controversy within the church and in public forums.
Our legislative has the right -- some would say, the duty -- to protect the bodily integrity of the child, and their physical and mental health, instead of seeing them disappear behind the veil of a traditional, but archaic religious ritual. Seen in this light, bodily integrity trumps freedom of religion. We must not fall into the trap of tying the liturgical and cultish side of religion to specific rites and practices. Religions, too, can change. They, too, know what development means.
At the same time, rites form an integral part of the internal self-assurance mechanisms of religions. But the act of baptism, for example, does not jeopardize the physical or mental health of the child, and thus cannot be equated with circumcision. What is comparable is the religious dimension of both practices: monotheistic religions regard them as the commitment or ascension to their community of faith, which was formed over centuries or millennia. The adhesive power of religion is stronger than a national passport or patriotic inclinations could ever be.
The controversy has picked up steam
A solution can only come from within the Jewish and Muslim communities. But this will take time -- rightly so. We might be able to decide on political reforms or the abolition of the military draft on a sunny afternoon (even after they have been part of the political bedrock for half a century), but we cannot undo millennia of religious traditions in a single legislative session. Religion follows a different logic than politics or zeitgeist.
Within religious communities, the controversy has picked up steam. If it resulted in authoritative statements of religious authorities, if it resulted in the freedom to choose for or against circumcision, the right of the child to bodily integrity and the right of the community to exercise freedom of religion would be reconciled. It would be the ideal outcome, and a sign of what changing religions can achieve in contemporary times.
The legislative branch and society must also articulate their position and affirm the right of the child to bodily integrity. On a constitutional level, this right trumps freedom of religion. But unfortunately, that dispute cannot presently be resolved through a judgment of Solomon.
Alexander Görlach, The European-Magazine