In June 2012, a court in Cologne, Germany ruled that the circumcision of boys should be considered a prosecutable physical assault. In a case involving a four-year-old Muslim boy, the judges declared that the permanent physical alteration of any part of the body infringes a child’s right to decide his beliefs for himself. The verdict against the doctor who had performed the procedure stated that neither the rights of parents nor the right to religious liberty could justify “serious and irreversible interference with physical integrity.”
Human-rights advocates, medical associations, and many legal experts in Germany supported the decision. For Holm Putzke, a professor of criminal law at the University of Passau who had long argued for a ban on non-medical circumcision, the ruling was a particularly hopeful sign for the future, one that, “in the best case, [could] lead the religions concerned to change their mentality when it comes to respecting children’s fundamental rights.” Another leading expert called for a national discussion on “how much religiously-motivated violence against children a society is ready to tolerate.”
To be sure, the ruling also met with protests, mainly on the part of practicing Jews, Muslims, and Christians. For the first two groups especially, circumcision is a basic element of identity and a tradition that strengthens communal bonds but most of all, in the words of the American political theorist William Galston, “a God-given obligation, the key to and symbol of membership in an ancient and worthy community.”
Jews in Germany have adhered to this commandment, which is performed on the eighth day after birth, for some 1,700 years; Cologne itself had a synagogue at least as early as 321 CE, when Constantine the Great ruled the city as part of the Roman empire, well before the ancestors of most of the city’s current inhabitants had settled on German soil. In Islam, although there are variations in the age at which the rite is performed—for some it is as early as the seventh day after birth, for others as late as puberty—circumcision has likewise been a religious norm from the start.
For Jews and Muslims, therefore, if a government bans circumcision, it is in essence banning the practice of their religion.
Although German lawmakers would soon override the Cologne ruling—in December 2012, legislation was passed explicitly permitting parents the right to have their boys circumcised—the issue is unlikely to disappear given the growing opposition to the practice among Germany’s general population.
And not just there. The Cologne ruling produced ripple effects elsewhere in the German-speaking world. In light of it, two hospitals in Switzerland announced that they would temporarily stop performing circumcisions altogether. In Austria, the governor of Vorarlberg province ordered state-run hospitals to cease the procedure except for health reasons until the legal situation was clarified.
Beyond these locales, the episode in Germany marked just another step forward in a growing trend across Northern Europe, where an “intactivist” movement has been gaining momentum. A 2013 poll in the United Kingdom showed almost two-fifths of the population favoring a ban on non-medical circumcision. A number of other countries have debated outlawing the practice or at least requiring medical supervision of all circumcisions (as Sweden has done since 2001 and Norway since 2014). According to Anne Lindboe, Norway’s ombudsman for children, “With good information about risk, pain, and the lack of health benefits of [circumcision], I think parents from minorities would voluntarily abstain from circumcising children.” In its place, she charitably proposed that Jews and Muslims enact a symbolic, non-surgical ritual—as if the underlying issue were one of their collective ignorance of modern medicine, a deficiency to be overcome by means of a bit of symbolic play-acting.
More drastically, a bill was introduced this year in Iceland’s parliament not only to ban circumcision on non-medical grounds but to impose a six-year prison term on anyone who removed “part or all of the [child’s] sexual organs.” According to Silja Dögg Gunnarsdóttir, the Progressive-party parliamentarian who introduced the bill, the central issue is “children’s rights, not . . . freedom of belief.”
More virulent themes, themselves suggestive of deeper motivations, have also been mobilized in condemnation of the practice. Thus, one of Denmark’s most prestigious newspapers published an article referring to “black-clad men” who torture and mutilate babies in fulfillment of a barbaric custom. Similarly, a cartoon in a Norwegian newspaper pictured law-enforcement officers questioning a rabbi who holds a religious book while stabbing a baby in the head with a devil’s pitchfork and a woman holding a bloodied religious book while cutting off the child’s toe. The woman protests: “Mistreating? No, this is tradition, an important part of our belief!”
No less loaded sentiments, possibly voiced in ignorance or cultural blindness, can occasionally be spotted lurking behind, or obtruding from, official pronouncements. In October 2013, a resolution on “Children’s Right to Physical Integrity” was passed resoundingly by the Parliamentary Assembly of the Council of Europe (PACE). The resolution itself was based on a report prepared by PACE’s Committee on Social Affairs, Health, and Sustainable Development, which held that “circumcision applied to young boys is clearly a human-rights violation” since it permanently changes a child’s physical integrity at an age when he is unable to give a well-informed consent. The committee’s rapporteur, self-described as “a children’s-rights activist,” added that arguments in favor of the practice are “purely serving the adults who wish to avoid a confrontation with the ‘dark side’ of their own religion, traditions, and, finally, identity” (emphasis added).
A Hierarchy of Rights
In parsing these various statements and the attitudes behind them, it’s critical to understand the cultural and legal background against which they play out. Almost uniformly, opponents of circumcision appeal to a single standard of judgment—namely, the standard of human rights. That being the case, in what follows we need to shift our focus to the concept of human rights itself, and in particular to see how that concept is interpreted and applied by different groups, cultures, and societies, with, inevitably, certain rights prioritized over others—a seemingly theoretical exercise but one in which the debate over circumcision figures prominently.
For the Icelandic parliamentarian who introduced the bill criminalizing neonatal circumcision, the priorities are starkly clear: “everyone has the right to believe in what he wants,” she said flatly, but “the rights of children come above the right to believe.”
As it happens, this statement is based on the false assumption that only religious belief qualifies as a human right, and not religious practice—an error that bedevils virtually every discussion not only of circumcision but of the nature of religious liberty in general. But, putting that aside for the moment, the parliamentarian’s statement well captures the debate between those, like proponents of the ban on circumcision, who raise the banner of individual rights against those who believe that religious or communal norms ought to matter at least as much if not more. Both sides claim their position is backed both by law and by human-rights conventions.
For instance, many anti-circumcision activists point to Article 5 of the Universal Declaration of Human Rights (UDHR), which states that “no one shall be subjected to torture or to cruel, inhuman, or degrading treatment or punishment”; for these activists, circumcision qualifies as just such a form of cruel and inhuman treatment. But supporters of circumcision also point to the same declaration, with its strong backing for religious freedom and the right of families to decide how to raise their children. Article 18 states:
[E]veryone has the right to freedom of thought, conscience and religion; this right includes . . . freedom, either alone or in community with others, and in public or private, to manifest his religion or belief in teaching, practice, worship, and observance.
The word “practice” would seem to include circumcision.
Nor is this the only source of tension between the sides. Western public authorities have greatly expanded the definition of what can legitimately be considered “child abuse”—i.e, situations in which authorities can intervene to protect a child’s rights. In the case of outright sexual abuse, such interventions by the authorities are broadly supported across all groups. Disagreement arises when a government substitutes its own standards for those of the parent in areas such as levels of parental supervision, sex education, and religious practice; in these cases, what some may see as a parent’s prerogative or community right, others may see as an activity legitimating state action to protect a child’s individual rights.
This can happen even when both the family and the government share broadly similar values. But it is more likely to happen when they do not—as is often the case in a highly individualistic, secular society that contains within it one or more strongly religious groups, or similar groups with a strong sense of communal identity.
Unsurprisingly, in Western societies of this kind, and especially in Western Europe, opposition is building to certain longstanding religious practices, going so far as to cause some among the faithful to doubt their continued ability to live a religious life in their home country; indeed, significant numbers have begun either to consider the possibilities for them elsewhere or actually to pick up and move. Thus, alongside the efforts to ban circumcision in the name of children’s rights, campaigns have been mounted (successfully in Sweden, Switzerland, Norway, Poland, Denmark, and Iceland, moving forward in Holland and France) to ban kosher and/or halal slaughter in the name of animal rights; to abolish eternal cemeteries (in Belgium and Switzerland) in the name of environmental concerns; and to interfere in the operation of religious schools (in the UK and Belgium) in the name of non-discrimination.
European courts have forced a Belgian Jewish girls’ school to admit boys; ruled, on the basis of claimed risks to health and safety, against a nurse who wanted to wear a cross at work; and accepted the dismissal of a government employee who refused to perform same-sex civil partnerships. Sweepingly, the Council of Europe has declared that all states ought to “require religious leaders to take an unambiguous stand in favor of the precedence of human rights . . . over any religious principle.”
In the United States, generally and rightly considered a more hospitable home to religion, practices like circumcision are unlikely to be outlawed in the near future—although, as Jon Levenson acutely pointed out almost two decades ago, America, “a society undergoing a painful sorting-through of its own moral and cultural dispositions,” has hardly been immune to anti-circumcision fevers. And even here the state is increasingly seeking conformity with a hierarchy of rights centered on the principle of personal autonomy. Whereas once religion was protected on the grounds that the Constitution forbade the establishment of any law that infringed on religious duties if they were a matter of conscience that could be traced to sincerely held beliefs (cf. the Wisconsin v. Yoder case of 1972), in recent years the courts have protected religion only from discrimination that targets it directly.
Starting in the 1980s, for instance, the Supreme Court has allowed the government to prohibit religious activities if the specific prohibition at issue could be shown to be applicable to all citizens. On these grounds, it ruled in 1988 that the U.S. Forest Service could build a road on lands deemed sacred by Native Americans—even though an environmental assessment had recognized that the damage would be severe and irreparable and had proposed alternative routes.
The 2010 Affordable Care Act (that is, Obamacare) originally did not allow religious organizations to opt out of its across-the-board requirement that employers provide insurance coverage for the purchase of abortifacient drugs. Legal challenges ensued, and in one prominent case the Supreme Court overturned lower-court rulings against Little Sisters of the Poor on the grounds that a reasonable opt-out accommodation could be made. But despite an interim October 2017 rule issued by the Trump administration to allow for such voluntary accommodations, the issue still awaits judicial resolution.
Freedom of Religion vs. Freedom of Conscience
Although it should not be necessary, it’s no doubt useful to stipulate that no one is arguing for all religious practices to be condoned. No society or community should be able, in the name of freedom of religion, to prevent women from being protected from violent treatment, for example. But different societies will naturally have different standards that they wish to uphold: some societies will accept polygamy, while others ban it. That is why religious practices, and longstanding traditional customs that have taken on a religious flavor, are among the hardest issues to address within a human-rights framework: the large number of potential conflicts with non-believers, and the necessary tradeoffs with other rights, are highly complex and not easily reducible to simple either-or categories.
Yet this has hardly deterred those hostile to religion, including those who should know better, from jumping to dangerously sweeping conclusions. A representative example in the UK is John Grant McKenzie Laws, a former lord justice of the English Court of Appeal. Responding to a relationship counselor who had lost his job after raising objections to advising same-sex couples, Laws dismissively proclaimed: “In the eye of everyone save the believer, religious faith is necessarily subjective, being incommunicable by any kind of proof or evidence.” Moreover, he continued, the defense of any position whatsoever on purely religious grounds “is irrational, as preferring the subjective over the objective. . . . [I]t is also divisive, capricious, and arbitrary.”
It is thanks in part to prejudicial reasoning like this that freedom of religion is being reconfigured by judges, politicians, government officials, and political theorists to mean only freedom of worship and association, on a par with freedom of conscience and of political opinion. So narrow an understanding of faith ignores the communal and institutional components of religion, both of which have unfortunately little purchase in a society driven by an ethic of autonomy. But this understanding also, as we have seen, contravenes Article 18 of the Universal Declaration of Human Rights. And it has no grounding in the American Constitution—which hasn’t prevented American lawmakers, officials, and courts from espousing it.
The same turn of mind obstructs careful deliberation of the appropriate ways to govern liberal democratic societies increasingly defined by their diversity. Whereas once there was a widely-accepted dominant ethos in such relatively cohesive and homogeneous countries as the Netherlands, Norway, France, and, to a lesser extent, the United States, secularization and individualization have splintered the previous consensus—and at a dangerous moment, just as these countries have found themselves dealing with millions of recently arrived immigrants who not only do not share the once-common ethos but who also tend to place a much greater emphasis on the values of faith and community.
Deciding what limits to set on observant religious groups—with regard to marriage, divorce, female clothing, schooling, parent-child relationships, circumcision, and so on—requires a delicate touch. In societies increasingly governed by elites hostile to even their own religious heritage, that touch is little in evidence.
Religion and the Roots of Liberalism
This brings us to the deeper problem presented by the current debate over rights, a problem that goes to the heart of contemporary liberalism and that has its own bearing on the issue of circumcision.
Although many today would find it hard to believe, a strong case can be made that both democracy and liberalism were born from and nurtured by religion, and by the social institutions that religion helped produce. Many would find this hard to believe because modern political theory is often assumed to be the product of secularization and dissatisfaction with religion. But that is a misreading of history.
In reality, Christian scholars, energized by religious fervor, transformed political theory in the 16th and 17th centuries. Seeking to understand the institutions and practices of the perfect republic, many turned to the Hebrew Bible, from whose writings on the governance of ancient Israel they developed ideas about the legitimacy of democracy that would influence such thinkers as John Milton, James Harrington, and Thomas Hobbes. Later on, religious pluralism—based on the recognition that religious beliefs hold an essential place in each person’s life; that religion itself is of high value in any moral society; and that it is necessary in such a society to enable people of different beliefs to live together—became a building block of American and European democracy.
In his reflections on early-19th-century America, Alexis de Tocqueville observed that a successful democracy is not only founded on religious principles but positively requires a religious basis because of its unique capacity to “teach . . . citizens how to act in the wider interest, as well as for their own good.” As he admiringly put it in Democracy in America,
Religion in America takes no direct part in the government of society, but it must nevertheless be regarded as the foremost of the political institutions of that country; for if it does not impart a taste for freedom, it facilitates the use of free institutions. Indeed, it is in this same point of view that the inhabitants of the United States themselves look upon religious belief. I do not know whether all the Americans have a sincere faith in their religion; for who can search the human heart? But I am certain that they hold it to be indispensable to the maintenance of republican institutions. This opinion is not peculiar to a class of citizens or a party, but it belongs to the whole nation, and to every rank of society.
It is doubtful that any part of this quintessentially liberal vision holds true today. Many current human-rights causes may be based on modern liberal ideas, but they conflict with liberalism as originally conceived. The initial goal of classical liberalism was to promote freedom, equal rights, and tolerance, to protect a diversity of views, to prevent religious conflict, and to restrain government so as to not interfere in the choices made by individuals.
John Locke, considered the “father of classical liberalism,” supported religious toleration on the grounds that accepting diversity of opinion was crucial to maintaining peace and social order and avoiding “a narrowness of spirit on all sides.” Conflict and “miseries” were caused not by diverse opinions but by the lack of tolerance for those with different opinions and by the insatiable desire for domination.
Such thinking informed the Declaration of Independence, central to which is the idea that government is established by the people in order to secure their rights to life, liberty, and the pursuit of happiness. It works on a premise well described by the scholar Michael McConnell:
In contrast to both ancient and modern neo-liberal regimes, government is not charged with the promotion of the good life for its citizens. . . . Government must leave the definition of the good life to private institutions, of which family and church are the most conspicuous.
This same rationale continued to play a leading role in liberal thought into the 20th century. It can be seen in the work of such otherwise disparate figures as the proto-libertarian economist Ludwig von Mises, who emphasized repeatedly that liberalism “demands toleration for doctrines and opinions that it deems detrimental and ruinous to society and even for movements that it indefatigably combats,” and the pluralist moral philosopher Isaiah Berlin, for whom liberalism meant a tolerant modus vivendi among competing value systems.
In this light, it is worth asking whether the 21st-century construction of liberalism is not in fact a betrayal of liberalism’s foundational principles—or, to put it differently but no less accurately, whether, over time, liberalism has not become illiberal. For instead of promoting principles, institutions, and practices, including religious ones, that protect difference and allow as much space as possible for distinctions across individuals and groups, constrained only by some minimum standards and the need to ensure societal unity, liberalism has become a homogenizing agent that systematically seeks, in particular, to reduce the scope of “non-conforming” religious actors and practices.
Among such religious practices, ritual circumcision is a salient exemplar and, in consequence, a highly tempting target. And attacks on it are not occurring in isolation. They take their place as a brightly lit warning sign amid a broader set of accumulating threats to the liberal political order in Western countries.
The present essay is adapted from Seth Kaplan’s newly released book, Human Rights in Thick and Thin Societies (Cambridge), and appears here by permission of author and publisher.