Cutting Religious Freedom Some Slack

5 Oct

The UK Constitutional Law Blog prints an article on the US perspective on the judgement by a court in Cologne Germany in effect banning circumcision as a crime against children (I emphasise ‘in effect’ – but I believe that a fair summary – the doctor was acquitted on the facts). Andrew Hammell describes it as looking “weird” (to US eyes), cites the US Supreme Court Amish Rights case of Wisconsin v Yoder (1972) (USSC), and suggests that a different conception of liberty is involved – that the European one emphasises “social cohesion” more.

This writer recommends Adam Wagner’s careful articles on the UK Human Rights Blog as background reading: start here for his analysis (and read to the end for his link to a translation of the German judgement) and check a contrasting view in The Guardian here. (See here for the latest from Germany)

With respect to Mr Hammell, the matter is not so simple. Circumcision is understood to be vital as a matter of Jewish religious identity, and the Bible (the Old Testament, the Torah, by whichever name one knows it) lays down that (timing, etc) in some detail. However, it is also difficult to imagine an infant consenting if asked (could they understand the question ?) and the alteration (to use a neutral term) to their body is permanent and concerns a sensitive (no pun intended) area.

If one wishes the practice to continue, then a stronger justification than comments about ‘different ideas of freedom’ is needed to persuade those less respectful of faith. Otherwise the ‘physical harm to a child’ narrative will see it banned. Adam Wagner is surely right that a ban is politically not going to happen in the UK soon, but it might be worth getting the arguments worked out now. It seems to this writer that the Yoder case that Hammell cites contains much interesting material from the Supreme Court that could be used (rightly or wrongly) to question an emphasis exclusively on the physical aspect, even though the case itself is about schooling. Perhaps … but the comments in The Guardian and elsewhere (see Hammell’s article) are strikingly negative towards the practice, so it will be interesting to see where the debate goes, amidst the current ‘freedom of religion’ discussions.


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