Judge Kavanaugh's future record on religious liberty cases will likely resemble that of Justice Kennedy.
A medical doctor was recently acquitted of an assault charge by a German court for having circumcised a four-year old boy at the behest of his two Muslim parents.
The court acquitted the doctor, not because it deemed circumcision for non-medical reasons lawful, but only because it claimed that, until the ruling, the law in North Rhine Westphalia, Germany’s most populous state, had been unclear.
In future, there would be no more uncertainty after it declared:
‘The fundamental right of the child to bodily integrity outweigh[s] the fundamental rights of the parents.’
Understandably, the court ruling has not gone down too well among the several million Muslims resident in Germany, not to mention its several tens of thousands of Jews. Both groups regard it to be their religious duty to have their male offspring circumcised at an early age.
In the case of Jews, the mandatory age is eight days after birth. Among Muslims, the practice varies. A widely preferred age is at seven years, although some Muslims conduct circumcision on the seventh day after birth and others as late as puberty.
In support of the ruling, Professor Holm Putzke of the law department of University of Passau has said:
‘The ruling is enormously important above all for doctors because for the first time they have legal certainty.’
‘The court has, in contrast to many politicians, not allowed itself to be scared by the fear of being criticised as anti-Semitic or opposed to religion.
‘The decision could not only affect future legal rulings but in the best case it could lead to a change of consciousness among the affected religions when it comes to respecting the basic rights of children.’
It would be doing an injustice to the German law professor to suppose he had meant that the ruling is anti-Semitic and religiously intolerant, but that the court was right not to have been swayed by complaints it was.
Let us more charitably construe the professor as having only intended to claim that the court was right to disregard such charges about its ruling, because they were misplaced.
On this latter construal of his remark, what he would be claiming is that it was misplaced to believe the legal ban on non-therapeutic circumcisions anti-Semitic or religiously intolerant, because, even when they have been born to devout Muslim and Jewish parents, male children who are circumcised undergo irreversible physical mutilation before they can make an informed decision as to whether to, a mutilation that does them no benefit save in exceptional cases of medical need.
On this construction of Professor Putzke’s remark, it is purely out of concern for the ultimate wellbeing of the male offspring of Jews and Muslims that their circumcision should be legally prohibited before they come of an age when they can decide for themselves whether to have one.
What utter nonsense, if this is how we are supposed to understand Professor Putzke’s remarks in support of the ruling.
Are the immediate physical well-being and integrity of male children the only considerations of which it is reasonable for parents and society to take into account, when judging wherein their best interest and welfare resides? What about their long-term mental well-being?
Does Professor Putze, and the judges who made the decision, genuinely think the long-term welfare of the male offspring of Muslims and Jews is genuinely advanced by their being disconnected by the ban from the religious traditions of the households in which they grow up, and which they typically internalise as naturally as they do their mothers’ milk?
Does Professor Putzke genuinely think that children from these faith backgrounds are genuinely being helped, rather than harmed, by a law prohibiting their parents from fulfilling what they consider one of their most sacred religious duties?
Does he seriously think that, upon reaching the age of majority, otherwise devout Muslim and Jewish young men will be grateful to the German court for having obliged them to grow up otherwise than as their religion demands they should?
For make no mistake about it. The religious obligation that male children born of Jewish parents should undergo circumcision on the eighth day following their birth (or as soon after as is medically prudent) lies at very core of their Jewish identity, as does something similar in the case of the male offspring of Muslims. As is said in what used to be called the ‘Good Book’, but is increasingly being portrayed by western secular elites as an evil one:
‘And God said to Abraham, “As for you, you shall keep my covenant, you and your descendants. This is my covenant, which you shall keep, between me and you and your descendants after you: Every male among you shall be circumcised. You shall be circumcised in the flesh of your foreskins, and it shall be a sign of the covenant between me and you. He that is eight days old among you shall be circumcised: every male throughout your generations… So shall my covenant be in your flesh an everlasting covenant. Any uncircumcised male who is not circumcised in the flesh of his foreskin shall be cut of from his people; he has broken my covenant.”’ (Genesis 17: 9-14)
Can Professor Putzke seriously be expecting devout Jewish men (and Muslim men too for similar but not identical reasons) to consider themselves having been protected and benefited by being disconnected from the religions of their ancestors and parents, by having been obliged by law to remain uncircumcised until the religious damage done as a result has become too late to remedy?
Can Professor Putzke seriously expect anyone to believe that a legal prohibition on the circumcision of the male neonates of Jewish parentage and the sons of Muslims is not objectively anti-Semitic and religiously intolerant, however well-intentioned, but misguided, it might be?
And is Professor Putzke, and his fellow German jurists, really unaware of the multifarious health benefits that accrue to practically all males who undergo early circumcision that would justify the procedure on purely medical grounds, despite the known small risks that similarly attach to the routine vaccinations infants and children typically routinely have, as often as not as much on public health grounds as on grounds of their own health?
In sum, can Professor Putzke really be such a Putzke?