German Court rules religious circumcision a crime

[eyl]

No, that paragraph was about the "Germans" Broomstick referenced as fleeing to the USA and holding a grudge over 300 years later.

I was talking about the paragraph's point in relation to the thread as a whole.

Sure. But my point was that when faced with having no choice, Judaism adapts to the challenges raised to it. I don't think anybody disputed they can move and I suspect some might, but I bet the vast, vast majority will just revert to other practices like just pricking the penis.

I think you're underestimating the opposition to complying with the ban, especially among religious or "semireligious" Jews.

Bear in mind also that, as was previously mentioned, circumcision is effectively a Jewish tribal marking. Attempts to ban it (regardless of the actual reason) have a resonance, let's call it (can't think of a better word in English) to historical attempts to ban Judaism.

No, I don't think that it is. Let us not forget that it has to be a significant injury or harm. I doubt this will fall under the degree.

Wouldn't that basically be up to the judge in question's subjective opinion? You could make the case that circumcision isn't "a significant injury or harm", after all.

[D.Turtle]

Wouldn't that basically be up to the judge in question's subjective opinion? You could make the case that circumcision isn't "a significant injury or harm", after all.

Umm, that is what this court case was about. The court decided that circumcision is significant injury or harm.

[Thanas]

No, that paragraph was about the "Germans" Broomstick referenced as fleeing to the USA and holding a grudge over 300 years later.

I was talking about the paragraph's point in relation to the thread as a whole.

Does it have one? If so, which one?

I think you're underestimating the opposition to complying with the ban, especially among religious or "semireligious" Jews.

It has been over two weeks since the ruling was passed. Pray tell, where is this huge opposition and/or exodus? It barely even registers in the papers anymore.

Bear in mind also that, as was previously mentioned, circumcision is effectively a Jewish tribal marking. Attempts to ban it (regardless of the actual reason) have a resonance, let's call it (can't think of a better word in English) to historical attempts to ban Judaism.

Apparently the resonance is not big enough for people to actually leave Germany.

Wouldn't that basically be up to the judge in question's subjective opinion? You could make the case that circumcision isn't "a significant injury or harm", after all.

Why could you? it involves lobbing off parts of the body, never to be reattached. That and the pain it causes is in itself such a thing. I agree that it is a subjective opinion in the end, but I would be interested as in how you can argue that circumcision in itself does not cause a lot of pain and leaves body parts permanently detached from the body.

[eyl]

Umm, that is what this court case was about. The court decided that circumcision is significant injury or harm.

And it didn't set a lower limit to "harm", which is the point.

I think you're underestimating the opposition to complying with the ban, especially among religious or "semireligious" Jews.

It has been over two weeks since the ruling was passed. Pray tell, where is this huge opposition and/or exodus? It barely even registers in the papers anymore.

And as I understand, there are discussions between German legislators and religious leaders regarding ways to prevent such a ban. I never said leaving ould be their first choice, just what it could come to in the end.

Apparently the resonance is not big enough for people to actually leave Germany.

It contributes to the antagonism towards such a ban, is what I'm saying.

Why could you? it involves lobbing off parts of the body, never to be reattached. That and the pain it causes is in itself such a thing. I agree that it is a subjective opinion in the end, but I would be interested as in how you can argue that circumcision in itself does not cause a lot of pain and leaves body parts permanently detached from the body.

It involves removing a bit of skin. "body part" is a bit overly dramatic. And again, no one has set a lower limit to that harm, so scarring that same "body part" could likewise be seen as bannable. Unless you want to define a principle determining why one is significant and the other not?

[eyl]

Ghetto edit:

It occurs to me the question should be asked in reverse. In the past two weeks, have Jews stopped circumcisions?

[D.Turtle]

And it didn't set a lower limit to "harm", which is the point.

Ah, now I understand what you meant.

It has been over two weeks since the ruling was passed. Pray tell, where is this huge opposition and/or exodus? It barely even registers in the papers anymore.

Thats not true. Looking at the websites of various newspapers its usually one of the top topics under politics or German politics.

I'll just post the article from the international Spiegel version on this topic - including comments from various newspapers.

Circumcision Ruling Is 'a Shameful Farce for Germany'

German religious leaders claim that Jewish life will not be possible in the country if a court ruling on circumcision sets a legal precedent.

A controversial German court ruling on circumcision has outraged Muslim and Jewish groups in Germany and abroad. German commentators say the decision was misguided and could have devastating consequences.

The ruling came nearly two weeks ago, but the reaction is getting increasingly vocal. At a meeting of the orthodox Conference of European Rabbis in Berlin on Thursday, the group's head warned that a June 26 court decision making a case of circumcision a crime had been the "worst attack on Jewish life since the Holocaust". Rabbi Pinchas Goldschmidt also threatened that Jews might leave Germany if the country doesn't move to provide legal certainty that the tradition of circumcision can continue.

In a case involving a Muslim boy, the Cologne regional court ruled that the doctor performing the circumcision had committed bodily injury to a child, thus criminalizing the act. The ruling has no legal bearing on other cases, but some fear it could be used as a precedent by other courts.

The ruling has outraged not only the Muslim community, but also Jewish groups. In the postwar years, the Jewish community in Germany has painstakingly rebuilt itself to the point that it has been flourishing recently. But many view the ruling as a direct attack on their religious freedom.

Germany's leading Jewish body, the Central Council of Jews in Germany, has called for a clarification of the country's confusing legal situation. "Circumcision is absolutely elementary for every Jew," the organization's president, Dieter Graumann, said in an interview with the Rheinische Post newspaper. He warned that if the Cologne ruling were to become the legal basis, that "Jewish life in Germany might ultimately no longer be possible."

Germany's parliament is currently on summer recess, but politicians are already discussing the possibility of making changes to German law to ensure that the religious rite of circumcision can continue here.

'Circumcisions Must Be Possible without Punishment'

"We know that a swift solution is necessary and that it can't be put off," said Steffen Seibert, Chancellor Angela Merkel's spokesman. "Circumcisions that are carried out responsibly must be possible in this country without punishment." However, Seibert did not comment to reporters on whether a new law would be created ensuring the legality of circumcision, something that has been demanded by the opposition Greens and center-left Social Democratic Party. A spokeswoman for Germany's Justice Ministry also declined to comment.

In addition to Jewish and Muslim groups in Germany, the ruling has also drawn strong condemnation from the state of Israel. Germany's ambassador to the country, Andreas Michaelis, recently sought to ease concerns by writing a letter to Knesset President Reuven Rivlin. In it, he stated: "The decision is an isolated case that is not legally binding for other courts."

In recent days, the ruling has drawn nearly universal criticism in the press. On editorial pages on Friday, most newspapers writing on the topic call for the German government to move to provide clarity for religious groups that their freedoms will be protected.

Center-left Süddeutsche Zeitung writes:

"It is understandable when religious leaders protest because they feel their faith and their rituals are being ridiculed. The ruling puts circumcision in a category that also includes beatings. The circumcised child is put on the same level as one who has been beaten up. Beatings belittle people and make a child the object of anger of the person beating it. But circumcision is an act of recognition: It makes the child the member of a faith and represents entry into a community. Some Christians and atheists may smirk over that, but Christians also don't have to celebrate the 'Feast of the Circumcision of Christ' on Jan. 1 if they don't want to. … The Cologne court's ruling was rash and the loud outcry is justified."

The regional Saarbrücker Zeitung writes:

"Under no circumstances can the circumcision ritual … of Judaism be reduced to an inherited, archaic religious law. To an overwhelming majority of secular Jews, it is viewed as much more of a foundation that is indispensable for establishing identity. Viewed in this context, there is no exaggeration in the objection that this legal decision makes Jewish -- as well as Muslim -- life in Germany impossible. … Another court, presumably (the Federal Constitutional Court in) Karlsruhe, will have to re-weigh the issues. If it affirms the (lower court's) ban, it would be unique in the entire world. It would do so in the full awareness that it risks triggering an exodus of Jews and Muslims (from Germany). One can't imagine what the consequences of this would be for Germany."

Conservative Die Welt writes:

"The circumcision of Jewish boys on the eighth day after their birth is a foundation of the Jewish religion. If it is suspended through disregard for freedom of religion, then Jewish life in Germany will no longer be possible. For the first time since the end of the Third Reich, Jews would be forced to leave the country in order to be able to adhere to this mandate of the scriptures. If that happens, it would send out a message with disastrous political consequences."

"There are also other reasons that legal certainty in the interests of freedom of religion and faith under Article 4 of the German constitution be created. A ban on circumcision, be it Muslim or Jewish, is a manifestation of the increasing intolerance shown towards religious groups in the world. It has been almost palpable since 9/11. ... Intolerance can swell like a flood: If you don't dam it up, it will continue."

"The reference (in the ruling) to the bodily integrity of the child is also only a pretext. No judge would seek to take action against the vaccinations given to infants -- an action that, statistically, can lead to greater complications than circumcision. And the 'castration trauma' that some dinner table psychologists have dreamt up cannot be taken seriously either. It certainly can't be any greater than the emotional burden faced by an adolescent who cannot take part in Jewish festivities and be consecrated because he is not circumcised. The Cologne judges didn't think about that and they issued a ruling that is unprecedented in the Western world. It is a shameful farce for Germany."

The left-leaning Frankfurter Rundschau writes:

"The rabbis' worries are justified. As long as German jurisprudence is concerned with finding a balance between the legally protected right of religious freedom and the right of physical integrity, religious Jews and Muslims will see themselves as confronted by a climate of defamation. In these emotionally charged debates, there is more at play than just investigating a position of legal positivism. Jews and Muslims don't need any advice or cultural-historical treatises on their rituals. What they need is legal certainty. And establishing this is also the job of politicians."

The regional Hannoversche Allgemeine Zeitung writes:

"The decision of the Cologne-based court shouldn't be allowed to stand in this way, and there needs to be another judicial review. What is the signal that Cologne was sending out? Should religious Jews who want to circumcise their boys now use quack doctors or even go abroad? One would already like to see a trace of historical or cultural sensitivity from the courts. The decision offers the kind of material that could trigger cultural warfare, if it hasn't already begun."

(Emphasis mine)

[CJvR]

At a meeting of the orthodox Conference of European Rabbis in Berlin on Thursday...
The ruling has outraged not only the Muslim community...
Germany's leading Jewish body, the Central Council of Jews in Germany...

Germany's parliament is currently on summer recess, but politicians are already discussing the possibility of making changes to German law to ensure that the religious rite of circumcision can continue here.

Pathetic, a bunch of bearded bastards with knives are pissed so the government is going to throw out the rights of it's citizens to buy political peace.

[tezunegari]

Pathetic, a bunch of bearded bastards with knives are pissed so the government is going to throw out the rights of it's citizens to buy political peace.

I wonder how many of these "bearded bastards" will yell in outrage when you tell them a story about female circumcision and the religious leaders who claim it to be a necessary part of their religion which they can't live without...

To me the whole problem boils down to the question:
Which is more important - right to life and physical integrity or undisturbed practice of religion?

Both are guaranteed in the Basic Constitutional Law of Germany (Grundgesetz). Intriguing though is that physical integrity is guaranteed in Article TWO (which includes reasonable restrictions on freedoms too) and religious freedom is in Article FOUR...

[AniThyng]

Pathetic, a bunch of bearded bastards with knives are pissed so the government is going to throw out the rights of it's citizens to buy political peace.

I wonder how many of these "bearded bastards" will yell in outrage when you tell them a story about female circumcision and the religious leaders who claim it to be a necessary part of their religion which they can't live without...

To me the whole problem boils down to the question:
Which is more important - right to life and physical integrity or undisturbed practice of religion?

Both are guaranteed in the Basic Constitutional Law of Germany (Grundgesetz). Intriguing though is that physical integrity is guaranteed in Article TWO (which includes reasonable restrictions on freedoms too) and religious freedom is in Article FOUR...

What are you implying? That article two supercedes article four? That because it comes first it was intended to be "more important"? What?

[Serafina]

Yeah, that's not how the Grundgesetz works.
The Grundrechte (basic rights) that are laid down in the first 19 articles are more important than the rest of it, which lays down how to form a government, what said government can do etc.
But other than that there is no hierarchy within the Grundgesetz, and having one would be silly anyway.

Generally one basic right is now allowed to infringe upon another.
If the two are in mutual conflict, you have to determine which infringement is more severe. That's a job for the court system, especially the Bundesverfassungsgericht (Supreme Court).

This case is pretty damn clear-cut, because even IF you argue that one right (religious freedom) clashes with another right (physical inviolability) here - and they don't - then the harm done by the infringement upon the latter is far more severe than the one upon the former (due to being irreversible etc.)

As i explained before, there is no conflict between two basic rights here because the basic right of freedom of religion does NOT allow parents to inflict their religion upon their children. The right of parents to raise their children as part of a religion stems from their right to raise their children, and that right certainly does NOT allow parents to harm their children, with a large amount of precedent behind it.
The article granting parents the basic right to raise their children even states that they can loose said right if they fail in their duties as parents or are a threat to the child, so we even have a highest-level law supporting that precedent.


Basically:
- A child has a basic right to freedom of religion
- Since it is not able to exercise that right until a certain age due to being unable to make such decisions and give consent, the parents can raise it religiously due to their basic right to raise it.
- This does NOT mean that the parents somehow take their childs religious freedom for themselves. The child still has it.
- First, the basic right to raise a child does not grant the right to harm a child.
- Second, the right to raise a child religiously does not grant the right to violate a childs religious freedom. This is evident in the right of a child to choose its religion once it turns 12, long before a parents basic right to raise their child vanishes when it turns adult at 18.

There are two ways you can argue against this
- You are like Hongi and see children as property of their parents, as beings without their own rights
- You think that freedom of religion allows you to violate other peoples basic rights.

[tezunegari]

What are you implying? That article two supercedes article four? That because it comes first it was intended to be "more important"? What?

I meant it as an observation that whoever created the Grundgesetz has put physical inviability before religious freedom. So I just wondered if the creators had a reason to do so.

Personally I think any list should start with the most important information and go down to the least important.

translated Grundgesetz

[Serafina]

Yeah, whatever you think about that has precisely zero legal weight.

[Simon_Jester]

This case is pretty damn clear-cut, because even IF you argue that one right (religious freedom) clashes with another right (physical inviolability) here - and they don't - then the harm done by the infringement upon the latter is far more severe than the one upon the former (due to being irreversible etc.)

A Jew might not see it that way, you know. There wouldn't even be a debate about this, except for this. You (and all the many like-minded non-Jews in Germany) see a circumcision ban as a harmless infringement on religious freedom. The Jews themselves think of circumcision as a pretty important thing, or they wouldn't have kept doing it for all these years. They might consider the harm done to their religion by a circumcision ban to be worse than the harm done to the infant by the circumcision itself.

For that matter, I don't think most Jews think of circumcision as being "harmed" at all- my impression is that there's no self-conscious sense of "damaged for God" in there.

[Batman]

A jew is welcome to leave if he/she doesn't like the way german law works. As Serafina mentioned above, their opinion has precisely zero legal weight.
Serafina has, in great detail, explained the way this works legally. That the Jews are highly likely to (yeah, I know, bad language) not like this is irrelevant.
Should we allow honour killings for the more extreme Muslims too? I mean it's an important part of their religion.
Yeah, extreme example, but the point is why should we make any exception because of religion? You don't like the fact that our laws don't allow for your antedeluvian customs, feel free to live elsewhere.

[Broomstick]

Should we allow honour killings for the more extreme Muslims too? I mean it's an important part of their religion.

Honor killings are not required by Islam. They stem from non-religous cultural tradition and custom, not the religion. Nor are they limited to Islam, the "custom" has been found in cultures scattered around the world. Brazil, for example, is predominantly Christian yet for centuries has imposed lesser or no penalties on men killing adulterous wives, and there's also a matter of homosexuals and transsexuals being murdered without repercussion. Honor killings in modern Muslims really stems more from pre-Islamic Arab culture than from Islam, and there are plenty of modern Muslims who don't engage in honor killing of their relatives. Religion is often used to justify honor killings, but none of the big monotheisms require it.

The comparison isn't good because there are no permanent body alterations required by Islam, whereas Judaism does require circumcision.

[Broomstick]

It has been over two weeks since the ruling was passed. Pray tell, where is this huge opposition and/or exodus? It barely even registers in the papers anymore.

The Jews most certainly are protesting - they will try to come to a legal accommodation first, but as noted in quotes by other posters the notion of leaving has already occurred to them.

As has also been noted, the court case is not a legal precedent for other courts in German. What I've seen reported indicates the Jews want some clarification and/or assurances they can continue the practice but until the matter is settled they don't seem to be migrating. Meanwhile, I can only presume the practice continues in Germany.

[SilverWingedSeraph]

Edit: Removed post to avoid dogpiling.

[Serafina]

The ruling not having any precedent simply means that you can't sue anyone based on the court ruling, and that german courts can't use the court ruling as a basis for their judgment.

But you CAN sue and rule based on the Constitution, and i can't imagine other courts not coming to the same conclusion as this one.
It also means that you can no longer plead ignorance to get away without punishment. So while circumcision is most likely ongoing, many practictioners probably hold it off for now lest they get into legal trouble.

[Broomstick]

Either that, or they've stopped having it done in hospitals and have gone back to doing it in private where getting dragged into court is less likely what with everyone involved being an accessory.

If it's been two weeks since the ruling then most certainly there have been illegal circumcisions because under Jewish law it must be done by the 8th day, no exceptions outside of life-threatening illness.

[Simon_Jester]

A jew is welcome to leave if he/she doesn't like the way german law works. As Serafina mentioned above, their opinion has precisely zero legal weight.

...That's not what she said. She said Tezunegari's opinion has precisely zero legal weight. And he (?) was the one saying something else. He said that because 'physical inviability (sic)' is #2 in the Grundgesetz, and religious freedom is #4, #2 is more important than #4 because it comes in order.

Which is really a rather silly way to set up a constitution, not least because you'd need to come up with a constitutional ranking system in advance. And it'd make constitutional law a very mindless, inflexible thing.

Yeah, extreme example, but the point is why should we make any exception because of religion? You don't like the fact that our laws don't allow for your antedeluvian customs, feel free to live elsewhere.

[shrugs]

If you want freedom of religion written out of your constitution, go ahead and lobby for it. Maybe that's the wave of the future.

But part of the argument being used against the decision is "this will turn tens of thousands of people into political refugees." I still feel very strange watching people here saying, essentially, "we don't care about that."

[Broomstick]

It seems to come down to two different viewpoints. One is that turning a couple hundred thousand people into criminals overnight might not be a good thing, it could be socially disruptive, it might not be enforceable, etc.

The other view seems to be tough shit, that's the law now, obey it or be punished (or get the hell out).

I kind of get the point with the second view - after all, a crime is a crime no matter how many people are committing it, right? But the first seems to take into account the practical problems with enforcing a sudden ban on a large population.

[Darth Wong]

If you want freedom of religion written out of your constitution, go ahead and lobby for it. Maybe that's the wave of the future.

Freedom of religion has always meant the freedom to believe, not necessarily the freedom to take any action your religion mandates. Orthodox Judaism, for example, mandates the use of violence against women who dress provocatively: something that Orthodox Jews in Israel have recently tried to actually do.

But part of the argument being used against the decision is "this will turn tens of thousands of people into political refugees." I still feel very strange watching people here saying, essentially, "we don't care about that."

They have a choice.

[Darth Wong]

It seems to come down to two different viewpoints. One is that turning a couple hundred thousand people into criminals overnight might not be a good thing, it could be socially disruptive, it might not be enforceable, etc.

The other view seems to be tough shit, that's the law now, obey it or be punished (or get the hell out).

I kind of get the point with the second view - after all, a crime is a crime no matter how many people are committing it, right? But the first seems to take into account the practical problems with enforcing a sudden ban on a large population.

The law would not be retroactive (criminal laws generally aren't), so how could it suddenly turn hundreds of thousands of people into criminals overnight?

If people really want some kind of compromise, they could have a phase-in period where it's only a non-prison offense, ie- you just have to pay a huge fine. If it's really that important to Jews, they can just pay the fine. If it's not important enough to pay the fine, then that would be ... an interesting piece of information.

[Broomstick]

It seems to come down to two different viewpoints. One is that turning a couple hundred thousand people into criminals overnight might not be a good thing, it could be socially disruptive, it might not be enforceable, etc.

The other view seems to be tough shit, that's the law now, obey it or be punished (or get the hell out).

I kind of get the point with the second view - after all, a crime is a crime no matter how many people are committing it, right? But the first seems to take into account the practical problems with enforcing a sudden ban on a large population.

The law would not be retroactive (criminal laws generally aren't), so how could it suddenly turn hundreds of thousands of people into criminals overnight?

If your reasonably sure the majority of those impacted aren't going to quit overnight you essentially turn them all into criminals.

For example - if (hypothetically) the US outlawed all use of tobacco as of, say, August 1, 2012 do you actually think a majority of nicotine addicts would have quit by that date? If they don't, what do you do? Ignore widespread disregard of the law? Round them up by the tens/hundreds of thousands?

If people really want some kind of compromise, they could have a phase-in period where it's only a non-prison offense, ie- you just have to pay a huge fine. If it's really that important to Jews, they can just pay the fine. If it's not important enough to pay the fine, then that would be ... an interesting piece of information.

That's certainly one "solution". Another mentioned is allowing a ritual nick and small scar on the foreskin but judging by how it played out in this thread not everyone will get on board with that.

A compromise depends as much on the willingness of the gentiles to give a little as on the flexibility of the Jews. If the gentiles come down with zero tolerance and no compromise whatsoever that's not going to work well. I don't see much willingness to yield on the part of the gentile Germans (in general - there are always individual exceptions). Given that there are something like a quarter million Jews in Germany these days (tops) and a total population of something like 81 million I have a feeling the mainstream German culture is going to be the clear winner here. Minorities comprising less than 1% of the population generally don't get much consideration. Due to recent history Jews in Germany probably get more attention and care than they would otherwise, but in a major conflict of culture in Germany the Germans will win.

Those who value tolerance of varied religious practices would do well to remember that that sentiment is not universal. Freedom of belief does not automatically confer equal freedom to practice those beliefs.

I suspect most Jews would just pay the fine, but you never know for sure until it plays out in the real world.

[D.Turtle]

If your reasonably sure the majority of those impacted aren't going to quit overnight you essentially turn them all into criminals.

For example - if (hypothetically) the US outlawed all use of tobacco as of, say, August 1, 2012 do you actually think a majority of nicotine addicts would have quit by that date? If they don't, what do you do? Ignore widespread disregard of the law? Round them up by the tens/hundreds of thousands?

This argument makes no sense at all. People who were circumcized or had circumcisions done in the past are not affected at all. Circumcision is a one-time thing done shortly after birth - and not something done constantly (like smoking).

There are roughly one hundred thousand jews as members of jewish organizations. Looking at birth rates, etc that means there are less than a thousand babies born from practicing jews each year.

You're discrediting yourself by blowing this all out of proportion.