Thursday, August 23, 2012
Free exercise of religion, cultural relativism, principled distinctions, and foreskins
A German rabbi is facing charges for performing a circumcision, less than two months after a Cologne court outraged Jews and Muslims by outlawing the procedure.
Rabbi David Goldberg has become the first rabbi to face possible legal action for performing the ritual after an unidentified doctor filed a criminal complaint against the spiritual leader, alleging "bodily harm" to the child involved, the Times of Israel reported.
The German equivalent to our Constitution and Bill of Rights — their "Basic Law" — contains sweeping language based upon, and apparently equivalent to, the Free Exercise Clause of our own revered First Amendment. Will it be interpreted to give Rabbi Goldberg a defense? And if not, how much more are we bothered by that specifically because this is happening in Germany?
Because I've been to law school, however, I have voices in my head which insist on complicating this issue even further. "What about so-called 'female circumcision' as practiced in some cultures? If the Free Exercise Clause, or its German counterpart, prevents the state from prosecuting Rabbi Goldberg for performing male circumcision, would it not also protect those engaging in 'female circumcision'?"
"But," my pre-law school ethical self retorts, "what they call 'female circumcision' is really just genital mutilation. It's not comparable."
"Po-TAY-to, po-TAH-to, Beldar," replies my inner law professor. "So say concerned citizens of San Francisco about male circumcision. Can these enlightened people from the City by the Bay be wrong?"
But if I can't eliminate those voices, I can at least hush them for a while: "Enough of the false equivalencies! I am comfortable that I can draw a principled distinction between these two things. I am confident that I am not guilty of hypocrisy in holding one to be a constitutionally protected liberty, and the other a barbaric and cruel practice inflicted to subordinate one gender to the other."
"Sez you," say the voices.
"Yes," I mutter to myself, "sez me, exactly. Yes, there are indeed cultures which promote genital mutilation of children. But mine doesn't, and shouldn't, and in my confident if ultimately somewhat subjective judgment, my culture is, as a consequence of that, better than it otherwise would be. Sez me."
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