Two Cases of Church-State Conflict

Two unrelated issues caught my attention recently, both because they put in bold relief the culture war conflict between church and state.  One took place in Germany, the other is unfolding here in the United States.

In Cologne, Germany, earlier this year a four-year-old Muslim boy was being circumcised by a Muslim doctor, in a routine procedure practiced by Muslims and Jews for centuries as a way of marking their boys as members of the community, when something went wrong and the boy needed to be rushed to a hospital because he was bleeding excessively.

At the hospital, the tending physician, either clueless about the religious practice, or possibly afraid failure to report this unnecessary surgery on healthy flesh would get him into professional difficulty, called in authorities.  The circumcizing doctor was charged with causing “grievous bodily harm.” 

Charges were quickly dismissed on the grounds that the procedure was done with parental consent.  The district court judge commented that not only was this a well-established religious tradition, but that in America and elsewhere circumcisions were routinely performed for hygienic reasons.

The story didn’t end there.  The prosecution took the case to the state court, which overruled the lower regional court’s decision, rejecting the arguments that failure to circumcize would make the child an outsider in his community and that the parents were acting with the child’s best interests in mind. 

Although such cases have come up before, (see here under “Germany”), this case has started a church-state controversy where one didn’t exist before, and with some serious consequences, given the history of Jews in Germany. 

The intellectual and political philosophical question, if you can lift it out from its real life context, is which should take precedent, the law and practices of the smaller unit, the individual/tribe/community as expressed in religious terms, or the highest law of the collective unit, the state, as articulated in the Constitution?  In Germany, it is the Constitution (known as the Grundgesetz, or “Basic Law”), as well as the Universal Declaration of Human Rights, which critics of the practice of circumcision refer to when speaking in terms of rights of children and “bodily integrity.”  Assaults on the body have been illegal in Germany since its founding as a modern state with a constitution in 1871, but this is the first time circumcision has been seriously challenged as an assault on the body.

You can imagine the nervous reactions all over the place.  Germany has spent over half a century putting itself right again with the Jews after the Holocaust, and has had moderate to considerable success in making them welcome in Germany once more.  Now, Jews are feeling as if the rug has been pulled out from under them and are joining with Muslims to ask the question, “Is there room for us in this country?”  Chancellor Angela Merkel spoke up in defence of the traditional practice and complained the controversy was making Germany look idiotic in the eyes of the world – as well as anti-semitic.  Talk shows are full of debates.   Finally, after a four-month moratorium on the practice when even Jewish Hospital in Berlin suspended the practice, the Bundestag finally pushed through a bill legalizing circumcision once more.   Most people are breathing a sigh of relief.

All the while this controversy was raging, here in the U.S., in the run-up to the coming November election, the Republicans met in Tampa to nominate their candidate and to establish their party platform.  Part of that platform, to the dismay of the majority of Americans, is a policy supporting an all-out ban on abortion, with no exceptions for rape or incest.  Same church-state issue, but with much more severe consequences.

In Germany, the clash between traditional religion and modern progressive values was settled with some common-sense quick action on the part of government.  Here in the U.S., the Republican Party claims it is for limited government, but would use government to remove women's rights over their own body.  A sword of Damocles hangs over them as they await the outcome of the election.  Will we, can we, possibly, roll back the rights of women to this dark place?  

Adding insult to injury, the Republicans, led by the vice-presidential candidate as well as many others, are urging what they are calling a “Personhood Amendment.”  They want to establish in law that a fertilized egg must be considered a person.  That would, of course, make abortion equivalent to homicide.  It would also put an end to in vitro fertilization as well, since that process involves fertilizing more eggs than can be used ultimately, in order to assure that some will be suitable for transplanting.  There will be no way of disposing of those fertilized eggs.

As Jon Stewart satirically noted recently, in America, when you put those policies side by side what you see, in effect, is a government saying to some women, “I know you want a child, but you can’t have one.”  And to others, “I know you don’t want a child, but you must have one.”

Both issues are ongoing.  In time, I suspect those opposing circumcision will regroup and the new law will be challenged. Germany may be at the vanguard of the battle over circumcision, but other countries – Australia, Finland, Norway, South Africa, Sweden and other places have imposed restrictions and at least laid the ground for stronger ways to ban the practice.  And as more people become aware that those who see the practice as barbaric actually includes Jewish reformers, it might well go the route of same-sex marriage in America, where the once sharp division between homophobic religion on the one hand and non-homophobic secularism on the other is giving way.  Today, even evangelicals and the majority of Roman Catholics approve of full civil rights for lgbt people.  If religious Jews and Muslims seeking ways to bring their religious practices more in tune with modern humanist values, there may be room for adjustment there, as well.

But while the two issues both help map out the extent of the church-state conflict, they are not parallel in terms of weight.  Most Jews and Muslims want their boys circumcised.  Most adults will tell you they are glad it happened.  Opponents are working with an abstract notion – bodily integrity – against a lived reality in which their arguments still sound silly.  This may not always be the case, but this is where we are today.  A victory of tradition will mean boys continue to lose their foreskin.  They can live with that.

On the other hand, forcing a woman to have a child by her rapist is seen as unspeakable cruelty by most people of compassion.  The abstract in this case – that life begins at conception – also fails to stand up against lived reality.  Only this time it’s not a few progressives in Germany at the vanguard calling the shots, the kind of people in favor of banning plastic bags and smoking.  This time, in America, it’s members of a patriarchal mindset seeking to bring back the dark ages for women. 

Unfortunately, America no longer has a functioning democracy.  The patriarchs have big bucks, and they can buy a whole lot more television ads than the other side.  We watched as the broken electoral system put George Bush in power, the country went to war on a lie and the economy tanked.

The question now is are we still on the way down?

We’ve already sold ourselves out.  How many billions are being spent to put on this election?

A Republican president would appoint more conservatives to the Supreme Court, and the overturn of Roe v. Wade would be in sight.

How I wish all we had to worry about was a little bit of flesh.