I have to admit, when Max Steinbeis wrote it down in German, he gave me pause: “Wenn dieses Urteil richtig wäre, dann müssten ausgerechnet deutsche Staatsanwälte (…) Juden verfolgen, weil sie tun, was Juden tun.” (Like Harry Mulisch already said when he was writing about the Holocaust and the Eichmann trial, sometimes quotes should simply be left in the original German.) But such Godwin-idiosyncrasies aside, I still think the analysis of the court in Cologne is correct.
To start with the most “cowardly” line of reasoning, i.e. the approach that avoids as much as possible the dangerous confluence of law and religion, I have to say that I do not see any principled way to distinguish between male and female circumcision. Apparently, the idea is that the male variety is much less serious, but that ignores the fact that FGM (female genital mutilation) is forbidden even in the “nick” version. (Cf. the discussion of Type IV FGM here.) Moreover, even if the premiss were granted, as long as we are still talking about surgical procedures and cutting off pieces of tissue, any attempt at proportionality analysis seems more than a little misplaced. What is certain is that if Type IV FGM is forbidden, there is no principled way to simultaneously allow male circumcision.
In desperation, one might even try to make a distinction based on the alleged difference in religious significance. This argument, too, is doomed because there is no question that many parents who would like to circumcise their daughters feel a religious as well as a cultural imperative for doing so, and we are not in the habit of disentangling the religious and non-religious cultural roots of other people’s beliefs. Just like we cannot get away with saying that a burqa is required only by Pashtun culture, not by any version of the Muslim religion, regardless of what these women themselves think, we cannot deny the religious meaning other people might attach to FGM.
The court in Cologne, of course, did not approach the problem this way. Instead, the judges faced the Constitutional issue head-on. The right of the inviolability of the person of art. 2 GG versus the right of parents to raise their children as they see fit of art. 6 GG, with the freedom of religion of art. 4 GG in the middle, given that it can go either way. (There is, after all, the freedom of the child not to have a religion forced upon them going one way and the right of the parents to pass on their religious beliefs to the next generation going the other.)
I agree with some of the guest-bloggers on the Verfassungsblog that the court takes some strange turns to resolve this tension, particularly by invoking statute law – like section 1631 Civil Code, which excludes corporal punishment from the rights that come with parental custody – to break the tie. The underlying argument is clear, though. We do not allow for a permanent solution to a temporary problem:
Zudem wird der Körper des Kindes durch die Beschneidung dauerhaft und irreparabel verändert. Diese Veränderung läuft dem Interesse des Kindes später selbst über seine Religionszugehörigkeit entscheiden zu können zuwider. Umgekehrt wird das Erziehungsrecht der Eltern nicht unzumutbar beeinträchtigt, wenn sie gehalten sind abzuwarten, ob sich der Knabe später, wenn er mündig ist, selbst für die Beschneidung als sichtbares Zeichen der Zugehörigkeit zum Islam entscheidet.
Circumcision, like my cousin’s ill-advised tattoo, is permanent. The problem here, on the other hand, will disappear on its own as the child grows older, and becomes able to decide for itself whether or not to be circumcised, whether or not to continue to adhere to the Jewish or Muslim faith. This seems to me to be by far the most obvious and straightforward way to resolve this clash of rights problem.
Now I realise that this answer is far from satisfactory for those more directly concerned than I. Not only will Jews and Muslims not like the outcome, the will also not like the way that I arrived at it. They will consider it overly abstract in its reasoning, with insufficient attention for the practical implications of such a verdict. They might bring up Hitler and the 614th commandment to conclude that “Liberalism constitutes the view from nowhere”, whatever that means. Christian scholars like the guest-bloggers on the Verfassungsblog, joined by Mrs. Merkel, will argue that circumcision should be legal, and that therefore it is. That is a flawed mode of reasoning, however. Not all things that should be legal, are, and vice versa. Instead, since time immemorial legal scholars have distinguished between the sui generis study of the lege lata and the moral, philosophical, sociological, psychological and economic studies of the lege ferenda. It is important not to confuse the two. (By the way, apologies for the way I mangled my Latin grammar there.) The value of the law as a tool for dispute resolution rests on its ability to offer dispassionate analysis. If lawyers, like John Nash, decide that they really prefer to decide on the outcome of their analysis first, they are in the wrong line of work.
If Germany wishes to avoid the situation where its prosecutors have to prosecute Jews for doing what Jews do, they can always change the Basic Law. Given the concept of the Margin of Appreciation used by the European Court for Human Rights, that should be more than enough. But until the Basic Law is amended to explicitly allow for male – but not female – circumcision, any court ruling that reads such a distinction into the Constitution is based on wishful thinking more than dispassionate legal analysis. And that would be a pity.
P.S. It occurs to me that there is one thing that I’ve not addressed: the horizontal effect of art. 2 GG. To what extent does that article require the state to criminalise murder, assault, etc.? Since I know next to nothing about the German case law on this question, I can do no better than admit this as one possible exception to my conclusion. I have no basis to dispute that the German courts might legitimately conclude that the German legislature need not criminalise all forms of assault.