German court bans circumcision of young boys

[Skwinty]

By the time it's possible to pull the foreskin back and it needs washing underneath, surely you're old enough to not have your mother bathe you?

ETA: I don't remember when this was possible on my own penis, but I seem to remember something about it normally being around 10-12.

12 years of peeing through the foreskin without proper washing doesn't sound very hygienic to me.

 

[Meadmaker]

And?

Therefore, when you make the decision to have an infant male circumcised or not, you are depriving him of a choice regardless of which decision you make. That child will grow up circumcised, or he will grow up uncircumcised, and he has absolutely zero choice in that matter.

Given that someone must make the choice, I am more inclined to give that choice to a parent than to the government. If you could convince me that there is strong evidence of health benefits on one side or the other, then I might be inclined to support government control over personal decisions, including the decision whether or not to go through puberty with a foreskin. From what I have read, the evidence is far from conclusive on this subject.


The error from the "pro choice" side of the argument is in equating the decision to live the rest of your life as circumcised or uncircumcised with the decision to live your entire life as circumcised or uncircumcised.

The manner in which you experience life as an adult is going to be strongly influenced by how you lived as a child. To the extent that something so insignificant as a foreskin influences your life, that is true of having a foreskin as well. It is unreasonable to pretend that by deferring the decision until age 18 that you have somehow increased the level of choice. Under the rules imposed by the German court that ban circumcision, no one in his jurisdiction will ever have the ability to grow up circumcised. That's a choice the judge has made, not the child, nor the 18 year old who grows up under that law.

 

[Christian Klippel]

It is unreasonable to pretend that by deferring the decision until age 18 that you have somehow increased the level of choice.

I'm sure you have a rational explanation for that, do you? Yes, humans have no choice to be born the way they are born. That is, with foreskin. However, having non-medical, unneeded surgery done on an infant or child changes that completely. Because then someone made the decision for the child, instead of having the child decide for him/herself later in life.

See, you can always decide to have whatever part of your body to be removed whenever you like. But you can't "un-remove" parts that have been removed from you while you were an infant or child, without any medical need to have them removed in the first place.

Greetings,

Chris

 

[Dave Rogers]

So, regardless of where you stand on the issue of whether circumcision ought to be legal, the "choice" argument just isn't one that makes any sense. Neither side is giving the infant, or the child, or the adolescent, a choice, and given that there was no choice at those stages of life, the adult has also been deprived of choice. At the age of 18, a male could decide he does not want a foreskin, but he cannot decide that it is his choice to have grown up with or without a foreskin.

Your argument is nonsensical. If you remove an infant's foreskin shortly after his birth, you deprive him of any choice at any time thereafter of whether to have or not to have a foreskin. If you don't, you leave him the choice at any time after reaching adulthood to have, or not to have, a foreskin from that time onwards, a choice he would have been deprived of if you had removed his foreskin previously. The latter is so obviously a greater level of choice that I find it inconceivable that anyone could honestly fail to realise it.

Dave

 

[jdp]

First of all, we are a secular state. As soon as the government tries to make special exemptions to our laws, our constitution and to the united nations convention on the rights of the children, just to accommodate some religious folks, it leaves the secular framework and moves into the realm of a theocratic framework. I'm pretty sure that the constitutional court of Germany will not allow for such a change, rightfully so.

Not knowing the legal landscape in Germany this point brings up one question, would there have to be someone to file the constitutional claim against the law? I believe here in the US, that is the case. The legislature could pass whatever law they want but to get to SCOTUS (and to ultimately be declared unconstitutional) someone has to actually challenge the law. Some laws are so blatently unconstitutional that some public interest group might challenge it right away. In this case, I wonder who that might be? Or is such a test automatic in Germany?

 

[ddt]

The manner in which you experience life as an adult is going to be strongly influenced by how you lived as a child. To the extent that something so insignificant as a foreskin influences your life, that is true of having a foreskin as well. It is unreasonable to pretend that by deferring the decision until age 18 that you have somehow increased the level of choice. Under the rules imposed by the German court that ban circumcision, no one in his jurisdiction will ever have the ability to grow up circumcised. That's a choice the judge has made, not the child, nor the 18 year old who grows up under that law.

Neither has anyone the "choice" to grow up with FGM, or with a stabbed-out eye - that surely changes your outlook on life - or removed toenails. And while you're a child, especially an infant, you're not capable of making that choice.

Or let's take a real-life analogy. Some deaf parents have had the idea that they'd deafen their children, so they'd also grow up as full members of the Deaf community. Would you also advocate that? I can understand their fears, up to a point, that their chldren would grow up in another, a hearing, culture, but forcing the child to do so? No, no, no. Raise your child with sign language as its mother tongue - that is near-automatic in such a situation - fine. But hindering the child at spoken communication and acquiring spoken language? No, a big no.

But humour me, and come up with real examples of adults who said they had preferred to grow up circumcised, or deafened.

 

[Darat]

Therefore, when you make the decision to have an infant male circumcised or not, you are depriving him of a choice regardless of which decision you make.

...snip...

You are starting from the premise that circumcision is OK, which is the point of contention in this thread, many of us do not think it is OK (unless for medical reasons).

 

[Lithrael]

12 years of peeing through the foreskin without proper washing doesn't sound very hygienic to me.

It doesn't work that way! The immature foreskin is (usually) attached to the glans.

If any curious moms in the US are reading this, you are not supposed to try to retract it when washing your kids.

Separation is a gradual process as the kid matures. Most doctors recommend letting the kid be the one to do all the fooling with it. If it's not fully retractable by his late teens you can go ask a doctor about it.

 

[Christian Klippel]

Not knowing the legal landscape in Germany this point brings up one question, would there have to be someone to file the constitutional claim against the law? I believe here in the US, that is the case. The legislature could pass whatever law they want but to get to SCOTUS (and to ultimately be declared unconstitutional) someone has to actually challenge the law. Some laws are so blatently unconstitutional that some public interest group might challenge it right away. In this case, I wonder who that might be? Or is such a test automatic in Germany?

No, they don't act by themselves. Someone has to initiate the whole procedure. You can check it out here. A more general overview of what they do is here under the link "The Task".

However, you can be 100% sure that there will be people calling that court if what Merkel proposes comes true. Not only from the people who oppose circumcision, but also from people who are not granted special rights because of their religion, like the african community in Germany with respect to FGM, for example.

Our current minister of justice, Sabine Leutheusser-Schnarrenberger, already noted that allowing special treatment, which goes against court ruling, constitution, human rights, etc., purely based on religious and/or cultural habits, will surely open up a really big and nasty can of worms. She especially mentioned FGM as well.

Greetings,

Chris

 

[ddt]

Not knowing the legal landscape in Germany this point brings up one question, would there have to be someone to file the constitutional claim against the law? I believe here in the US, that is the case. The legislature could pass whatever law they want but to get to SCOTUS (and to ultimately be declared unconstitutional) someone has to actually challenge the law. Some laws are so blatently unconstitutional that some public interest group might challenge it right away. In this case, I wonder who that might be? Or is such a test automatic in Germany?

Disclaimer: I'm not German, I've only looked at the relevant wiki pages in German. And after that, I'm a bit confused how this would have to be done in this specific case. Links are to the relevant German wiki pages.

Bundesverfassungsgericht (constitutional court)

A test is certainly not automatic. Someone has to challenge the law. The German constitutional court adjudicates a number of different kind of cases (summed up in section 8 of that page), of which three seem relevant to this case.

1. Verfassungsbeschwerde

When someone is injured in their constitutional rights, they can complain before the court. The complainant has to be personally injured in their rights. So in case the German parliament makes a law that allows religious circumcision, a five day old Jewish baby could complain before the court. Such a case, if decided in favour of the complainant, does not invalidate the law de iure, but often it does de facto.

You see the problem with this: who makes the complaint for the child? One of the parents. So only in case the parents stronlgy disagree, you'd get such a case. Legal persons can also complain under this title, but it's very unclear to me from that page if an "Association against child circumcision" would be admissible; I tend to read it as not.

ETA: This is the most popular kind of case before the court (151,000 out of 157,000), but only 3,699 were successful.

2. Konkrete Normenkontrolle

In such a case, a lower court thinks a law goes against the constitution. It requires a concrete court case before the lower court where that law is applicable. The lower court then suspends the case and asks the constitutional court to review the law in question. So, in case parliament decides a law permitting religious circumcision, you'd need (a) a botched circumcision case, so the authorities are alerted; (b) a prosecutor who brings that case before court, and (c) a court that thinks the law is against the constitution.

3. Abstrakte Normenkontrolle

This is the kind of case where truly a law is challenged, checked against the constitution, and stricken from the books, if successful. However, the possible complainants are quite limited:
a) the federal government (executive)
b) the government (executive) of one of the states
c) one quarter of the (federal) MPs.

In the current situation, the Chancellor, leader of the main government party CDU, has said she's in favour of such a law. The minor opposition party, the Greens, have also said they're in favour.

So the federal government is out. Which of the 17 state governments would burn their fingers on this issue? And would SPD or Left Party MPs burn their fingers on this issue by levelling a complaint? My guess is that the SPD, the main opposition party, receives a great deal of the Muslim votes, and don't want to be seen as antagonizing. Letting the courts forbid circumcision is one thing, actively opposing legislation to permit it is another thing.

ETA: Christian beat me to it and raises a good point:

Our current minister of justice, Sabine Leutheusser-Schnarrenberger, already noted that allowing special treatment, which goes against court ruling, constitution, human rights, etc., purely based on religious and/or cultural habits, will surely open up a really big and nasty can of worms. She especially mentioned FGM as well.

Yes, the junior coalition partner FDP might also grow a skin (pun intended).

ETA2: added number (2). From what I've read thus far, that seems the most likely scenario to challenge a pro-religious-circumcision law.

 

[jdp]

However, you can be 100% sure that there will be people calling that court if what Merkel proposes comes true. Not only from the people who oppose circumcision, but also from people who are not granted special rights because of their religion, like the african community in Germany with respect to FGM, for example.

I hope you're right. I'd like to see the song and dance that results from trying to allow circumcision but disallow a list of other similar practices. I would expect a challenge from others not granted special rights to be more likely.

Disclaimer: I'm not German, I've only looked at the relevant wiki pages in German. And after that, I'm a bit confused how this would have to be done in this specific case. Links are to the relevant German wiki pages.

Neither am I.

Bundesverfassungsgericht (constitutional court)

A test is certainly not automatic. Someone has to challenge the law. The German constitutional court adjudicates a number of different kind of cases (summed up in section 8 of that page), of which two seem relevant to this case.

1. Verfassungsbeschwerde

When someone is injured in their constitutional rights, they can complain before the court. The complainant has to be personally injured in their rights. So in case the German parliament makes a law that allows religious circumcision, a five day old Jewish baby could complain before the court. Such a case, if decided in favour of the complainant, does not invalidate the law de iure, but often it does de facto.

I am wondering, can the child bring the challege when he is say 18 to the court?

 

[Christian Klippel]

1. Verfassungsbeschwerde

[...]

You see the problem with this: who makes the complaint for the child? One of the parents. So only in case the parents stronlgy disagree, you'd get such a case. Legal persons can also complain under this title, but it's very unclear to me from that page if an "Association against child circumcision" would be admissible; I tend to read it as not.

Well, of course that's only one possible way. Another would be that a different group, who has _not_ been granted exemptions for religious practices, calls the constitutional court. Because if group X gets special treatment, but not group Y, group Y can complain. Since this matter certainly involves constitutional rights, chances are good that they will hear the case.

3. Abstrakte Normenkontrolle

This is the kind of case where truly a law is challenged, checked against the constitution, and stricken from the books, if successful. However, the possible complainants are quite limited:
a) the federal government (executive)
b) the government (executive) of one of the states
c) one quarter of the (federal) MPs.

In the current situation, the Chancellor, leader of the main government party CDU, has said she's in favour of such a law. The minor opposition party, the Greens, have also said they're in favour.

Again, this is only half the story. There is also the "concrete review of statutes", see here. That means, for example, that if any other court wants to rule that such an exemption for group X, or the non-granting of a similar exemption for group Y, is against the constitutional rights, that court can refer to the constitutional court to get a ruling on that matter.

Now that the cologne court has ruled on a _basic_ level that circumcision of boys constitutes "Körperverletzung" (battery i think is the proper english term), the doors are open for others to bring forward cases about this matter. For example, a doctor in Cologne could find out that a boy was freshly circumcised after this ruling. He can bring that fact to the attention of local authorities, who would then put the parents before court.

Now the parents could claim that it goes against their religious freedom (a constitutional right), but the judge disagrees. Or the prosecutor could claim that it goes against the constitutional right that no human should be harmed (Recht auf körperliche Unversehrtheit). In both cases it touches the constitutional rights. The judge could then forward the case to the constitutional court, who will then in turn rule on that matter.

Greetings,

Chris

 

[Christian Klippel]

I hope you're right. I'd like to see the song and dance that results from trying to allow circumcision but disallow a list of other similar practices. I would expect a challenge from others not granted special rights to be more likely.

While i can't be 100% sure, of course, i'm pretty confident that someone will go after it, should such a law become reality. The implications are just too many to do nothing about it.

Let's just spin some thoughts. Let's assume jews and muslims fight side by side to get such a law that grants them such special exemptions. Let's further assume that they are successful with that.

Wouldn't it be a highly ironic tragedy if after that muslims would start to kill jews, in Germany, because their particular interpretation of the quran (and thus their religious practices/traditions) tells them so? What should a court decide then? After all, both have just been granted special exemptions as far as their religion and culture is concerned. The court would have somewhat of a problem to deny them the right to what they did. But it would also have a problem to let it slide, because it simply is murder.

Of course that's a far stretch of imagination here, but something that is certainly within the range of possibilities.

No matter from what angle you look at the problem, granting anyone special rights above the constitutional and human rights because of religion/tradition will inevitably lead to really, really nasty situations. Pandorra's box comes to mind here...

Greetings,

Chris

 

[ddt]

Well, of course that's only one possible way. Another would be that a different group, who has _not_ been granted exemptions for religious practices, calls the constitutional court. Because if group X gets special treatment, but not group Y, group Y can complain. Since this matter certainly involves constitutional rights, chances are good that they will hear the case.

Yes, I read your previous post (after I'd submitted mine), and I must say that I still have to wrap my head around how that would work. Let's say my religion, Nonailism, removes toenails. Does my complaint then argue that an exception for circumcision should be stricken because it's unfair to me, or does my complaint then argue I should get an exemption for ripping out toenails too?

Again, this is only half the story. There is also the "concrete review of statutes", see here. That means, for example, that if any other court wants to rule that such an exemption for group X, or the non-granting of a similar exemption for group Y, is against the constitutional rights, that court can refer to the constitutional court to get a ruling on that matter.

I realized I had missed that one and have added it to my previous post.

 

[Christian Klippel]

Yes, I read your previous post (after I'd submitted mine), and I must say that I still have to wrap my head around how that would work. Let's say my religion, Nonailism, removes toenails. Does my complaint then argue that an exception for circumcision should be stricken because it's unfair to me, or does my complaint then argue I should get an exemption for ripping out toenails too?

In fact it can be either of that. Not granting you the right, while circumcision would be granted such a right, would conflict with the freedom of religion part of the constitution. However, both also conflict with it because of the no-human-should-harmed clause in the constitution. So, no matter how you look at it, it always touches constitutional rights then, and thus whoever the judge is you complain to, he can (and very likely will) forward that to the constitutional court.

Another issue is that he does not have to forward it. He certainly can decide on the matter by him/herself. However, since such a ruling would conflict with the constitution no matter what, anyone else is free to bring the matter to the attention of the constitutional court then.

In any case i'm damn sure that it will end up before the constitutional court sooner or later anyways, see my above posts.

Greetings,

Chris

ETA: Please note that i'm not a lawyer or anything like that. It's just my opinion, which i formed by speaking with a lot of people about this, some of which _are_ lawyers. But since lawyers don't make the laws, or even agree between themselves how a certain law should be interpreted, it could still be wrong.

 

[Christian Klippel]

I am wondering, can the child bring the challege when he is say 18 to the court?

There is something like that happening in Austria right now. Cahit Kaya form the Central Council of Ex-Muslims has just hired a high profile lawyer (Eva Plaz) to check out if it is possible to have a case against the state about his own circumcision.

Some info about that is here, albeit all in German (use Google translate or similar to get the gist of it).

Greetings,

Chris

 

[Mycroft]

Since when did the word mutilate become "hateful, inflammatory, bigoted speech"?

I am nonplussed considerable that the fact actual functional body parts for absolutely no good reason were cut off of certain people when they were infants is not only un-upsetting to them but they're even defensive about it; yet someone terming such cutting-up "mutilation" severely upsets them. The word is unacceptable but the act is not.

I don't know if he's really "severely upset" over the term, but it should be easy for anyone to understand that it's needlessly emotive and that there is a large choice of perfectly accurate alternative terms to choose from.

 

[ehcks]

I don't know if he's really "severely upset" over the term, but it should be easy for anyone to understand that it's needlessly emotive and that there is a large choice of perfectly accurate alternative terms to choose from.

"Medically unnecessary permanent surgical removal of a normal and healthy body part of a non-consenting minor" is far too unwieldy.

 

[Christian Klippel]

Yes, the junior coalition partner FDP might also grow a skin (pun intended).

Certainly not. The FDP is just a joke of a party, and follows whoever has the money or power. It's only Leutheuser-Schnarrenberger who actually has some sense of reality. She's also responsible for Germany not having the "Vorratsdatenspeicherung" yet, and other nasty stuff not becoming a law here. If you wouldn't know what party she belongs to, you would never, ever, guess that she is with the FDP.

In short: don't get your hopes up because it's FDP. It has nothing to do with that. It's only that one person.

Greetings,

Chris

 

[jdp]

There is something like that happening in Austria right now. Cahit Kaya form the Central Council of Ex-Muslims has just hired a high profile lawyer (Eva Plaz) to check out if it is possible to have a case against the state about his own circumcision.

Some info about that is here, albeit all in German (use Google translate or similar to get the gist of it).

Greetings,

Chris

I'll read about that, if it is as described and he wins, it would be excellent. I am not aware of any litigation brought in the US by a dissatisfied adult on the issue of his consent. There have been cases (at least one that I am aware of perhaps more) where improper consent was the cause of action but if I recall, the claim was that consent provided by the parent was not properly obtained. The lawsuit was brought by the adult child but the cause of action wasn't lack of his consent but improperly obtaining consent from the parents. Essentially, the child (then an adult) sued the doctor and the hospital and the lawsuit was supported by his parents.