By Mike Dorf
A regional court in Cologne recently ruled that circumcision of male infants and young boys is harmful to them and therefore illegal. The decision drew criticism and protest from Jewish and Muslim leaders in Germany and elsewhere, including a committee of the Knesset, Israel's parliament. (AP story here, courtesy of HuffPo.) Here I want to raise a question about the length of the shadow that a country's past misdeeds should cast over its current policy decisions.
To get to the issue that interests me, I'm going to make a number of potentially controversial assumptions. I am not committed to any of these assumptions--so if you disagree with one or more of them, please don't flame me about it. The assumptions are really really not the point. It's the analysis that follows from them.
Okay, here are the assumptions: (1) Circumcision has some medical benefits, most prominently the reduction in the risk that future sexual partners of circumcised men will contract cervical cancer; (2) circumcision also carries some small risks of infection or otherwise being botched, is painful to the infant or young boy on whom it is performed, and somewhat reduces the ability of circumcised men to experience sexual pleasure; (3) therefore, in a jurisdiction in which circumcision is legal, parents could reasonably decide either to circumcise or not to circumcise their sons, and obviously, having a religious reason for doing so would count as a reason in favor; (4) but likewise, a reasonable legislator could decide to ban the circumcision of minors too young to give informed consent to the procedure; (5) and if a legislature in some jurisdiction did enact such a ban, it would have good reason to exempt from the ban those persons who felt a religious obligation to circumcise their young sons, although the jurisdiction might also choose not to provide religious exemptions if the particular jurisdiction does not, as a rule, provide religious exemptions from general laws.
Now suppose that some jurisdiction is considering a circumcision ban. Let's assume that, after careful study of the evidence and the arguments, the legislators come to the view that circumcision of young males ought to be banned and that religious exemptions should not be granted. And let's further assume that they do not reach that decision on the basis of any sort of animus against the minority religions affected (Jews and Muslims). Assuming that such a determination would be justifiable in some jurisdiction without a fraught past on this issue (Denmark, let's say), would it be unjustifiable in a jurisdiction that does have a fraught past (Germany will do as our example)? And if so, for how long?
At the very least, I would think that German legislators (or judges, but for simplicity I'll focus on legislators) would have an additional obligation to examine their motivation extremely carefully. But beyond that, it strikes me that the substantive calculus should be different for the German legislators because the law's costs and benefits tally up somewhat differently in Germany than in Denmark. In addition to the same costs the law imposes wherever it is enacted, in Germany it also creates symbolic harm. Laws (and court judgments) do not merely tell people what they can, cannot or must do; laws also express messages, and those messages can themselves be harmful. In Germany, even now, two thirds of a century after the end of World War II, a law banning circumcision without religious exemptions could carry the meaning that Jews (and perhaps Muslims) are second-class citizens, even if an identical law would not have the same meaning. For more on the complicated question of figuring out when a law conveys such a message, see my article here.
Okay, assume I'm right about all of that. Assume, in other words, that Denmark would be justified in passing a no-exemptions circumcision ban but Germany would not be. When, if ever, would Germany be on a level playing field? In a hundred years? A thousand years?
I don't think one can answer that question in advance. Our own situation is instructive. Although slavery ended in the United States in the 1860s, certainly the fact that most African Americans are descended from slaves continues to bear on racial justice in the United States today--but that's due in no small part to the fact that we did not go from slavery to equality. Jim Crow apartheid persisted into the 1960s and so much of the racial stratification we observe today can readily be traced to the historical injustice of racialized slavery and its legacy.
But even in the period in which the "taint" of the historical injustice lingers, policy makers ought not hesitate to act where they have a truly compelling basis for doing so. Thus, if new and widely accepted evidence were to emerge that circumcision is terribly harmful to young boys, German legislators could reach the conclusion that, notwithstanding the expressive harm, the benefits of a ban outweigh its costs.