Marty: Everything you say is sensible, and I agree that the
case is difficult. This is precisely why a one-line statement about German
history is inadequate to advance the ball much on this. As a general matter,
it seems to me that a country's 70-year-old crimes tell much about what that
country should do today; as a specific matter, I don't think that a country's
killing Jews in the past tells us much about whether it's wrong for the country
to try to protect children - indeed, often Jewish (or Muslim) children - from
what a reasonable person could perceive as irreversible imposition of a harm
that the children can't consent to and might indeed eventually regret.
Eugene
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Sunday, July 01, 2012 9:21 AM
To: Law & Religion issues for Law Academics
Subject: Re: German circumcision decision
Actually, I don't think Paul's comment is a "one-liner" -- the fact that this
decision comes from Germany is surely the most striking and disconcerting --
and important -- thing about it.
As far as "analysis" is concerned, well, how could there be a "correct" answer?
I think we can all agree that such a law imposes a very substantial burden on
the religious exercise of most of those affected. Is there a governmental
interest sufficient to overcome this burden, as either a legal or a moral
matter? Well, that depends, of course, on how the society in question measures
the harms to the infant boys -- harms to health, dignity, autonomy, etc. And
that in turn depends on ever-shifting evidence and evolving moral sensibilities.
If this were a case in which many or most of the boys in question later
regretted the decisions of their parents, or where there were an undeniable,
severe harm in terms of health or sexual well-being -- as is the case with
respect to, e.g., female genital mutilation -- then the balancing would be
fairly obvious. But in this case, not only do most men not mind that their
parents made that decision (I assume that's also true in Germany -- but perhaps
not), but in addition, many or most of those men who prefer to be circumcised
are actually grateful that the decision was made at birth, since the procedure
is much riskier and more painful (or so I'm told!) when performed on an adult.
Surely that unusual set of facts makes this case much different from, e.g., the
FGM and denial-of-lifesaving-medical treatment cases. On the other hand, the
harm to the men (presumably a minority -- but again, perhaps things are
different in Germany) who regret their parents' decision is irreversable.
That's what makes the case so difficult.
On Sun, Jul 1, 2012 at 11:56 AM, Volokh, Eugene
<vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote:
Any chance we could have some helpful analysis of the decision,
rather than one-liners? The question of the degree to which parents should be
able to permanently alter their children's bodies - for religious reasons or
otherwise - is not, it seems to me, one that has a completely obvious answer
one way or the other. There may indeed be one correct answer that can be
demonstrated, but such demonstration requires argument rather than assertion.
Eugene
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