On the supposed distinction between culture and religion: A brief comment on Sir James Munby’s decision in the matter of B and G (children)

On the supposed distinction between culture and religion: A brief comment on Sir James Munby’s decision in the matter of B and G (children)

By Brian D. Earp (@briandavidearp)

Introduction

What is the difference between “culture” and “religion” … ? From a legal standpoint, this question is important: practices which may be described as being ‘religious’ in nature are typically afforded much greater protection from interference by the state than those that are understood as being “merely” cultural. One key area in which this distinction is commonly drawn is with respect to the non-therapeutic alterations of children’s genitals. When such alteration is done to female children, it is often said to be a “cultural” practice that does not deserve legal protection; whereas, when it is done to male children, it is commonly said to be a “religious” practice – at least for some groups – and must therefore not be restricted (much less forbidden) by law.

Is this a valid distinction?

Background

First, a little background. Last month, a senior British judge — Sir James Munby — handed down a landmark decision concerning “female genital mutilation” or “FGM” (Munby, 2015). In it, he avers that even “minor” forms of FGM – such as ritual nicking of the clitoral hood, which does not remove any tissue – constitute “significant harms” in the eyes of the law. As I have argued previously on this blog (Earp, 2014a), as well as elsewhere (Earp, 2013; Earp, 2015a; Earp, 2015b; Earp, 2015c; Earp & Darby, 2014; Earp, under review) such a view has serious implications for the practice of male circumcision. This is because the most common forms of male circumcision are significantly more physically invasive than at least some forms of FGM (for further discussion, see this very interesting interview with Ayaan Hirsi Ali; see also Davis, 2000; DeLaet, 2009; Johnson, 2010; Svoboda & Darby, 2008; Svoboda, 2013; Fox & Thomson, 2005; Lightfoot-Klein, 1997; and Solomon & Noll, 2007).

That this point is not commonly understood in the public discourse is due at least partially to the fact that “When people talk about ‘FGM’ they are usually thinking of the most severe forms of female genital cutting, done in the least sterile environments, with the most drastic consequences likeliest to follow – even though research suggests that these forms are the exception rather than the rule. When people talk about ‘male circumcision,’ by contrast, they are (apparently) thinking of the least severe forms of male genital cutting, done in the most sterile environments, with the least drastic consequences likeliest to follow – perhaps because this is the form with which they are culturally familiar” (Earp, 2015a).

But this is a mistake. As Zachary Androus, an anthropologist and seasoned scholar of ritual genital cutting, has shown: “The fact of the matter is that what’s done to some girls [in some cultures] is worse than what’s done to some boys, and what’s done to some boys [in some cultures] is worse than what’s done to some girls. By collapsing all of the many different types of procedures performed into a single set for each sex, categories are created that do not accurately describe any situation that actually occurs anywhere in the world” (Androus, 2004).

To his great credit, Sir James Munby seems to have appreciated this point in his recent decision. He wrote:

Circumcision of the male … is the removal of some, or all, of the prepuce (foreskin), the retractable fold of skin that surrounds and covers the glans of the penis, so as to expose the glans. Circumcision involves the removal of a significant amount of tissue, creates an obvious alteration to the 
appearance of the genitals and leaves a more or less prominent scar around the circumference of the penis. … It can readily be seen that although FGM of WHO Types I, II and III are all very much more invasive than male circumcision, at least some forms of Type IV, for example, pricking, piercing and incising, are on any view much less invasive than male circumcision. 
(Munby, 2015).

He follows this observation to its logical conclusion:

Given the comparison between what is involved in male circumcision and FGM WHO Type IV, to dispute that the more invasive procedure involves the significant harm involved in the less invasive procedure would seem almost irrational. In my judgment, if FGM Type IV amounts to significant harm, as in my judgment it does, then the same must be so of male circumcision. 
(Munby, 2015, emphasis added)

The importance of this conclusion cannot be overstated: this is the first time in the history of British law that the non-therapeutic circumcision of male children has been described as a “significant harm.” However, Munby was not entirely comfortable with the implications of this description. In subsequent paragraphs, he attempted to “rescue” the legal distinction between male and female forms of non-therapeutic, non-consensual genital alteration by appealing to two apparent points of difference.

The first point of difference was the religion/culture distinction alluded to above, and the second is a distinction based on purported “health benefits”–only male circumcision, but not FGM, has been described by some medical authorities as conferring at least some degree of protection against urinary tract infections, sexually transmitted infections, and genital cancer, among other diseases (for critiques of this view, see, e.g., Earp, 2012a; Earp & Darby, 2014; Earp, 2015c; Frisch et al., 2013). While the focus of this post shall be on the religion/culture issue, let me first address the argument about “health benefits” so that that can be gotten out of the way.

Male and female genital alteration and the question of health benefits[i]

I argue that a distinction based on “health benefits” cannot be used to justify differential legal treatment of male and female forms of non-therapeutic, non-consensual genital alteration, due to the fact that this apparent difference between the two is in large part actually a consequence of the current legal situation. Specifically, due to the fact that all forms of FGM are prohibited by law in Western countries, it is not actually possible to conduct a scientific study to determine whether a minor, sterilized form of the procedure would in fact confer some kind (or degree) of health benefit.

The logic here is fairly simple. Removing any part of the body would likely reduce (or even eliminate) the risk that it would fall prey at some point to disease. Removing a young girl’s breast buds, for instance, would dramatically reduce her risk of acquiring breast cancer, just as removing a child’s lips would reduce his or her chance of getting a cold sore. I think there are good reasons why neither of these interventions is commonly recommended, even on purely “medical” grounds, and I have little doubt that both would be considered a form of criminal assault if they were done without consent. But what about the female genitalia? As I have noted elsewhere: “the vulva has all sorts of warm, moist places where bacteria or viruses could get trapped, such as underneath the clitoral hood, or among the folds of the labia; so who is to say that removing some of that tissue (with a sterile surgical tool) might not reduce the risk of various diseases?” (Earp, 2015).

As it happens, defenders of FGM in some countries actually do cite such “health benefits” as “a lower risk of vaginal cancer … less nervous anxiety, fewer infections from microbes gathering under the hood of the clitoris, and protection against herpes and genital ulcers” (Svoboda & Darby, 2008). Jarringly, at least one study conducted by Western researchers has shown a link between “female circumcision” and a reduced prevalence of HIV—a result that the authors, both experienced statisticians, characterized as a “significant and perplexing inverse association between reported female circumcision and HIV seropositivity” (Stallings & Karugendo, 2005). The authors expressed a dire need for further research into the issue. Yet as the medical anthropologist Kirsten Bell has noted (personal communication):

These findings, which were presented at an International AIDS Society conference in 2005, have never been published in a peer-reviewed journal and it is difficult to imagine any agency willing to entertain Stallings and Karugendo’s call for further research. Indeed, the topic is self-evidently a non-starter. Regardless of any evidence that might suggest an association, it is impossible to imagine a parallel research agenda [to the one on male circumcision] solidifying around the procedure, irrespective of whether the surgery was conducted in a medical context and [irrespective of] the extent of cutting involved.

Be that as it may, we can take the thought experiment one step further. With respect to causal plausibility, it seems relevant to point out that the key biological mechanism through which the foreskin in males is generally speculated to become a vector of HIV transmission (although this theory is contentious; see Van Howe, 2015)—namely Langerhans cells—are also present throughout the vagina, including in the clitoris and the labia (see Hussain and Lechner 1995). Moreover, at the demographic level, there is an apparent geographical association between the prevalence of HIV in parts of Africa and a lack of “circumcision” for both females and males (Caldwell, Orubuloye & Caldwell, 1997).

The point here is not to suggest that there is in fact good evidence that certain forms of FGM would definitely reduce the transmission of HIV. Instead, it is to say that such a view is not at all implausible—especially if the surgery were carried out by a trained medical professional, and with full anesthesia, let us say—and yet it is actually illegal under Western law to collect experimental evidence regarding this theory, in the form of a randomized control trial, to find out. Thus, “every time one sees the claim that ‘FGM has no health benefits’ – a claim that has become something of a mantra for the WHO – one should read this as saying, ‘we don’t actually know if certain minor, sterilized forms of FGM have health benefits, because it is unethical, and would be illegal, to find out’” (Earp, 2014a).

On the other side of the coin, the health benefits that have been attributed to male circumcision are—to put it bluntly—unimpressive. Most take the form of a modest apparent reduction in the absolute risk of some infection or disease, whose prevalence in developed nations is generally low, and whose occurrence can almost always be prevented by much less invasive (i.e., non-surgical) means (see, e.g., Frisch et al., 2013; Earp & Darby, 2014). Moreover, even according to the relatively pro-circumcision Centers for Disease Control (for a critique, see Earp, 2015c), most of the findings concerning partial protection against sexually transmitted infections come from studies of adult circumcision carried out in sub-Saharan Africa under conditions of informed consent. Since the spread of disease is “is determined much more by socio-behavioral and situational factors than by strictly anatomical-biological factors, such as the presence or absence of a foreskin … the apparent findings from these studies cannot be simply mapped on to non-analogous public health environments [nor] to circumcisions performed earlier in life, i.e., before an age of sexual debut” (or indeed consent) (Earp, 2015c). Thus there is very little evidence that non-consensual (i.e., childhood) circumcision, specifically, confers any kind of meaningful net health benefits, taking into consideration the countervailing problem of surgical risks, costs, and harms (see Darby, in press).

Culture vs. religion

What about the distinction based on religion? As Sir James Munby argued in his recent decision: “FGM has no basis in any religion [whereas] male circumcision is often performed for religious reasons” (Munby, 2015). Is this a valid way of preserving the differential legal treatment of the two?

I argue that it is not. Here, I rely heavily on the work of Margherita Brusa and Michael Barilan (as stated in a recent paper of theirs in the journal Bioethics), as well as Alex Myers (writing in the American Journal of Bioethics). Since each of these authors has explored the culture/religion distinction in great depth, as well as with considerable eloquence and clarity of expression, I hope I may be forgiven for quoting their papers directly and at length:

From Brusa and Barilan (2009):

The distinction between “cultural” and “religious” motivations, is common in the literature. It is implied that “religious” circumcision deserves protection and even assistance on the grounds of respect for people’s faiths and own perception of divine commandments, whereas “cultural” circumcision is more like a habit that deserves less tolerance.

In the context of circumcision, we find the moral dimension of the distinction between the “religious” and the “cultural” rather tenuous. Research on the historical development of circumcision demonstrates very intricate links bridging religion, institutions of social power and metamorphoses in meaning and practice over time and space. Since rituals tend to accumulate value in grids of overlapping levels of meaning, circumcising cultures tend to regard the practice as “protective” … “good for the moral education of the child,” “natural,” “beautiful,” “clean and hygienic,” “the will of God / the gods,” “a sign of the covenant” and the like, all at once. … At times, contradictory values are allied together with one symbolic practice.

Even if “religion” and “culture” were independent entities, or maintained stable logical relationships with each other, we see no particular reason to find one context morally weightier than the other. Although religious commitments and sentiments are taken as stronger and more deeply rooted than practices whose explicit religious content, if any, is less obvious, strength of perceived commitment is no more a stimulus to become supportive of a habit than a warning to be morally circumspect about it.

Additionally, we tend to suspect that the distinction between the “religious” and the “cultural” reflects biases in gender and class. In one survey of over 1,000 Sudanese, most men responded that the main reason for female circumcision was “religious,” whereas most women said it was “a good tradition.” It seems that the religiously educated tend to ground their practices in theological terms, whereas those who were less exposed to official religious formation resort to less articulate explanations for no less valued goals.

In addition, syncretism is rife among many groups of immigrants. Christian Africans often circumcise their children, simply because this is what everybody around them does, and their professed religion does not object to it.

In a bioethical context, we do not see a reason for trying to rank the value of circumcision for Senegalese Christians relative to those of tribal Africans or observant Muslims. In the same vein, we do not suppose that the few religious sentiments of a secular person, even an atheist, deserve less consideration than the religious values of the most piously orthodox, or of one who follows the ways of an ethnic group without adherence to any creed whatsoever.

And as Alex Myers (in press) argues:

[Many] seem to put much store by the fact that two major monotheistic religions, Judaism and Islam, require male circumcision to be performed in infancy or childhood. From a secular humanist perspective, this sort of defense may appear no different from the argument from tradition [which, as Myers argues, cannot succeed]. Some, however, might believe that religious considerations are imbued with a special status such that they can “trump” other values, even those as fundamental as autonomy and bodily integrity. Let us assume this premise, for the sake of argument, and see where it leads. [People] may or may not be aware that in Sunni Islam, the dominant branch of Islam, two of the four schools of jurisprudence, Shafi’i and Hanbali, consider Type 1 female circumcision to be obligatory, while the other two schools, Maliki and Hanafi, recommend the practice. The scriptural support for this is no weaker than that for male circumcision—both are derived from the secondary source of Islamic law known as the Hadith (Muhammad’s prophetic example) and neither is to be found in the Qur’an, the primary source of Islamic law. Thus, if we defer to religious justifications, we shall find that in many cases, the circumcision of female as well as male children could be permitted on this basis. Some might take this to be a reductio ad absurdum of the argument from religion, but others may bite the bullet.

As should be clear from my previous writings on this subject (see, e.g., Earp 2012b; see also the discussion by Sarajlic, 2014), I favor the reductio. That is, I do not think that one’s perceived religious commitments can legitimately excuse an act of harming a child (especially since the child is in no position to protect himself or herself, and also cannot possibly evaluate the metaphysical validity of his or her parents’ religious beliefs from a place of informed understanding), and indeed this is the ethico-legal precedent in many Western jurisdictions. In the U.S. context, for example, the Supreme Court has reached the following conclusion (in Reynolds vs. United States):

Can a man excuse his [otherwise illegal] practices … because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.

This is another reductio. Since societies could hardly function if it were the case that “every citizen” were “a law unto himself,” it follows that one’s professed religious beliefs cannot excuse what would otherwise be considered a crime (in this case, assault on a minor). Therefore, if the non-consensual, non-therapeutic alteration of a child’s genitals constitutes a “significant harm”—as held by Sir James Munby in his recent decision—and if it would, were it not for its status as a religious practice in some groups, be widely seen as a form of assault (see Myers, in press; Merkel and Putzke, 2013), then it seems to me that it should be regarded as being, at the very least, in serious tension with well-established Western legal norms, regardless of its status as a religious practice, and regardless of the sex or gender of the child.

Conclusion

There is no easy way out of this bind. As I have written elsewhere on this blog:

[Although I have argued] that the non-consensual, non-therapeutic surgical alteration of any child’s genitals is morally impermissible, and [although] I endorse efforts to eliminate these practices … history shows me that shouting “mutilation” and calling for a “ban” does not always lead to the outcomes one hopes for. [This can be seen in the evident ineffectiveness of legal prohibitions on FGM in reducing its occurrence, at least in the countries in which has been traditionally performed]. So, I choose to focus my efforts [instead] on building understanding with the communities involved, creating dialogue, and shifting hearts and minds. [Others favor a different] approach … and perhaps there is room for a range of strategies in effecting social change; but I think we would do well to remember that calling in the force of law to change people’s behavior is just one tool among many, and not always the best. (Earp, 2014b)

We shall see what the ultimate fall-out is of the recent Munby decision. Certainly, this debate could play out any number of ways. One thing, however is clear: male and female forms of non-therapeutic genital alteration should no longer be discussed in completely non-overlapping discourses, whether from a legal or moral perspective. Instead, at least to my mind, the relevant framework is one that analyses a child’s right to bodily autonomy, and considers how tolerant we are willing to be, in Western societies, of practices which irreversibly alter a person’s “private parts” in a non-trivial fashion, in the absence of medical necessity, and before the person has a chance to say “no” (see Earp, in prep).

References and further reading

Androus, Z. T. (2004). The United States, FGM, and global rights to bodily integrity. Paper presented at The Rothermere American Institute Conference: The United States and Global Human Rights. University of Oxford. Available at: http://www.zacharyandrous.com/The%20US%20FGM%20and%20Global%20HR.pdf.

Brusa, M., & Barilan, Y. M. (2009). Cultural circumcision in EU public hospitals–an ethical discussion. Bioethics, 23(8), 470-482.

Caldwell, J. C., Orubuloye, I. O., & Caldwell, P. (1997). Male and female circumcision in Africa from a regional to a specific Nigerian examination. Social Science & Medicine, 44(8), 1181-1193.

Darby, R. J. (in press). Risks, benefits, complications and harms: issues in the current debate on non-therapeutic circumcision. Kennedy Institute of Ethics Journal, in press.

Davis, D. S. (2000). Male and female genital alteration: a collision course with the law? Health Matrix, 11(2), 487-570.

DeLaet, D. L. (2009). Framing male circumcision as a human rights issue? Contributions to the debate over the universality of human rights. Journal of Human Rights, 8(4), 405-426.

Earp, B. D. (in prep). Female genital mutilation and male circumcision: Toward an autonomy-based ethical framework. Working paper. Available at https://www.academia.edu/10270196/Non-therapeutic_male_and_female_genital_alterations_Toward_an_autonomy-based_ethical_framework.

Earp, B. D. (2015). Do the benefits of male circumcision outweigh the risks? A critique of the proposed CDC guidelines. Frontiers in Pediatrics, 3(18): doi: 10.3389/fped.2015.00018. Available at http://journal.frontiersin.org/article/10.3389/fped.2015.00018/abstract.

Earp, B. D. (under review). Between moral relativism and moral hypocrisy: The case of ‘FGM.’ Working paper. Available at https://www.academia.edu/10197867/Between_moral_relativism_and_moral_hypocrisy_The_case_of_FGM.

Earp, B. D. (2015). Sex and circumcision. American Journal of Bioethics, 15(2): 43-45. Available at http://www.tandfonline.com/doi/abs/10.1080/15265161.2014.991000?journalCode=uajb20#.VOpBAEI7yfQ.

Earp, B. D. (2013). The ethics of infant male circumcision. Journal of Medical Ethics 39(1): 416-417.

Earp, B. D. (2015). Boys and girls alike. Aeon Magazine. Available at http://aeon.co/magazine/philosophy/male-and-female-circumcision-are-equally-wrong/.

Earp, B. D. (2014a). Female genital mutilation (FGM) and male circumcision: Should there be a separate ethical discourse? Practical Ethics. University of Oxford. Available at: https://www.academia.edu/8817976/Female_genital_mutilation_FGM_and_male_circumcision_Should_there_be_a_separate_ethical_discourse. DOI: 10.13140/2.1.3530.4967.

Earp, B. D. (2014b). Things I have learned (so far) about how to do practical ethics. Practical Ethics. University of Oxford. Available at http://blog.practicalethics.ox.ac.uk/2014/03/things-ive-learned-so-far-about-how-to-do-practical-ethics/.

Earp, B. D., & Darby, R. J. (2014). Does science support infant circumcision? A skeptical reply to Brian Morris. The Skeptic. E-pub ahead of print. Available at https://www.academia.edu/9872471/Does_science_support_infant_circumcision.

Earp, B. D. (2012a). The AAP report on circumcision: Bad science + bad ethics = bad medicine. Practical Ethics. University of Oxford. Available at http://blog.practicalethics.ox.ac.uk/2012/08/the-aap-report-on-circumcision-bad-science-bad-ethics-bad-medicine/.

Earp, B. D. (2012b). Can the religious beliefs of parents justify the non-consensual cutting of their child’s genitals? Practical Ethics. University of Oxford. Available at http://blog.practicalethics.ox.ac.uk/2012/06/religion-is-no-excuse-for-mutilating-your-babys-penis/.

Fox, M., & Thomson, M. (2005). A covenant with the status quo? Male circumcision and the new BMA guidance to doctors. Journal of Medical Ethics, 31(8), 463-469.

Frisch, M., Aigrain, Y., Barauskas, V., Bjarnason, R., Boddy, S. A., Czauderna, P., … & Wijnen, R. (2013). Cultural bias in the AAP’s 2012 Technical Report and Policy Statement on male circumcision. Pediatrics, 131(4), 796-800.

Hussain, L. A., & Lehner, T. (1995). Comparative investigation of Langerhans’ cells and potential receptors for HIV in oral, genitourinary and rectal epithelia. Immunology, 85(3), 475.

Johnson, M. (2010). Male genital mutilation: beyond the tolerable? Ethnicities, 10(2), 181-207.

Lightfoot-Klein, H. (1997). Similarities in attitudes and misconceptions about male and female sexual mutilations. In Sexual Mutilations (pp. 131-135). Springer US.

Merkel, R., & Putzke, H. (2013). After Cologne: male circumcision and the law. Parental right, religious liberty or criminal assault? Journal of Medical Ethics 39(7), 444-449.

Myers, A. (in press). Neonatal male circumcision, if not already commonplace, would be plainly unacceptable by modern ethical standards
. American Journal of Bioethics, in press.

Munby, Sir J. (2015, January 14). Re B and G (Children) (No 2). Case No: LJ13C00295, in the Family Court, sitting at Leeds. Royal Court of Justice. Approved judgment. Available at http://www.judiciary.gov.uk/wp-content/uploads/2015/01/BandG_2_.pdf.

Reynolds v. United States. 1878. 98 U.S. 145, at 166–167.

Sarajlic, E. (2014). Can Culture Justify Infant Circumcision?. Res Publica, 20(4), 327-343.

Solomon, L. M., & Noll, R. C. (2007). Male versus female genital alteration: differences in legal, medical, and socioethical responses. Gender Medicine, 4(2), 89-96.

Stallings, R. Y., & Karugendo, E. (2005, July). Female circumcision and HIV infection in Tanzania: for better or for worse. In Third International AIDS Society Conference on HIV Pathogenesis and Treatment. Rio de Janeiro (pp. 25-27).

Svoboda, J. S. (2013). Promoting genital autonomy by exploring commonalities between male, female, intersex, and cosmetic female genital cutting. Global Discourse, 3(2), 237-255.

Svoboda, J. S., & Darby, R. (2008). A rose by any other name? Symmetry and asymmetry in male and female genital cutting. In Chantal Zabus (ed.), Fearful symmetries: Essays and testimonies around excision and circumcision. Amsterdam and New York: Rodopi.

Van Howe, R. S. (2015). A CDC-requested, evidence-based critique of the Centers for Disease Control and Prevention 2014 Draft on Male Circumcision. Available at https://www.academia.edu/10553782/A_CDC-requested_Evidence-based_Critique_of_the_Centers_for_Disease_Control_and_Prevention_2014_Draft_on_Male_Circumcision_How_Ideology_and_Selective_Science_Lead_to_Superficial_Culturally-biased_Recommendations_by_the_CDC.

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[i] Please note that portions of this section have been adapted from a forthcoming paper of mine, “Female genital mutilation and male circumcision: Toward an autonomy-based ethical framework” (draft available here).

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5 Responses to On the supposed distinction between culture and religion: A brief comment on Sir James Munby’s decision in the matter of B and G (children)

  • Peter London says:

    Thank you so much Brian. You are a total star.

    You are so professional, rational, academic, precise, comprehensive and persuasive.

    Time and again, your article are cited by those in authority, as they are seen as the gold standard in this area of knowledge.

    Please keep-up the good work.

  • Peter London says:

    I would also note, that I felt strongly that Sir James Munby was inviting the public to take a closer look at Male Circumcision [MGM] and start to pressure politicians, the media, opinion formers etc.

  • Robert Darby says:

    Several interesting issues emerge from this important judgement. If, as Brusa and Barilan argue, there is no real difference between a cultural and a religious practice, we face the same sort of questions that are raised by Justice Munby’s comments. (1) Is male circumcision to be regarded with the same detestation as female genital mutilation; or is FGM to be as tolerated as male circumcision? (2) Are cultural practices to be accorded the same privileged status as religious observances, or is the status of religious observances to be lowered to that of a mere custom or tradition?

    The answer to these questions has wide-ranging implications, not least for borderline practices and legal consistency. Consider metsitsah, a phase of the circumcision procedure observed by some ultra-orthodox Jews in which the mohel, after cutting off the foreskin, takes the bleeding penis in his mouth. Is this a religious rite or a cultural practice? The theological authority for the Jewish rite of circumcision is Genesis 17, but this mentions (in no great detail) no more than the requirement to circumcise the flesh of the foreskin; there is nothing about subsequently sucking the penis. Although its origins are obscure, metsitsah was introduced some time in the Second Century CE in order (according to the Talmud) to promote healing of the wound [1]. Does this make metsitsah a religious rite or a medical intervention?

    The question is both topical and pertinent, as there have been many cases over the centuries of herpes, syphilis and other diseases being communicated from the mohel to the child by this means, and the issue is currently very much alive in New York, where several deaths have been reported in recent times. Critics argue that on health and safety grounds alone the practice ought to be prohibited, but so far the city authorities have accepted the contention of Jewish community leaders that that metsitsah is a religious rite and thus inviolable under the religious freedom clause United States Constitution. This claim has so far gone largely unchallenged (except by outspoken atheists such as the late Christopher Hitchens, gods rest his soul), but if there is no biblical warrant for metsitsah, the Talmud explains it in terms of medical benefit, and only a relatively small sect of contemporary Jews observe it, the assertion that it is a protected religious rite begins to look less certain: perhaps it is only a cultural practice or custom arising from ignorance about the biology of wound healing and the mechanisms of disease transmission.

    Toleration of religious practices also raises problems for legal consistency. According to the theologians, circumcision is only one of more than 600 laws and rules of conduct prescribed the Torah, including the directive that adulterers and men engaging in homosexual acts should be put to death. But if these are as much religious obligations as the obligation to circumcise eight-day old boys, why do they not enjoy the protection of the religious freedom clause? Of course, nobody, even in the most ultra-orthodox Jewish community, would demand the right to kill adulterers and homosexuals (though one wonders about the more extreme believers in Islamic Sharia law), so we have a legal inconsistency that works for tolerance and liberalism.

    But is worth asking why some religiously-sanctioned rules and practices get dropped while others are maintained. Cultures have been highly selective as to which practices they drop and which retain in the course of their transformation through the centuries, and especially since the onset of modernity. In general, those that burden adults have been abandoned, while those that burden children survive. One reason circumcision continues is that those with the power to decide to abandon it are not the ones who would benefit: they have already been circumcised, and not circumcising their children will not restore anything to them. Equally, the people who would benefit are too young to be in a position to make their wishes known, or to mount effective resistance. In the end it comes down to a question of power.

    Reference

    1. Leonard Glick. Marked in your Flesh: Circumcision from Ancient Judea to Modern America (New York: OUP, 2005): 44-45; Shaye Cohen. Why Aren’t Jewish Women Circumcised? Gender and Covenant in Judaism (Berkeley: University of California Press, 2005): 26. Glick suggests that metsitsah was introduced at about the same time, or shortly after, the introduction of periah. The original Jewish method of circumcision involved no more than cutting off the portion of the foreskin extending beyond the glans. In the Hellenic period, in order to prevent disgruntled Jewish men from restoring their foreskins, the rabbis made the operation more severe, requiring the mohel to strip the foreskin from the glans and cut it off below the corona (periah). This was not only a more radical operation, but produced a more serious wound, with noticeably greater bleeding.

  • Gerard Clarke says:

    I think that Sir James Munby quite deliberately chose to address a point that he did not have to address (given his findings on the facts of the case) in order to bring the matter into public debate. It appears to me that Sir James regards the conclusion forced on him by convention to be absurd, and points the contrast between the social acceptance of male circumcision and the condemnation of FGM for that purpose. What Sir James then does is to decline to legislate, as that would overstep the boundary of what a Judge can do. It is not so easy to be Lord Mansfield these days*. I could wish that Sir James had been more radical, but he arguably acted within the constraints that the Constitution places on him.

    Query, however, whether Sir James’ reluctance to step into the deep waters is consistent with the approach recommended by Lord Justice Laws (rejecting a contention that the law should protect the content of religious views, as opposed to protecting the right to have such views) in McFarlane v Relate [2010] EWCA Civ 711, where he said:-

    “24. The promulgation of law for the protection of a position held purely on religious grounds cannot therefore be justified. It is irrational, as preferring the subjective over the objective. But it is also divisive, capricious and arbitrary. We do not live in a society where all the people share uniform religious beliefs. The precepts of any one religion – any belief system – cannot, by force of their religious origins, sound any louder in the general law than the precepts of any other. If they did, those out in the cold would be less than citizens; and our constitution would be on the way to a theocracy, which is of necessity autocratic. The law of a theocracy is dictated without option to the people, not made by their judges and governments. The individual conscience is free to accept such dictated law; but the State, if its people are to be free, has the burdensome duty of thinking for itself.

    25. So it is that the law must firmly safeguard the right to hold and express religious belief; equally firmly, it must eschew any protection of such a belief’s content in the name only of its religious credentials. Both principles are necessary conditions of a free and rational regime.”

    Do we draw a distinction between the content of a belief and a practice carried out pursuant to that belief? I cannot see why we should.

    * I am referring to Lord Mansfield’s breaking of step with socially accepted practices in his C18 decisions on slavery (although Stephen Sedley in the LRB recently does not think that Mansfield was being so very radical or modern about slavery after all).

  • Ben C says:

    Just in case you hadn’t noticed, paragraph 60 in Sir James Munby’s ruling (page 18 of the pdf) which you quoted refers to footnote 1:

    There is a possible qualification in relation to FGM Type Ia, which, although apparently very rare, is physiologically somewhat analogous to male circumcision.

    (FGM Type Ia as defined by the WHO at http://www.who.int/reproductivehealth/topics/fgm/overview/en/ is “removal of the clitoral hood or prepuce only”.)

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