Last week the regional Landgericht Köln (Cologne High Court), as a second level jurisdiction, issued a ruling that circumcision without medical justification for religious reasons causes “irreparable bodily harm,” is a felony and goes against the “interest of the child to decide later in his life about his religious beliefs.” The court ruled that the “fundamental right of the child to bodily integrity outweighed the fundamental rights of the parents,” and that a minor -- in this case a 4-year-old boy -- has a right to physical integrity. Hence this right is stronger than the religious rights of the (Muslim) parents. According to German law, the decision of the Cologne High Court is not binding for other regional courts, but it is expected that it will set a legal precedent.
The decision of the Landgericht has far-reaching consequences for German surgeons, who have been aware that they were practicing in a gray legal area. In reaction to the court’s decision, the Jewish Hospital in Berlin decided on Friday that it will not perform any circumcisions for religious reasons. Of the 300 circumcisions performed last year, more than a third were motivated by religion, and most were performed on Muslim boys. Now, both Muslim and Jewish parents will be forced to go abroad for the surgery or have the surgery performed illegally in conditions that can be unsanitary. From this perspective, the situation of these parents is similar to that of pregnant women in countries where abortion is illegal. Abortion is legal in Germany.
The reaction from religious representatives from the Muslim, Jewish and Christian communities was expectedly harsh. The speaker from the Coordination Council of Muslims (Der Koordinationsrat der Muslime in Deutschland) described the ruling as an unreasonable interference with the freedom of religion. Critical comments also came from the Central Council of Jews in Germany (Zentralrat der Juden in Deutschland), which deemed the ruling a “dramatic and unprecedented intrusion into the self-determination of religious communities,” and called on parliament “to protect religious freedom from attack.” Speakers from political parties have indicated that the legal uncertainty regarding the ruling should be eliminated.
Growing Islamophobic tendencies?
Many national and international observers were very curious about the situation in Germany. Was the court’s decision a testimony of growing Islamophobic tendencies? It is true, one cannot regard the juridical decision of the Landgericht as simply a legal act; it is more. Since Muslims in Germany decided to step out of their backyard mosques and claim their religious rights as German citizens, thus becoming visible as German Muslims, German society has had enormous problems with how to deal with its new self-confident “other.” Hence the decision of the Landgericht is a milestone in the long societal dispute in Germany of if and how Islam is a part of German society and how much of its “otherness” is allowed.
Nonetheless, to view this conflict as a battle between a Muslim David against a German Goliath does not depict all the dimensions of this societal dispute. No, it is a demonstration of two diverging understandings about the constitution of German society, which causes an incisive rift in Germany society. On the one side is an understanding about society, which relative to one’s own philosophy of life, notices and accepts that others in their actions and worldview can and may be different. This relativist understanding, which can be traced back to the classic German philosophical understanding of enlightenment, accepts that one is limited in his ability to comprehend and make absolute judgments by way of reason. A rational rule of reason is not possible, due to the ignorance of humanity. Hence Islam, complete with all its diverging practices and worldviews, is and must be a part of German society as long as the differences do not harm the coherence and solidarity of society.
On the other hand is an understanding that sets reason above all. This understanding is convinced that only rational and logical decisions have a place in society and that the occidental lifestyle has realized this form of thinking in its highest form. Religion, and especially Islam, is seen as a backward irrational anomaly within society which must and will vanish. In this societal understanding, the “others” have a place in this society when they perceive their own backwardness and are ready to absolve themselves of the cultural source of their backwardness, which, for example, could be Islam. Moreover, this rationalist attitude has entered into a liaison with the populist regulars table, which is filled with indignation for everything that they believe poses a danger, such as Islam, Greece and the EU, to name but a few. Hence, it has developed an increasingly strong presence in the last year. The last prominent representative of this new attitude is the acting German president, Joachim Gauck, who stated in the German weekly Die Zeit in May that Muslims are a part of Germany but Islam is not. Translated: Muslims are a reality in Germany, but we hope that they will be reasonable and will leave their backward culture, which is associated with Islam, a religion that has not even experienced enlightenment.
With its ruling, the Landgericht has pleased all Germans who believed that German politics have made too many concessions to Islam. The judges have signaled to all Muslims in Germany -- and to all Jews, but this is probably acceptable collateral damage -- that their religious differences are not accepted. Moreover, the judges have transformed with their decision a 4,000-year-old religious ritual into a criminal act. Muslims and Jews are now forced to go abroad to perform a circumcision. Both religious groups in Germany are limited in the ability to practice their religion. Considering that Muslims in Germany are starting to claim new rights, like the right to construct minarets and the public recitation of the adhan, the call to prayer, the court ruling can be regarded as a step backward in the fight for religious equality and societal integration, at the hands of the law.
The future will bear testimony to the implication of the circumcision judgment and the associated judicial exclusion of Muslims. Now, all that remains is hope in the fact that the judges in their sentencing did not forget that the path from the absolute rule of reason -- and not law -- to a more biological evaluation of society in which rights to people are granted or rejected according to their biological and cultural superiority or inferiority, is not far. There is also hope that they remembered how this biological evaluation resulted in the most dramatic events of German history. Thus, it is now on German politicians to protect their religious minorities against the vulgar rationalist understanding that some judges in Germany have of the rule of law.
*Dr. Cüneyd Dinç is an instructor in the department of sociology at Süleyman Şah University.