The Council of Europe in Strasbourg has recommended nations consider banning child circumcision. Jewish groups, and the State of Israel, are predictably outraged by the recommendation, which if adopted would make traditional (and not just religious) Jewish life impossible on the Continent. Thus the law has been denounced as anti-Semitic.
While I have recently criticized European hypocrisy in matters related to Jews, here I find little to object to as a formal matter. European nations are well within their rights to ban such practices, despite the significant disruption it creates for religious minorities.
If democratically adopted, such bans would mean that a significant segment of European society thinks, as the Council said, that circumcision represents a barbaric mutilation of a child. That is a legitimate position of conscience; indeed, it is a quasi-religious belief itself, in that it is based on deeply held moral views about essentially unverifiable matters. As a believer in the covenant of Abraham I do not share these views, but they are far from absurd if one does not accept the validity of the covenant.
A majority has a legitimate right and interest to conduct society according to its moral views when articulated in laws that are generally and equally applied. Government is in part an instrument for the expression and transmission of values, and all legislation takes explicit or implicit moral positions. If the values that stand behind generally applicable legislation conflict with the views of religious or ethnic minorities, the majority should not be neutered or have its values annulled to protect the sensibilities of minorities who hold different views.
There are some who think the law is discriminatory, aimed at the religious groups who practice circumcision. It seems to me that circumcision, in a non-religious context, is common enough for this to be in the category of general regulation even if it falls heaviest on religious groups.
If there is some bad motive on the part of some supporters of the ban it is more likely against Europe’s growing Muslim population, not its dwindling Jewish one. Yet if this is some proxy anti-immigration effort, it will fail. Muslims will not stop circumcising their children. Governments and police in particular will be Wary of enforcing the law against Muslims for fear of inflaming inter-communal tensions, and that will be the end of it. Indeed, the law might be counterproductive, as it will not deter immigration but alienate the immigrants.
Yet from a broader perspective, such measures are historic, epochal, dizzying step backward for religious liberty. They are illiberal and intolerant in the deep sense. Jews have been allowed to fully practice their religion on the Continent since even before the Enlightenment (though subject to other restrictions). Now, at the time of the supposed greatest openness and freedom, the end of religious wars, the central Jewish rite would be banned.
It requires an extraordinary moral certitude to conclude that one established the evil of a universal normative practice of the oldest monotheistic religion, a practice that Europeans, including anti-Semites, have tolerated for as long as Jews have been there. Burkeans they are not, at the Council of Europe.
This represents a massive failure of the liberal imagination. Tolerance requires, perhaps more important than legal restraints, habits of the mind. All religious practices seem odd and bizarre to outsiders. Tolerance requires understanding the importance of these practices to the practitioner – a lack of total certitude. It is Cromwell’s Rule, referred to in his address to the Second Scottish Synod:
I beseech you, in the bowels of Christ, think it possible that you may be mistaken.
Indeed, the new European conscience might find circumcision repugnant, but certainly not as repugnant as Protestants and Catholics in Europe for centuries regarded each other’s practices. Yet for over 300 years, they have been able to live and worship fully in each other’s countries. On this backdrop, anti-circumcision legislation shows how far back we have gone while making progress.
It seems that such laws are a product less of an anti-Semitic mind-set than an anti-religious one, in which a practice that seems odd is more likely to be barbaric if it is a religious rite. Today’s secularism may be less forgiving than yesterday’s pietism. I’m reminded of Andrew Marvell’s wonderful “On the
New Forcers of Conscience Arrayed Under the Long Parliament”:
“they shall read this clearly in your charge
New Presbyter is but old Priest writ large.”
There are important lessons for the U.S. Religious freedom depends in many ways on the tolerance of the majority, if one thinks as I do that Employment Division v. Smith was rightly decided. That tolerance has long existed, more or less, in a predominantly Protestant America, a Christian America, and a simply religious America. But it is not guaranteed.