July 9, 2012
The right to rites
German envoy: There's little we can do about circumcision banBy Raphael Ahren
German parliamentary system won’t allow for unambiguous legislation affirming right to Jewish ritual, MKs told; court ruling already having an impact in Berlin, Cologne
While some German lawmakers are considering drafting legislation that would enshrine parents’ rights to circumcise their children, there is little else the German government can do about last month’s decision by a local court that effectively outlawed the procedure, Berlin’s ambassador to Israel said Monday.
“I ask for your understanding that the federal government — I represent Germany’s federal government here in Israel — respects the independence of the German judiciary. That is no different by us than it is with you. Therefore, my abilities to comment on this judgment are limited,” Ambassador Andreas Michaelis told the Knesset Immigration, Absorption and Diaspora Affairs Committee.
Yet Michaelis emphasized there is no law in the German books that prohibits circumcisions and that the controversial court ruling only applies locally. “This verdict is not binding for other courts. It’s a decision based on a single case,” he said.
[No specific law, no, any more than a law against cutting off earlobes. But the Basic Law (~Constitution) is clear.]
Last month, the District Court of Cologne ruled that parents who had their sons circumcised could be prosecuted for causing bodily injury, even if they did so for religious reasons. In their decision, the judges stated that neither the rights of parents nor the constitutional freedom of religion could justify the procedure’s “severe and irreversible interference into physical integrity.”
As a consequence of the Cologne ruling and the resulting “lack of legal clarity,” the Jewish Hospital of Berlin announced it would cease to perform circumcision “until further notice.”
Oded Wiener, the director-general of Israel’s Chief Rabbinate, said the rabbi of Cologne, Jaron Engelmayer, told him that the repercussions of the court’s decision were already being felt, as the mohel, or ritual circumciser, who usually performs the rite in the city is now afraid to do so.
“The German government will study this judgment very thoroughly and carefully consider possible consequences of this decision,” Michaelis said at Monday’s Knesset session. He also sent a letter to Knesset Speaker Reuven Rivlin, in which he reiterated that circumcisions are “accepted legally and societally in Germany” as a medical procedure, if a child’s parents agree to have the operation performed.
But the more than half-dozen MKs [Members of the Knesset] in attendance were unsatisfied with Michaelis’ pledges and took pains to reiterate their message regarding the importance and urgency of the situation.
“We are very worried. It’s an important issue to the State of Israel and the Jewish people,” said MK Danny Danon, who chairs the committee. “I understand that this legal case is closed and that we cannot reopen it.
Therefore we expect to see a legislation process in the German parliament, and if this issue comes up in other parts of Europe, also there. We expect this legislation to be absolutely unambiguous so there shall remain no doubt about the ability to perform circumcisions.”
While at least three parties in the Bundestag are considering drafting legislation that would allow religious groups to perform circumcisions, Michaelis said it was not clear that this would be possible. Some German lawmakers pointed out that the German legal system is based on a “principle of prohibitions” — as opposed to laws permitting certain actions — he said. That means that complete legal certainty regarding the performance of circumcision might remain elusive, he added.
MK Shlomo Molla said the centrality of circumcisions is one of the few issues on which there is a consensus among Jews across the world. MK Marina Solodkin said there was no reason to explain to anyone why the ritual is important to Judaism, and called on Diaspora Jews to immigrate to Israel.
A mohel himself, MK Haim Amsallem recalled that his father risked his life performing the procedure during World War II in Algeria, saying that Jews always sacrificed their lives rather than forgo the commandment of circumcision.
‘In the case of Germany, especially because of the special guilt for the Holocaust, I understand all the more that you are justifiably sensitive’
MK Yisrael Eichler also brought up the dark chapters of German-Jewish history. He told the story of a woman who, on the day the Nazis came to kill her, ran to her rabbi to demand a knife. “’What do you need a knife for?’ the rabbi asked. ’I have a baby who hasn’t been circumcised. I want to circumcise him before he goes to his death.’ ‘He’s going to die, why do you need to circumcise him, the rabbi asked. She answered: ‘I want him to die as a Jew.’”
“Circumcision is the root and the foundation of the Jewish people,” Eichler concluded.
Michaelis replied by saying that he appreciated the MKs’ remarks and that he would convey them to his superiors in Berlin.
“I understand the sensitivities felt by you and by Jews outside Israel. In the case of Germany, especially because of the special guilt for the Holocaust, I understand all the more that you are justifiably sensitive,” he said.
Michaelis pointed out that the Cologne court had ruled that circumcisions are merely considered a minor bodily injury. Had the court defined the procedure as a severe bodily injury, all local prosecution offices in Germany would have been obligated to look for offenders. In the current situation, a mohel would only be subject to penalty if someone actually took him to court in the jurisdiction of the Cologne district court.
“I know that this is not satisfying, and that a feeling of legal uncertainty persists in the Jewish communities,” Michaelis told the Israeli lawmakers. “Your colleagues in Germany are already on summer break but I am sure that this question will be picked up again if we assess that this judgment genuinely creates legal problems in Germany.”
The Cologne court case has been widely discussed in the German media as well as Jewish communities across the world, with countless Jewish leaders and German politicians and opinion makers condemning the court’s decision.
The president of Council of Jews in Germany, Dieter Graumann, called the judgment “outrageous and insensitive,” and called upon the German Bundestag to “create legal protection and thus safeguard freedom of religion from such attacks.” In response to the general outcry, German Foreign Minister Guido Westerwelle, reiterated that his country was committed to protecting the “free exercise of religion.”
The issue brought together representatives of Jewish and Islamic communities in Europe, who are both affected by the ruling. “We consider this to be an affront on our basic religious and human rights,” a joint delegation of Jewish and Muslim officials declared Monday. “We will vigorously defend our right to maintain our mutual tradition and call on the German Parliament and all political parties to intervene in overruling this decision as a matter of urgency.”
Some Jewish groups outside Germany went as far as accusing the country of “overt and explicit anti-Semitism.” An online petition by the US-based Jewish Press newspaper asserting that Germany “has absolutely no moral or ethical right to pass any laws or make any statements regarding Brit Milah (circumcision) or on any other Jewish practice,” was signed by more than 10,000 people. The Jewish Press said it planned to hand the petition, which calls the circumcision ban a “mark of shame on the German people,” to Berlin’s embassy in Tel Aviv.
[A counter-petition in support of the law.]