San Francisco, and possibly soon, Santa Monica, are going to have initiatives for upcoming municipal elections concerning whether or not those cities will adopt bans on the circumcision of males under the age of 18. Meanwhile, Oregon is likely to remove the “faith healing” defense to criminal charges of child neglect resulting in the disfigurement or death of children caused by parents withholding standard medical care from children and opting instead to seek healing for their children only through prayer. The political movers behind these efforts, well-intentioned in both cases and, in my opinion, laudable in the latter, are nevertheless playing with Constitutional fire.
The cultural roots of circumcision go back at least to the Sixth Dynasty of Egypt but as practiced today the cultural power of circumcision derives from religion. We don’t circumcise our boy-babies becasue some but not all Egyptians in did it; we do it because the Hebrews did it and Western culture traces its religious identity back, ultimately, to the worship of the foreskin-hating Jehovah in the bronze age middle east. Hebrew tribal traditions about circumcision are memorialized in some rather bizarre passages of the Torah. (Exodus 4:24-4:26; angered by the fact that Moses could get a woodie with a hoodie, Jehovah gets in to a bar brawls with his chosen prophet, but Zipporah is there to save the day.) This practice was something of a stumbling block for expansion of the early Christian church, and has been adopted by Muslims.
Confident atheist and strong advocate for separation of church and state that I am, the religious origins of this practice cause me no discomfort. Many elements of our culture have ancient and religious origins. The lack of a similar cultural tradition for female circumcision explains the abhorrence our culture feels for that practice; it is in fact a Federal crime to circumcise a girl in the United States.
Faith healing, however, has a much more dubious history; while Christians in particular celebrate the healing miracles described in the Gospels, in practice most people are very skeptical of instances of modern faith healing. And for good reason; upon superficial inquiry many instances of publicized faith healings are found to be frauds and plants, and even a lot of sincere efforts to heal the genuinely sick with prayer are coupled with application of more traditional and scientific healing techniques, making it very unclear that prayer, faith, or divine intervention have had anything to do with a patient’s recovery from illness or is attributable to a placebo effect. One study even suggests that a patient’s knowledge of receipt of intercessory prayer has a retrograde effect on recovery from serious illness. At any rate, it is very easy and natural to morally condemn to parents who have children with (at least initially) easily-treatable illnesses who withhold medical care and rely solely on prayer and religion as instruments of healing.
All of which is very interesting on a moral level but when the law starts to get involved we encounter some tougher questions. As I noted above, Congress has criminalized female circumcision. But I cannot, for the life of me, think of any articulatable Federal interest in its doing so. Female circumcision seems to coincide with none of the enumerated powers of Article I, Section 8. As strong as my moral reaction to the practice is, I’m not at all sure that it’s a Federal issue.
But the two recent political moves, in some of California’s more traditionally liberal cities and in Oregon, implicate another and more controversial Constitutional issue — the right of parents to raise their children in the way they see fit. This is controversial legally because the doctrinal origins of this right are part of “substantive due process” (hereinafter “SDP”), a reading of the Fifth and Fourteenth Amendments’ due process clauses that amounts to “There are some things that the government just plain can’t do even if they aren’t explicitly prohibited in the Constitution.” This is so regardless of the fairness or appropriate legal formalities used to adopt the putative governmental actions. Some legal scholars and jurists contend that this reading of due process is deeply erroroneous and even though I agree with the basic proposition of SDP, I will readily concede that the intellectual linkage between the wording of the constitution and this notion are weak. Perhaps because of the use of SDP jurisprudence within cases like Roe v. Wade (abortion rights) and Lawrence v. Texas (right to engage in consensual adult sodomy), the legal scholars and jurists quick to relegate SDP tend to be those who are popular with the socially conservative side of our nation’s ongoing cutlural dialogue.
As relevant here, SDP comes up in some cases that are nearly a century old: Meyer v. Nebraska and Pierce v. Society of Sisters. In Meyer, the Supreme Court held that SDP prevented the State of Nebraska from banning the teaching of German in private schools. And in Pierce, the Supreme Court said that the state of Washington could not require that all children attend public school rather than private (read: Catholic) schools. Taken together, Pierce and Meyer explicate that parents have the ultimate right and power to raise their children as they see fit, even contrary to the preferences and wishes of the state. The Supreme Court has grounded that parental right in the intellectual foundations of SDP.
The basic limits of SDP are now governed by the case of Washington v. Glucksberg, a 1996 case challenging a ban on medically-assisted suicide. The formal test for limiting the government’s power under SDP articulated in Washington v. Glucksberg is: the proposed individual right in question must be 1) “deeply rooted in this Nation’s history and tradition,” and 2) “implicit in the concept of ordered liberty,” such that “neither liberty nor justice would exist if they were sacrificed,” and 3) susceptible to a “careful description” of the asserted fundamental liberty interest.
Parents of children in Santa Monica, San Francisco, and Oregon are all likely to challenge the proposed laws as infringing on their religious liberties. Do parents have a religious liberty right to circumcise their boy-babies? Do parents have a religious liberty right to withhold scientific medical care from their sick children in favor of intercessory prayer?
As to circumcision, I think they do. Circumcision is deeply rooted in the USA’s tradition and history; we’ve been circumcising our boy-babies here for a long time now. If parents were not allowed to circumcize their babies, those parents who have strongly-held religious beliefs that their boy-babies must not have foreskins in order to be accepted by God will face eighteen years of horror, and then the young man entering that tradition as an adult would face a much more painful and identity-harming procedure of adult circumcision, to fully enter their religious communities. By way of contrast, infant circumcision is much less painful and leaves functionally no psychological scars nor denies any natural bodily functions to the circumcized boy. As an adult, the now foreskin-less young man may enter his family’s religious community or not, as he chooses, without having to undergo the pain of adult circumcision. Denying that seems contrary to the idea of ordered liberty to me. And whether a parent can circumcize an infant child or not is readily susceptible of clear description.
On the other hand, I’m less confident about the first prong of the Washington v. Glucksberg test in the Oregon situation. Looking back over our history, I do not see a tradition as strong or vibrant in our culture of parents relying only on faith healing. Indeed, I see some cultural revulsion to doing so, outside of small and intensely religious communities. While I won’t deny the sincerity of the parents’ faiths in those communities, mainstream society in America seems to say to parents of sick children, “By all means pray and ask for God’s assistance. But take the kid to the doctor, too!” Evangelists tell a joke about a man in a flood who rejects offers of assistance from, variously, firefighters, neighbors, boaters, and helicopters, saying “No, God will save me,” who then drowns and confronts God, who says, “Hey, I sent you a firefighter, a neighbor, a boater, and a helicopter!” The joke points to what seems to me to be real American culture and tradition regarding the confluence of faith and medicine — if God works to heal the sick, he’s likely going to do it by way of a doctor. Furthermore, ordered liberty can exist in a situation where parents are compelled to seek traditional medical care in addition to intercessory prayer; there is no ban on prayer here. It gets a little more complicated when one considers, say, the religious ban on blood transfusions of some kinds of faith (Jehovah’s Witnesses come to mind here, and I suspect that a Muslim or a Jew might reject the motion of using the valve of a pig heart in certain kinds of cardiac operations) but in many such cases, science has developed workarounds and approximations to accomodate those issues.
It’s nevertheless worth considering that these laws would indeed restrict the religious liberty, and the parental liberty, of parents. You and I may disapprove of the way that they use those liberties (in my case, only in the faith healing situation; I have no particular objection to infant male circumcision) but the point of liberties is that people get to use them as they like regardless of the disapproval of others. Protecting the common good while preserving individual liberties is a difficult balancing act indeed. Not everyone will make the same choices I would in particular situations, and as a rule I think the public should only get involved when a serious public interest is implicated by individual choices. Infant male circumcision does not seem to implicate such a public interest, where withholding medical care from sick children does.
as practiced today the cultural power of circumcision derives from religion. We don’t circumcise our boy-babies becasue some but not all Egyptians in did it; we do it because the Hebrews did it and Western culture traces its religious identity back, ultimately, to the worship of the foreskin-hating Jehovah in the bronze age middle east
I don’t think this is correct at all. For many centuries, Christians considered circumcision to be a specifically Jewish rite, and a Christian caught practicing it himself was presumably guilty of a Judaizing heresy.
It was only in the Victorian era when circumcision became a common practice among Christians, and even then only in the English-speaking world. Nowhere else.
Even here, it was not intended in any sense to show respect or honor to the Jews. The goal was to stop boys from masturbating. A perfectly ineffective remedy for a perfectly imaginary problem.
We have taboos in the United States today, and some things are ritually unclean in our culture (including the foreskin). And yet these things have no religious foundations at all. The remedy for a dirty foreskin isn’t circumcision. It’s soap and water, as with the rest of the body.
So would I vote for the San Francisco initiative? Well… no. Not without a religious exemption. Add one in, and I might vote for it. We think it wrong to tattoo babies, don’t we? Why should circumcision be different?
As to female circumcision, I support a ban in all cases, though I agree it should be handled at the state and local level.
While male circumcision may present some complications and result in some loss of sexual sensitivity, even men circumcized as adults offer varying self-reports. Some are happier, some are not.
Not so with women, where the “circumcision” is not merely a “cutting around,” but usually entails the removal of the clitoris. If this is not a crime, then we might as well remove assault from the lawbooks, too. This is like cutting off a baby’s foot or breast. Totally inexcusable.
Of course, I’d prefer to see assault prosecuted on the state level.
I could be wrong, but I believe the bans on female circumcision apply to the “clitoral nick” procedure, as well as the traditional genital mutilation.
I had heard some of what you say about circumcision as an English-speaking and historically recent phenomenon, but I hadn’t heard that it was thought to deter masturbation. As if. My understanding of it these days is that it’s “just what you do” more than anything else.
Upon further reflection, if it is the case that circumcision is a relatively recent historical phenomenon, that diminishes the strength of the argument that circumcision is deeply rooted in our history — if the tradition of male circumcision is not based in religion and only about 100 years old, it might not qualify as part of the parental right under Washington v. Glucksberg. That would change my analysis somewhat, although it might not change the result that the ban is on shaky constitutional ground, since the Free Exercise Clause angle was not one I explored in the main post.
Have you considered it from the point of view of HIS Free Exercise of HIS religion as an adult. Sikhism values an intact body, not even cutting the hair. (I don’t think Sikhism would exclude a circumcised convert, but it’s not preposterous: one religion [Roman Catholicisim] refuses to ordain as priest a man who has had another genital modification [castration] even if it was against his will. Celibacy wasn’t meant to be easy!)
Burt: Male circumcision was introduced in America about 1873 by Philadelphia Doctor A.J. Sayre for the purpose of stopping masturbation. It was also advocated as punishment of masturbation and was recommended to be performed without analgesia as a punishment.
It really didn’t start catching on until about the 1920’s but by WWII, the practice was well entrenched as a result of the medical profession who found it to be very profitable. So profitable in fact that many doctors of the 1950’s and 1960’s performed circumcisions on all male babies regardless of whether the parents wanted the child circumcised or not. This happened with two of my cousins and I know of one man who got into fisticuffs with his daughter’s doctor because of this.
The practice only stopped as a result of a 1973 court case. A hospital circumcised a Jewish boy depriving the parents of a ritual circumcision and they took it to court. The court awarded a large judgment.
Hospitals across the nation took notice and instituted strict rules that parental consent always be obtained. largely, doctors took notice and obtained consent but they became “salesmen” as well and there are many personal accounts of extreme solicitation for the procedure. One I particularly remember was a case of a Hispanic couple who were told it was required by law.
In a more recent case in Florida, a Hispanic mother told hospital employees several times that her son was not to be circumcised. Hispanics do not have the cultural practice of circumcision. The boy (Mario) was circumcised anyway. The parents filed suit against the hospital and the doctor.
Solicitation for the procedure is not uncommon. I’ve read reports from mothers of being solicited by doctors and nurses repeatedly when they did not agree. According to the reports, the solicitations were quite aggressive and repeated with dire warnings accompanying the solicitations.
Probably one of the worst cases I have seen involved Atlanta, GA’s Northside Hospital. Three boys lost their entire penises on three different shifts and by three different doctors due to the doctors using an electro cautery machine that was too powerful for the procedure. The parents brought suit but settled with the equipment manufacturer for $22.8 million. One of the boys had sexual reassingment surgery but the fate of the other two has not been made public. It was expected the other two boys would bring suit on their own after turning 18 years old but the window of opportunity has passed with no suits being filed.
In reality, infant male circumcision in The US has only become common in the last 70 years. That’s when it first approached 50%. That would suggest to me that it is not “deeply rooted in American history.” It would not have become common if not for the medical profession’s eagerness for the almighty dollar.
On another angle . . . The 1996 Female Genital Mutilation Law specifically excludes males from it’s protection. This would appear to violate The 14th Ammendment’s “Equal Protection Clause” that says all laws must be equally applied to all classes of US residents. Would you address this?
Also, there has been much speculation that the San Francisco measure would be challenged on First Ammendment grounds. In re-reading The First Ammendment, I see no justification for a challenge. Can you explain?
The Supremes have ruled in previous cases where there are conflicting rights that “The one with the most to lose, prevails.” The child is at risk of losing part of his body in a painful and (somewhat) dangerous procedure/practice while the parents only lose the right to practice one of 613 religious laws. Who would prevail in this case?
The practice/procedure does have dangers. Historically, 2228 – 230 babies have died in The US every year from their circumcisions. Only because the circumcision rate has fallen from the mid 60% range to 32.5% (2009) has the number of deaths fallen by about half. The death rate has remained constant at about one death per 7,000 procedures. Over the last 30 years, about 7,000 infants have died from the practice. What can be done (from a legal action standpoint) to stop these needless and pointless deaths?
It is spreading around that infant circumcision is a “parental right.” This is confusing to me. The male foreskin is apparently the only part of a child’s body that can be removed/amputated simply on parental demand and without medical indication. Is this right codified somewhere or is just accepted by widespread practice? would it be a “right” from a parental standpoint to demand removal of any other body part of an infant and be accomodated? If “no,” what are the potential legal rammifications for parents if the child decided to bring suit once he turned 18 years old?
On religion, male circumcision is not significantly assocated with religion in The US. Only Jews and Muslims circumcise for religious purposes. The New Testament is quite clear that male circumcision is not acceptable and there is Papal Bull clearly stating this. Jews are 1.75% of The US population and Muslims are an even smaller portion. This means that 97% (or more) of all US infant circumcisions are non-religious.
Hebrew tribal traditions about circumcision are memorialized in some rather bizarre passages of the Torah. (Exodus 4:24-4:26; angered by the fact that Moses could get a woodie with a hoodie, Jehovah gets in to a bar brawls with his chosen prophet, but Zipporah is there to save the day.)
You know, I followed your link, but I thought you were talking about Exodus 4:2-6. Just got the numbers wrong in my head, helped along by the highlighting at that fantastic site.
I’d read this passage many times before, but I’d never connected it to circumcision. My mind was opened so far that my brain about exploded:
4:2 And the LORD said unto him, What is that in thine hand? And he said, A rod.
4:3 And he said, Cast it on the ground. And he cast it on the ground, and it became a serpent; and Moses fled from before it.
4:4 And the LORD said unto Moses, Put forth thine hand, and take it by the tail. And he put forth his hand, and caught it, and it became a rod in his hand:
4:5 That they may believe that the LORD God of their fathers, the God of Abraham, the God of Isaac, and the God of Jacob, hath appeared unto thee.
4:6 And the LORD said furthermore unto him, Put now thine hand into thy bosom. And he put his hand into his bosom: and when he took it out, behold, his hand was leprous as snow.
Thy rod and thy staff, they comfort me.
Dude.
I agree with the cultural and tradition based argument for keeping circumcision legal. I think the strongest argument for making illegal is more along the lines of thinking of circumcision as child abuse. While we correctly accord parents great leeway in raising their kids there are some things the can’t do: no intercourse, no starving, no breaking bones for punishment, etc. Religious parents don’t get to screw their kids and call it prayer. I wouldn’t vote for the anti-circ measures myself but i think their argument is stronger then you are presenting it.
What about branding? Neck-stretching? Earlobe- and nostril-expansion? Permanent epiliation?
While culture is a powerful weight, sometimes it just doesn’t make any sense. If you want to circumcise your baby boy as a sign of a covenant from God, I don’t quite think it right to stop you. But if you’re doing it because (a) foreskins are yucky (b) dad had it done or (c) you don’t want him masturbating, then you don’t have a good enough reason. Sorry.
If you haven’t cut your tongue in half because (a) split tongues are yucky (b) dad didn’t do it or (c) you think split tongues promote promiscuity, then you don’t have a good enough reason to not cut your tongue in half. Sorry.
It’s one thing for me to go in and cut my tongue in half for whatever dumb-assed reason I felt like.
It’s another thing for me to go in and have your tongue cut in half because I want to make sure that you never get tempted to perform certain perverted acts like “whistling”.
Though I’m not sure I’m a fan of the government being able to say that parents can’t have their children’s tongue cut in half because of Wadjet worship… or because of some minor public health benefit of same.
If there is a public health benefit of tongue cutting, isn’t the comparison to vaccination at that point? Even if the purpose is some dumb-assed reason?
If you haven’t cut your tongue in half because (a) split tongues are yucky (b) dad didn’t do it or (c) you think split tongues promote promiscuity, then you don’t have a good enough reason to not cut your tongue in half. Sorry.
The burden of proof lies on the person doing the cutting. Sorry.
Besides, (a) it’s my tongue (b) I don’t want to and (c) even if I did, I’m an adult, and it would be my perfect right. If I wanted to do it to my daughter, I’d bet you’d be on the other side of this silly non-issue.
Oy. Are you, or anybody, arguing there are no limits on what a parent can do to there child?
Not at all. I’m against routine infant circumcision. Just like I’m against routine infant tattooing.
I’m willing to make a reluctant exception for religious circumcision, but only because it’s got a long tradition. “God told me to last week” isn’t sufficient reason to cut off your kid’s earlobes.
I’m not comfortable with making the length of the tradition the standard with ascertaining whether a religious tradition is valid or not or should be protected or not. For judges or policymakers to make those types of determinations, it would put them into the position of defining what is “truly” part of a religion and what is not, and what counts as religious tradition and what is merely a cultural marker. As far as the religious aspect is concerned, I think “God told me to last week” is acceptable.
Now, if there are other reasons to ban the practice or any practice, then those ought to be considered. But if we’re talking about religious exemptions only, I think the standard should be the sincerity with which the religious convictions are held.
@ Jason Kuznicki: “I’m willing to make a reluctant exception for religious circumcision, but only because it’s got a long tradition.”
Female circumcision has a long history for Muslims. Since it has this, would you advocate the 1996 FGM Law be abolished?
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I’m not making that argument. I am pointing out that the Constitution at least ostensibly cloaks a parental decisions, even ones that we would find questionable at best, in the mantle of the right of substantive due process and religious liberty. And I’m hoping for a discussion of when and how those Constitutional liberties need to bow to other concerns, like protecting against child abuse.
I’d say I’m pretty much getting that discussion, too, although not in quite the flavor I’d thought it would come in; I thought the medical neglect angle was worth discussion too. But I should have realized that sick children wasting away due to parental neglect is just plain depressing, whereas everyone enjoys talking about penises.
@ Burt Liko: “I’d say I’m pretty much getting that discussion, too, although not in quite the flavor I’d thought it would come in; I thought the medical neglect angle was worth discussion too”
Are you saying to not circumcise a male child would be “Medical neglect?” Do you know there is not one foreskin related medical issue that can not be adequately and successfully treated with simple medications instead of amputation?
Just a little science here: There is the myth of the infected foreskin that stubbornly resists treatment and “Has” to be amputated. This is an urban myth. The pathogens (bacterials, virals and fungals) that infect the male parts are the exact same ones that infect the female parts without exception. These pathogens can not discern or discriminate between male and female cells. Females are always treated non-invasively and without excising the parts. It follows that males can be similarly treated successfully.
Not a single medical fraternity in the world advocates male circumcision for any health effect, not a single one! In fact, many are moving closer and closer to advocating against it.
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WTF you talkin’ ’bout, Brother O’Hara? World Health Organization:
There is compelling evidence that male circumcision reduces the risk of heterosexually acquired HIV infection in men by approximately 60%. Three randomized controlled trials have shown that male circumcision provided by well trained health professionals in properly equipped settings is safe. WHO/UNAIDS recommendations emphasize that male circumcision should be considered an efficacious intervention for HIV prevention in countries and regions with heterosexual epidemics, high HIV and low male circumcision prevalence.
http://www.who.int/hiv/topics/malecircumcision/en/index.html
^^ {WHO says circumcision may play a role in HIV transmission } ^^
That 2007 policy is about ADULT VOLUNTARY circumcision in places with rampant HIV and poor condom access, and it does not reflect more recent findings by the same research teams that led to that pronouncment:
Wawer/Gray 2009: Circumcising Ugandan men made them 50% MORE likely to infect their partners with deadly HIV.
Bailey 2010: Circumcised Kenyan men no less likely to have HIV after all.
2011, Xiangrong Kong, PhD, of Johns Hopkins University, the other way:
http://www.medpagetoday.com/MeetingCoverage/CROI/25106
But I appreciate the 2009 Wawer/Gray demurral. This tells me
a) The issue is still not settled.
b) The issue will likely not be settled, as this has become yet another cultural political football in the academy.
^^ I appreciate the 2009 Wawer/Gray demurral. This tells me a) The issue is still not settled. ^^
I disagree. The matter is absolutely settled. Sexually transmitted HIV is irrelevant to an infant. As the Royal Dutch Medical Association stated in 2010, parents must be actively and insistantly discouraged from circumcising due to the “absence of medical benefits and danger of complications.”
But I also have a problem with Kong, which is that it was not a random sample. The men selected themselves into the trial arms. And of course it was not blinded at all; the overall study methodology involved much more interaction with the doctors/counselors for the cut men than for the men remaining intact.
@Frank OHara
No, I’m not willing to make an exception for a procedure that makes orgasm impossible. At some point, the basic anatomical differences between the procedures do matter. There are similarities between the two, but that’s one hell of a difference.
@ Tom Van Dyke: “There is compelling evidence that male circumcision reduces the risk of heterosexually acquired HIV infection in men by approximately 60%. ”
Any epidemologist can tell you this is a lie. This is a similar efficacy as the polio vaccine that wiped that disease from the country in just one generation. If male circumcision offered the efficacy claimed, we would not know HIV/AIDS in The US. It would simply run into roadblocks virtually everywhere it turned and die off.
> Do parents have a religious liberty right to circumcise
> their boy-babies?
I regard this as a somewhat offensive, but largely of transitory detriment to the offspring. So, I suppose, if one must couch it in those terms. There is open argument as to whether or not the health benefits (and there are some) outweigh the loss of sensitivity. While I think this is a silly decision to make for someone else, I don’t think it’s of a horrible rights-violation class decision.
> Do parents have a religious liberty right to withhold
> scientific medical care from their sick children in
> favor of intercessory prayer?
In practice, it could be difficult to determine if this causal link existed. Lots of medical care comes with risk attached. In many cases, one could plausibly argue that they thought a procedure was too risky for the benefit.
I think a better way to phrase this question, though, is, “can you use religious justification as a defense for neglect”, and there the answer I rightly believe is “no”.
If a minor child dies because they have not received medical care, and a district attorney believes that they can make the case that this was done willfully on the part of the parents, they ought to be able to level charges of neglect, and religious belief ought not to be a sufficient defense. They can go on believing that medicine is the Devil behind bars. I’ve got no call to demand they change their belief, but I have sufficient justification to demand they live with the consequences thereof.
I think in practice, the causal link would be very easy. Consider the sad deaths of Kara Neumann and Ava Worthington. The parents were very forthright in admitting that they did not seek traditional medical care in favor of a prayer-only “treatment.” I suppose in some cases it might be difficult to link the failure to provide medical care to the death or injury of the child, and a motivated defense attorney could find a
doc-whoreprofessional medical expert to testify that the risks of medical care were great or the outcome would have been uncertain. But getting proof that the faithful parent made a conscious decision to rely on prayer alone would be pretty easy.I dunno, Burt, this is one of those times when past performance is likely not indicative of future behavior.
People routinely opt their kids out of vaccinations here in CA on religious grounds, even when they ain’t got no religious grounds to stand on. Because they found out that you could.
Right now, the assumptive default is that you *can* refuse things on religious grounds and that’s okay. So people fess up to it right away and expect that it’s an okay defense. Changing that assumptive default will likely (in my guess) change people’s willingness to open up about how much they believe in faith healing, at least to their doctor.
Then again, I could totally be wrong. People who strongly believe in faith healing likely strongly believe that it’s going to work, so why plan otherwise?
@ Pat Cahalan: “There is open argument as to whether or not the health benefits (and there are some)”
Not a single medical fraternity in the world espouses any significant “health benefit” any longer. All of the benefits are a left over from the late 19th and early 20th centuries.
“I don’t think it’s of a horrible rights-violation class decision.”
I find this interesting. I suspect it is due to the (fairly) widespread belief that the foreskin is a part with no sensitivity and no function. If someone clearly believes this, it is an easy leap to think it can be cut off and discarded without damage or effect. In fact, the foreskin does have a sexual function to both the man and his female partner and there can be serious problems associated with it’s absence such as premature ejaculation and female arousal syndrome. (I’ll explain if you like) In light of this, it is predictable that you would not think it is a rights violation. But beyond this, it is apparent that a significant number of men believe that there is sexual damage and whether it is true or not, in this light it does become a “horrible rights-class violation. You might like to search “foreskin restoration.” 200,000 men are engaging in a long and arduous process of restoring their foreskin to regain their full sexual function.
“on believing that medicine is the Devil behind bars. I’ve got no call to demand they change their belief, but I have sufficient justification to demand they live with the consequences thereof.”
Over the last 30 years, more than 7,000 infants have died as a direct result of their circumcisions. Should the parents and doctors involved “live with the consequences thereof?” (prison time?)
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@Jason Kuznicki: “No, I’m not willing to make an exception for a procedure that makes orgasm impossible. At some point, the basic anatomical differences between the procedures do matter”
Jason, do you know that 90% of circumcised women report a satisfying sex life? Do you know that they report having orgasms? Do you know that 90% of circumcised women are so satisfied with their alteration that they insist on it for their daughters?
It really sounds like you need to do some more research into the issue to get the real story. It is not as bad as some decieve you into believing.
Jason, do you know that 90% of circumcised women report a satisfying sex life? Do you know that they report having orgasms? Do you know that 90% of circumcised women are so satisfied with their alteration that they insist on it for their daughters?
Yes! I am aware of it, so ditch the condescension.
If male circumcision made orgasm impossible in 10% of recipients, I’d want to treat it the same as female circumcision. It doesn’t, so I don’t.
There are gradations of harm here that you simply fail to recognize. Perhaps you think that by adopting a more radical stance you will win more people to your side. But it only makes you look like an extremist and — get this — causes the unconvinced to choose in favor of male circumcision.
You’re destroying your own cause, and that annoys me, because I too am against male circumcision.
Both Antiochus and Hadrian forbade circumcision; the results were, respectively, the Maccabees and the Bar Kokhba revolt.
So be careful.
Yes, and a ban on slavery was followed by the Civil War. Should Abe Lincoln have been more careful? (Just an analogy. I know circumcison is not as bad as slavery.)
Yes, and a ban on slavery was followed by the Civil War.
Really? What year was slavery banned?
@ Mike Schilling: “Really? What year was slavery banned?”
1863.
Do foreskins interfere with the recognition of rhetorical questions?
Burt, your arguments follow no logical reasoning whatsoever. “without having to undergo the pain of adult circumcision” what? This couldn’t be a more biased assumption towards circumcision. Not circumcising denies liberty? How do you justify that in any logical manner? Speaking of liberty, why do you not mention of the fact that the person receiving the circumcision cannot give consent? Where is the liberty there?
If I am a devout Jew, being prohibited from circumcising my boy-child denies me the freedom to practice my religion in the manner required by my ancient holy books.
If I am a parent who thinks that a circumcised boy will masturbate less and thereby gain some inchoate advantage, that’s my judgment as a parent (however flawed that judgment may seem to others). If the state interferes with my acting on that judgment, my ability to raise my child in the manner that seems best to me is restricted.
That’s not to say that a person should have absolute freedom to do whatever they want to their children under the cloak of religious freedom or parental rights. It is to say, though, that a parent’s liberty is restricted by these laws, so we ought to be thinking about that side of the balance.
Adult circumcision is painful; even if the surgery is performed under anesthesia, adult men, unlike boy-babies, get erections, which would be painful for a time after the surgery until the tissue has healed. Conceded (point below) that we can’t really know whether infant circumcision is painful, but in my observation babies in general are not particularly shy about expressing discomfort and the times I’ve been invited to a bris I’ve not seen the kids do all that much more crying after the ceremony than before.
As to the liberty of the infant, parents make decisions on behalf of their infants all the time. Will the child get the MMR vaccine? Will the child take piano lessons? What will the child’s diet be? That’s what it is to be a parent — you make decisions for your child that directly affect your child, and as a society we rely on the assumption that people love their children and thus will make well-motivated decisions as best they can. A decision to initiate a child in one’s own religion, in the manner prescribed by that religion, strikes me as no different than any of these other sorts of parental decisions.
If a father believed his religion dictated amputating his child’s arms and legs, would you consider this a liberty interest worth weighing — even if, in the final analysis, you did not determine in its favor?
I wouldn’t. If we have to err, we should do it on the side of bodily integrity.
Of course, there is a voluntary solution to all of this as well. Just drop circumcision from the procedures covered by medical insurance. The parallel isn’t perfect, but when Canada dropped it from their national health care plan, suddenly parents had to pay for getting their boys cut. When they did, circumcision rates rapidly declined.
That’s actually quite reasonable. It is elective surgery with no medical benefit. And mohels don’t charge a fee — they’re in it for the tips.
no medical benefit
From what I understand, they have discovered that the shorn have some increased resistances to certain viruses.
If this is the case, is there a level at which we, as a society, can say “the public health benefits outweigh your silly attachment to increased sexual pleasure”?
Actually, I would weigh that interest. As framed, that claim of religious liberty interest would quite obviously not outweigh the harm to the subject child and to society in general, but that does not mean that the religious liberty claim is frivolous or unimportant. That is to say, were I the judge faced with such a petition, I would make every effort to keep an even temper when I said, “I’m confident that your religious belief is sincere, sir, but I deny your request.”
As a nation, we have embedded in our Constitution and our national legal culture the notion that we take individual liberties, including those of religious belief, seriously. Now, those liberties must have reasonable limits placed on them if we are to live togehter as a society. Free speech rights have limits. Gun ownership rights have limits. Due process rights have limits. Religious freedom, too, has limits.
If the parent comes to the court with an apparently sincere religious belief about the need to do act “X” to the child, that claim needs to be addressed in a sober fashion. Addressing the claim with sobriety, however, is not the same thing as unreasonable deference to the liberty interest claimed. In the absurdly extreme hypothetical you pose, obviously that reasonable limit has been exceeded.
There is no other parental decision quite like this one – to cut a normal, healthy, non-renewable, functional body part off a non-consening person. A part that a man may very well wish he still had, one that has been treasured for centuries, see http://www.circumstitions.com/Pleasure.html . Shakespeare called it “My sweet ounce of man’s flesh!” (Love’s Labours Lost)
It is striking how differently this topic is debated in the UK, where most men are intact and automatically take that aspect into account.
(And boy-babies do get erections, in fact doctors and mohelim routinely procure them to define the glans before tearing the foreskin away from it – doctors by rotating a blunt probe inside, mohelim by jerking it forward. You can see all that here: http://www.youtube.com/user/mesholam8 NSFW)
That site shows brisot milah (with metzitzah, but not b’peh). These link to medical circumcisions: http://www.circumstitions.com/#pictures
@ Burt Likko: “If I am a devout Jew, being prohibited from circumcising my boy-child denies me the freedom to practice my religion in the manner required by my ancient holy books.”
Circumcising a child denies him the right of free choice of the religion he chooses. He is permanently branded in the religion of YOUR choice.
“If I am a parent who thinks that a circumcised boy will masturbate less and thereby gain some inchoate advantage, that’s my judgment as a parent (however flawed that judgment may seem to others).”
It would indicate you do not make good judgment calls in your parenting.
“If the state interferes with my acting on that judgment, my ability to raise my child in the manner that seems best to me is restricted.”
Parents of old believed that to “spare the rod is to spoil the child.” Of course, this is an outmoded belief now but in my childhood days, it was widely accepted and I recieved “the rod” quite often. Now, my father would be sent to prison for what he did if it were found out. It was his JUDGMENT of the best way to raise his children. That was his manner of raising his children but the treatment I got is clearly illegal now. It would clearly be seen as abusive in a court now. Shouldn’t our beliefs change with the times? Shouldn’t the courts also change with the times?
“That’s not to say that a person should have absolute freedom to do whatever they want to their children under the cloak of religious freedom or parental rights. It is to say, though, that a parent’s liberty is restricted by these laws, so we ought to be thinking about that side of the balance.”
Should parents have the right to cut off parts of their children? Something that has dawned on me is that the foreskin of MALE children is the only part of a child’s body that can be cut off on demand. Why not the ear lobes? Why not the last digit of the pinky finger? Why not the little toe of the right foot? Mine has always given me problems. If only it had been cut off shortly after birth!
“Adult circumcision is painful”
This is a myth. Adults get full *anesthesia* without exception and full follow-up pain management afterward. Infants only get *analgesia* about 6% of the time for circumcision and no pain management for the healing period.
“Conceded (point below) that we can’t really know whether infant circumcision is painful,”
Oh yes we can. The medical profession can accurately measure the indications of pain such as serum cortizol levels, heart and respiration rates and facial grimmacing. It is clear that infants undergoing even anesthesized circumcison are in horrible pain.
Stating the above assumes that uncircumcised adults will either have to be circumcised later or will choose to be circumcised later. Reserch shows this to be false. Only 6/10ths of 1% of uncircumcised adult males will be circumcised in later life. I know the stories of later circumcisions are common but most are just not true.
“As to the liberty of the infant, parents make decisions on behalf of their infants all the time. Will the child get the MMR vaccine? Will the child take piano lessons? What will the child’s diet be?”
I suspect you realize these are “straw man” arguments. Start talking about cutting off parts of the child and see how much sense they make and how much support you’ll get.
“as a society we rely on the assumption that people love their children and thus will make well-motivated decisions as best they can”
I’ll fully agree that parents love their children and their decisions may be well motivated but are they educated decisions???? In this case, I’d clearly say no in most cases especially 10 or more years ago before the internet was such a force. Even now, the most common reasons for infant circumcision are “because his father is circumcised,” “because everyone else is” and the ever famous “so he won’t be teased in the locker room.”
The father’s circumcision status should be no consideration. Everyone else is no longer circumcised. The current circumcision rate is 32.5% so there won’t be any teasing of genitally intact boys in the locker room. In fact, if there is any teasing, it will most likely be the circumcised boys that get the teasing as they will be viewed as an anomoly.
“A decision to initiate a child in one’s own religion, in the manner prescribed by that religion, strikes me as no different than any of these other sorts of parental decisions.”
So, if my religion required children to be tattooed on the forehead with a religious symbol, would you support me in that practice? If not, why not?
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I hadn’t been aware that circumcising a girl is a federal crime in the ‘States. Interesting, given that the genitals of intersex children are routinely subject to surgery, often for purely cosmetic reasons, up to and including full clitoridectomy. Again, the public’s feelings about this take us back to questions about what we accept as normal.
It seems to me that banning the circumcision of boys is a tricky one because an exception must be made for those cases (which do occur) in which it is medically necessary, and once that exception exists it could be exploited with reference, say, to studies which have shown that circumcised men are less vulnerable to contracting HIV – after all, we all know that not all boys wait until they’re eighteen to become sexually active.
As far as faith healing is concerned it’s easy to draw a line at ‘just prayer’, but there are many borderline religious healing techniques in relation to which it would be harder to demonstrate that parents did not believe they were using a practical (or even standard) form of medicine. From the Scientologists’ laying on of hands all the way to homeopathy, there are many difficult challenges. Which is not, of course, a reason not to try and make a start.
> Interesting, given that the genitals of intersex
> children are routinely subject to surgery
This raises an interesting side point.
Honestly, I don’t know what I’d do if one of my children was born a hermaphrodite. I have a strong natural tendency to not muck about with peoples’ persons, but I went through grade/high school and I can readily imagine that having both boy and girl parts would make at least the second half of that significantly uncomfortable.
People with Variations of Sexual Development (VSD) do not have “both boy and girl parts”. VSD can vary in degree; there may be just a slight variation of the genitals, such as hypospadias, where the urinary opening appears part way down the penis, or clitorimegaly, where the clitoris is bigger than usual. The standard by which a child is deemed to have a penis that is “too small” or a clitoris that is “too big” is purely arbitrary.
> The standard by which a child is deemed to have
> a penis that is “too small” or a clitoris that is
> “too big” is purely arbitrary.
But it exists, you’ll concede? Or no?
“the genitals of intersex children are routinely subject to surgery”
This is no longer as true as it was. The tiny intersex community spoke up, and the medical profession listened. The AAP’s “Consensus Statement on Management of Intersex Disorders” (CS) published in 2006 goes some way to addressing their concerns.
http://pediatrics.aappublications.org/cgi/reprint/118/2/e488
The CS recommends no vaginoplasty in children; clitoroplasty only in more “severe” cases”; and no vaginal dilation before puberty. It also states that the functional outcome of genital surgeries should be emphasized, not just cosmetic appearance. Perhaps most importantly it acknowledges there is no evidence that early surgery relieves parental distress.
@ Jennie Kermode: “I hadn’t been aware that circumcising a girl is a federal crime in the ‘States.”
Most industrialized nations have this prohibition. Sweden was the first in 1982 and others followed suit.
“It seems to me that banning the circumcision of boys is a tricky one because an exception must be made for those cases (which do occur) in which it is medically necessary,”
The law as proposed does allow for medical necessity. These cases are extremely rare though with about the same rarity as medically justified female circumcision which is allowed in the case of medical neccesity.
“and once that exception exists it could be exploited with reference, say, to studies which have shown that circumcised men are less vulnerable to contracting HIV”
That would be a future medical benefit, not a current one even if it were true. The circumcision/HIV thing is simply some circumcision fetishists trying to advance their agenda. Real life evidence and the science of epidemology clearly shows that male circumcision has no significant protection from HIV.
I’m skeptical of this claim.
Not that I affirmatively assert that it’s false, but how we can even know it to be either true or false? I accept that perhaps, infants being resilient, there are few long-term psychological scars, and the body heals. But I’m not so sure the pain, even if it lasts for “only” a minute is necessarily less traumatic for the infant.
http://www.circumstitions.com/Pain.html
I never understand how someone can say they are against female genital mutilation in one sentence, and then say they are for male genital mutilation in the second.
There are 20,000 nerve endings on a foreskin. If you’re circumcised from birth, you’re a blind man talking about how great it is to be blind.
Here is your first hint, “Why is it only popular in the US, Israel, and Muslim countries?”.
How is this any different? What if Christianity demanded we remove the left eye of each child? Would you just stand aside and let them? How about removing a limb? Cutting off the lips? Branding?
Physical body modification for religious reasons to children needs to be outlawed.
> Physical body modification for religious reasons to
> children needs to be outlawed.
There’s the “for” trouble again.
What about the intersex/hermaphrodite case brought up above? What if it’s for medical reasons, not religious ones.
Be careful with the law, T-bone. It can turn in your hand and cut you. The law likes bullet points, and it’s very unconcerned with cases that don’t match bullet points.
Am I allowed to beat my child? No, “the state will interfere” as you put it. The limit is reached when it goes beyond yourself and affects someone else. I was never arguing the pain of adult circumcision. You are still exhibiting a biased assumption towards circumcision. I’m not even going to address the other things you said (vaccines, diet, etc) that are beyond the scope of this conversation.
So what if I’m “exhibiting a biased assumption towards circumcision”? You’re “exhibiting a biased assumption against circumcision”.
Am I not allowed to have an opinion? Or am I only allowed to have an opinion which coincides with your own?
@ Burt: “Am I not allowed to have an opinion? Or am I only allowed to have an opinion which coincides with your own?”
Opinions aren’ t worth a tinker’s dam. Show some evidence. You’re a lawyer aren’t you? You know about evidence don’t you?
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Okay, apologies for the “way too much information” post.
I’m intact, as is my son. I’m personally against the procedure, as medically unnecessary surgery. I think it is an odd decision to make, just on the face of it, and I usually find that in parental groups, when the subject comes up, most people have really odd rationalizations to support their decision to go ahead with the procedure.
All that said, I’m with Burt:
> As a nation, we have embedded in our Constitution and
> our national legal culture the notion that we take individual
> liberties, including those of religious belief, seriously.
> Now, those liberties must have reasonable limits placed on
> them if we are to live togehter as a society. Free speech
> rights have limits. Gun ownership rights have limits.
> Due process rights have limits. Religious freedom, too,
> has limits.
I don’t see this as being a particularly necessary restriction on religious freedom. Society, in the form of the legal process, isn’t compelled to step into this decision because the question of harm isn’t clear enough to warrant the intrusion. A baby of my acquaintance recently underwent the procedure, and painful or not it clearly didn’t bother him as much as his daily colic does.
I’m all on board with people doing whatever they wish to try and convince the general public that the practice is essentially unnecessary and barbaric, that’s fine with me. I don’t think it’s a good problem domain to bring the law into it.
Having recently had a baby boy, I was a little worried we were going to get pressure to have him circumcised from the medical folks. Turns out there was no need to worry about that – our pediatrician did a very straightlaced “if you want to …” bit about it and then breathed a sigh of relief when we said “no”. I suspect that might be the locality though – lots of folks around here with no tradition of circumcision, and, of course, hippies. Might be a different matter if I’d decided to live in Nebraska.
The oddest rationalization I’ve heard so far was from a woman in my wife’s exercise class who believes circumcised men get more blow jobs. Seems maybe a little premature.
On the frequency-of-blow-jobs front, I tend to think that there may be factors in play much more important than circumcision or lack thereof; after all, the giver of said favor has more or less made up her (or sometimes his) mind to perform that particular act by the time “the reveal” is made.
I tend to think that among the many issues parents must consider when asked to make this choice about their newborn sons, the question of “Is this going to help him get his doad schlarved?” is probably pretty far down the list of priorities.
Ironically, my advice to the circumcised who complain about their lack of sexual pleasure is to take hothouse yoga and learn to auto-fellate.
I have been yelled at like I am part of the problem when I say that, I tell you what.
Nice.
The oddest rationalization I’ve heard so far is, “I want him to look like his father.”
I avoided blurting out, “Are you going to glue pubic hair on him when he’s three? Or is (foo) going to shave his genitals?”
Not to mention the sort of creepy undertones that imply one’s offspring ought to be checking you out on a routine basis when they’re old enough to note that there’s a difference.
This totally IS about personl liberty. It’s about the boy’s freedom to be free from harm to healthy normal body parts. That freedom is already protected for all other genders and all other body parts. Why is the penis an exception?
No, it isn’t.
I see people who have little girls with pierced ears at an age where they’re obviously not capable of giving their own consent.
Put another way: we already accept that children are in fact not capable of providing their own informed consent on lots of different issues. By default, the proxy voter for the child on this long raft of issues is *the parent*. There are some very limited cases where we allow society to chip in its $0.02, but almost all of those cases have exceptions.
Otherwise, in order to override the parent, we have a fairly exhaustive (and ineffective, but that’s a different issue) revocation process wherein we take the children away from the parent.
So here’s my question for you: what are the things that you want to remove from the parental discretionary list, other than this? And, given that religious freedom is a barrier you have to get over, what is your legal justification for proposing that you have standing to prohibit this list of things?
Ya think you’re going to get that past SCOTUS?
^^ little girls with pierced ears ^^
I oppose that, but since holes can close up and intact earlobes have little known role in a fulfilled life I don’t worry about it as much. And it’s banned in some places.
^^ we already accept that children are in fact not capable of providing their own informed consent ^^
Name another area where we allow a permanent cosmetic amputation that is not endorsed by any national medical association on earth.
^^ what are the things that you want to remove from the parental discretionary list, other than this? ^^
Only FGM (already banned), religious snake handling (already banned), child marriage (already banned), religiously motivated denial of medical treatment / blood transfusion (already banned), and anything else which is destructive, not needed for health, and for which the decision could just as easily wait until the victim can weigh in.
^^ religious freedom is a barrier you have to get over, what is your legal justification for proposing that you have standing to prohibit this list of things? ^^
The EXACT SAME basis that allows the US to tell Muslims they may not even do a nick to the female hood to draw a ceremonial drop of blood. It is a violation of the basic human right to keep a whole intact body, as enshrined in the UN Universal Declaration of Human Rights.
^^ Ya think you’re going to get that past SCOTUS? ^^
Yes. The 14th amendment demands equal protection. SCOTUS knows the precedents and that we can’t fail to protect a child just because of his gender, and we can’t fail to protect him just because of his family’s faith.
I think you’d have to be ignorant of what the foreskin is and does to fail to respect a male’s right to keep his whole exquisitely pleasure receptive healthy normal body.
SCOTUS, as constituted now or as it’s likely to be constituted anytime in the foreseeable future, is going to strike down any law that forbids Jews from practicing their religion.
@ Mike Schilling: “SCOTUS, as constituted now or as it’s likely to be constituted anytime in the foreseeable future, is going to strike down any law that forbids Jews from practicing their religion.”
I don’t think so. They clearly have done nothing to abolish The 1996 FGM Act which is a Muslim practice. In addition, the FGM Law violates the “Equal Protection Clause” of the 14th ammendment that requires that all laws not discriminate against any demographic in The US. The FGM Law clearly does this by including language that specifically excludes males from it’s protection. Unless the US can show compelling governmental interest in continuing this discriminatory practice, the FGM Law will fall as unconstitutional and the issue will go back to Congress to try again. And, they will try again but it will be exceedingly difficult to protect females and exclude males and not come in conflict with The Equal Protection Clause.
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