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A proposed bill to ban male circumcision

The clash of gender, religion and the protection of children

By Sherry Colb
FindLaw Columnist
Special to CNN.com

(FindLaw) -- A San Diego, California-based group that calls itself a health and human rights organization recently submitted a proposed bill to Congress called the Male Genital Mutilation Bill ("MGM bill"). The bill, if adopted, would ban the practice of circumcising baby boys.

The MGM bill has not yet found a Congressional sponsor and is therefore unlikely to go anywhere in the near future. Nonetheless, it raises important questions about the relationship between the protection of children, gender equality, and religious freedom, questions that have ramifications beyond the proposed bill itself.

Reportedly, at this time, more than half of the baby boys born in the United States undergo circumcision. For most of these infants, a doctor performs the procedure. For a minority, however, circumcision is a religious ceremony. It ordinarily occurs on the eighth day of a Jewish baby's life. For Muslim children, it may occur on the seventh or eighth day of the boy's life, some time in his first five years, or during adolescence.

The ceremony serves, for many Jewish and Muslim families, as both a celebration of their children and an assertion of religious identity.

What is male circumcision?

Circumcision, in males, involves the cutting and removal of the foreskin, a fold of skin that covers the head of the penis. Because the procedure typically occurs during the baby's first month, anesthesia (other than topical) is generally considered unsafe. This means that a vulnerable newborn infant undergoes the surgical removal of a part of his body that is dense with nervous tissue, without anesthesia.

Notwithstanding the pain suffered during, and in the immediate aftermath of, the procedure, circumcision does not -- when performed correctly -- prevent the young boy from growing up to be a sexually functioning and fertile man. (Some argue, though, that sex is more enjoyable for the uncircumcised male.).

Is circumcision like 'female genital mutilation'?

This apparent lack of permanent harmful consequences significantly distinguishes male circumcision from the practice sometimes called "female circumcision" but also known as female genital mutilation ("FGM") or female genital cutting. FGM is prohibited by a federal statute passed in 1996.

FGM typically involves the removal of a girl's entire clitoris (an excision that virtually eliminates the possibility of orgasm). In addition, clitoridectomy is often accompanied by the removal of the girl's labia and the sewing together of remaining raw surfaces, leaving only a small opening for the outflow of urine and menstrual blood, a process known as infibulation. Infibulation itself can have life-long deleterious consequences, including urinary distress, pain during intercourse, and dangerous complications during labor and the delivery of children.

Though the federal statute that prohibits female genital mutilation is limited to the protection of female anatomy, the extreme nature of FGM does not have a true analogue in male circumcision. In the light of this reality, it is somewhat misleading for advocates of the MGM bill to claim - as they have -- that federal law currently discriminates against boys subjected to genital mutilation by outlawing FGM alone. No modern culture subjects male children to anything so extreme as clitoridectomy and infibulation are for girls.

That said, the practice of male circumcision is not a trivial matter. As described above, highly sensitive and healthy tissue is removed with a knife, generally without anything but a topical anesthetic, and the patient is ordinarily a newborn infant. Though some people suggest that newborn babies do not actually suffer pain, this claim has always been suspect and is now at odds with what is known to the scientific community.

But is the pain 'unnecessary'?

The suggestion that circumcision causes unnecessary pain is, of course, a controversial one. The reason for the controversy is twofold. First, Muslims and Jews have performed circumcision on their sons for thousands of years as a religiously required practice. It serves as an affirmation, at a very basic level, of their religion and culture. To suggest that such a practice is "unnecessary" is accordingly to ignore this feature of circumcision, the fact that it is experienced by many as an essential and imperative component of their religious and cultural identity.

Second, for a long time, there were medical professionals who believed that routine circumcision of infants could be beneficial to their later health. Circumcision can prevent infections where hygiene is less than adequate. There were also some studies that suggested that women partners of circumcised men are less likely to develop cervical cancer. More recently, some have even claimed that circumcision helps to prevent HIV transmission to the circumcised male. The American Academy of Pediatrics, however, issued a statement in 1999 indicating that the data do not support routine circumcision (a retraction of its 1989 statement suggesting a range of possible benefits).

If the evidence continues to provide little or no medical basis for circumcision, that will leave only the religious and cultural reasons for the continuing choice of parents to circumcise their children.

But those bases are powerful. Many Muslims and Jews continue to circumcise their sons, even when they -- the parents -- are otherwise unobservant. Circumcision is thus, for Jews and Muslims alike, an important identifying mark.

Others continue to circumcise their children because the practice has been routine in America for some time. Studies suggest, as well, that there may be a cosmetic preference for the look of the circumcised penis.

But over time, the number of those who continue circumcise their sons without a religious justification is likely to dwindle, a development that may lead to more support for the outright banning of the practice.

When may the law intervene in religious practice?

When it comes to matters of religion, legislators are, for good reason, hesitant to ban a practice that represents a religious mandate. The U.S. Constitution itself, however, as construed by the Supreme Court in Employment Division v. Smith, does not actually require the accommodation of religious conduct, provided that any prohibition applied to that conduct is part of a neutral, generally applicable law. In the absence of evident discriminatory intent, a prohibition against the cutting of male children's genitals would therefore satisfy the demands of the Free Exercise Clause of the First Amendment.

Moreover, even when the Court had interpreted the Free Exercise Clause more broadly, as a requirement that religious practice be affirmatively accommodated, that accommodation did not extend to practices that subjected minor children to health risks on account of their parents' religious observance. In Prince v. Massachusetts, for example, the Court held that a mother could be prosecuted under child labor laws for having her children distribute literature for the Jehovah's Witnesses in the streets, notwithstanding her religious motivation for her actions.

Should the law intervene?

If circumcision turns out to be what medical professionals are saying that it is -- unanesthetized amputation from a newborn child of living, healthy tissue flush with nerve endings, for no medically beneficial result -- then it might seem quite proper to prevent parents from subjecting their infants to this cruelty.

Yet there is a worry, and it is significant. The worry is that perhaps, out of the many painful things that people do to their children, the law could be singling this one out for prohibition at least in part because the practitioners are religiously motivated, and the religions in question are minority religions in the United States.

There is a troubling precedent for this sort of targeting. In Nazi Germany, for example, the law prohibited Kosher slaughter of animals. Though the treatment of so-called food animals and their slaughter -- Kosher or otherwise -- is indeed extremely cruel, the law in Nazi Germany did not address itself to the whole category of cruelty to the sentient warm-blooded animals who are routinely and unnecessarily killed for food. Rather, it singled out the Jews' religious practice, and it did so out of anti-Semitism rather than any true humane concerns for animals.

We do not live in Nazi Germany, of course, and the proposed law against circumcision does not nominally single out Jewish or Muslim practice. Yet the worry about discrimination has two separate components, one of which applies even to ostensibly neutral laws. The first component is that the law might deliberately aim at harming a minority group. That is what the Nazis were doing in prohibiting Kosher slaughter. The second is about the willingness to pass legislation that may impose serious costs when a majority will not have to worry about bearing those costs.

The second concern animates the idea that one way to ensure that the majority does not pass excessively burdensome legislation (in which the costs outweigh the benefits) is to require that the burdens of the law fall equally upon everyone. The equality principle, in other words, protects everyone from overreaching by ensuring that the majority truly experiences the negative consequences of its decisions and will therefore -- on its own -- seek to weigh costs and benefits in an honest fashion.

Because a prohibition against circumcision would not burden every group equally, there is a substantial risk that any cost/benefit analysis performed would largely ignore the true costs to Jews and Muslims, while perhaps exaggerating the benefits of the legislation.

The best solution: Wait

Does this mean that religiously motivated practices should be immune from legal intervention, no matter how harmful and abusive? Of course not. The ban on female genital mutilation, in fact, is a good example of appropriate legislation banning a practice embraced by a minority in this country for a combination of religious and cultural reasons. The costs to girls and women who have suffered the procedure are just too great to permit it to continue.

But male circumcision is different. Though professionals have (with some hedging and ambivalence) decided to oppose the practice, it does not pose the obvious risks and harms of FGM. Until we can say with certainty that circumcision is truly harmful to children in a lasting way, we should probably leave it alone.

In the meantime, the groups with the most to lose by a ban on the practice -- Muslims and Jews -- can absorb the medical evidence and have a chance to respond on their own. If the evidence of harm mounts, it is likely that religious groups will eventually find a way to modify their practices accordingly.

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Sherry F. Colb, a FindLawexternal link columnist, is a professor at Rutgers Law School in Newark, New Jersey.


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