The Religion Exemption
Glen Newey · Circumcision
In 2009, Elmer and Chastity Weebles, a Christian couple from Hackensaugh, New Hampshire, had their infant son marked with the stigmata of Christ. During the operation the feet and hands of eight-day-old Mercey Weebles were impaled with ordinary kitchen skewers by a medically unqualified pastor known to the Weebleses. Secularists lobbied to have the couple arraigned on charges of assault. But the DA’s office declined to file charges against the Weebleses, arguing that to do so would violate the free exercise clause of the First Amendment. The NH attorneys were backed by Deputy Governor Dirk Lopov-Iacioppa, touted as a future presidential hopeful, who proclaimed: ‘I do not want Hackensaugh to be the only county in the United States in which Christians cannot practise their rites.’
Yes, I made all that up, though US God-botherers who reserve the right to propagandise their hapless offspring with ‘creation theory’ are real enough. So, of course, are the protesters, including Angela Merkel, against a recent decision by a Cologne court to outlaw circumcision after doctors at a hospital admitted a four-year-old boy who had suffered complications after being circumcised: the chancellor said she didn’t want Germany to be the only country in Europe where Jews couldn’t practise their rites. One might infer from what Merkel said that, if the practice were exclusively Islamic rather than also Jewish – the case involved a Muslim boy – banning circumcision would have been fair game.
Giles Fraser has argued that anti-circumcisers fetishise choice, and thereby ‘concede to the moral language of capitalism’. Happily, though, you don’t need to be a benzedrined Friedmanite to think that getting a choice is sometimes a good idea: the choice not to be tortured, for instance, which is sometimes forgone by devotees of S&M but prized by most of the rest of us. But it would miss the point to say that the reason torture is bad is because its victims don’t get a choice over it. For one thing, it would leave unexplained the moral gap between being tortured and, say, tickled against your will. Even here it's not that consent makes no moral difference: imagine if babies subject to circumcision could actively withhold their consent – would Fraser favour bashing on regardless?
Lack of consent seems like a defeating reason. But the absence of a defeating reason against a practice is not, by itself, a reason for it. Ad hoc modifications to babies’ anatomy that lack medical warrant need good reasons to back them. The assumption surfaces, predictably made by persons of faith, but surprisingly shared by many liberal secularists, that religious reasons are grander than others. Imagine if Goth parents decided they wanted to hammer bits of chrome through the dangly bits of their infant offspring. Practices that might count as grievous bodily harm if inflicted by secularists get legal protection if carried out by bearded hierophants.
Legal opt-outs for religion also apply to less obviously exceptionable practices. In the US, the Native American church got an exemption for its use of the hallucinogen peyote on the grounds of ‘sacramental’ use. But does that make them more eligible than lifelong bong-puffers? (‘Yeah, man... I guess you could say it’s kinda religious for me.’) The opt-out for religious reasons has been lampooned by an Austrian ‘pastafarian’, a follower of the Church of the Flying Spaghetti Monster. Since religious dress is exempt from a ban on headgear in driving licence photographs, Niko Alm posed for his with a pasta-strainer on his head. The Austrian police said that the photo was allowed because Alm's face was fully visible, not for religious reasons.
And presumably the religion exemption also fails at the other extreme, when it comes to practices like Aztec-style human sacrifice. Some religions are clearly more equal than others. If Alm, Aztecs and the hypothetical Goths aren't in the club, who is, and on what grounds?