Is Ritual Circumcision Religious Expression?

Americans pride themselves on their commitment to freedom of religion, but how much religious freedom is too much religious freedom? At the moment, the thorniest dispute over the issue concerns a male-circumcision ritual practiced by some Hasidic Jews in New York. The ritual is called oral suction, or metzitzah b'peh. After removing the foreskin,  the mohel, who conducts the circumcision, cleans the wound by sucking blood from it. According to city health officials, the ritual may have caused three infants circumcised by the same mohel in 2003 and 2004 to contract neonatal herpes (one of the infants subsequently died). New York's city health commissioner recently issued a warning about the dangers of oral suction, leading some Orthodox Jewish leaders to complain that Mayor Michael R. Bloomberg had reneged on promises to let religious authorities handle the issue. Meanwhile, secularists like the writer Christopher Hitchens have attacked the mayor for banning smoking in restaurants while failing to protect helpless children from diseases transmitted by religious fanatics.

Among other things, the rabbis fear that restrictions on metzitzah b'peh might lead to bans on male circumcision itself. And these fears aren't entirely unfounded. In 1999, a British family court blocked a religious circumcision of a 5-year-old boy on the grounds that it wasn't in the best interest of the child. The rabbis fear that once courts feel emboldened to make their own judgments about whether circumcisions are medically beneficial or harmful, the United States could go the way of the British court.

There are, after all, individuals and advocacy groups in America who oppose male circumcision on principle and could use the courts to their advantage. In 1997, a North Dakota mother whose son had been circumcised over her objection with his father's consent argued in federal court that North Dakota's ban on female genital mutilation — which some Muslims believe is compelled by the Koran — was unconstitutional. Because the state protected girls but not boys from a harmful and medically unnecessary procedure, the mother argued, it failed to treat boys and girls equally. Either both forms of circumcision had to be banned or both had to be allowed. Although the suit was dismissed, it points toward an aggressively secularist system, as in France, where inflexible visions of equality are used to curtail traditional religious practices.

America, with its longstanding tradition of accommodating minority religious practices, has chosen an alternative model, more consistent with the demands of a multicultural democracy. The harms of female circumcision are more obvious than those posed by the oral suction procedure in male circumcision, which no state has yet regulated. (There are 2,000 to 4,000 of these circumcisions performed each year in New York City, and no more than seven recorded cases of herpes.) U.S. judges and politicians should defer to religious authorities in the cases where reasonable people can disagree about the health risks.

Ultimately, the American compromise depends on a delicate series of judgments about when, precisely, private religious expression imposes harms on unconsenting and innocent third parties. Courts have held that Jehovah's Witnesses may not deprive their children of blood transfusions. But should the city of Newark be able to prohibit all police officers — including practicing Muslims — from wearing beards in order to foster a uniform appearance on the job? In a 1999 ruling, Judge Samuel A. Alito Jr. sided with the Muslim officers. Since Newark allowed police officers not to shave for medical reasons (typically if they had a skin condition), Alito said that it was discriminatory not to make an exception for those whose religion required them to wear beards. Alito stressed, however, that states can refuse to accommodate religious minorities in the interest of promoting public health, as long as they treat religious and secular citizens equally.

This Solomonic ruling makes sense, as far as it goes, but it doesn't tell us how deferential Alito will be to religious practices in other cases. The most prominent American conservative scholar of religious liberty, Judge Michael McConnell, agrees that noncoercive religious expressions, like yarmulkes worn by Jewish soldiers, should be accommodated. But he emphasizes that public prayer in schools, which coerces nonbelievers to pray, should be banned. By contrast, Justice Antonin Scalia, who generally opposes religious accommodations, supports prayer in schools because he says that the state needn't be neutral between religion and secularism. Let's hope that Justice Alito, whatever his views on Orthodox circumcision rituals, doesn't go that far. The beards of Muslim police officers should indeed be protected, but not as a cautious first step toward the goal of creating an openly religious state.

Jeffrey Rosen writes regularly for the magazine about legalaffairs.

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