Sunday, February 5, 2006
Ritual circumcision and religious freedom
Jeff Rosen's piece, "Is Ritual Circumcision Religious Expression?", is worth checking out. He discusses "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." After noting the conflicts that so often arise in the accommodation-of-religion arena, but also the tendency in some other countries to insist on the imposition of "inflexible" public (secular) norms, he writes:
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.
I really like Rosen's work, and agree with much of what he says in this piece. That said, I'm not sure it is right to say that Justice Scalia "generally opposes religious accommodations." True, he does not believe that they are often required by the Constitution, but he has also and often made it clear that accommodations of religious are both permissible and sound.
https://mirrorofjustice.blogs.com/mirrorofjustice/2006/02/ritual_circumci.html