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Liberty, But Only If Your Parents Let You Have It

I have no problem with the label libertarian, even when it's conflated with the Libertarian Party. I have a problem with being associated with what passes for thinking on the rights of children among too many self-proclaimed libertarians. Somehow the libertarian view for so many shakes down to something equivalent to children as parental property. This is most easily seen when the topic turns to male circumcision. So it is again. In response to charges filed against a rabbi/mohel in Bavaria following the recent court decision in Cologne declaring that non-therapeutic circumcision of a child violates the child's rights to physical integrity and self-determination, Doug Mataconis writes at Outside the Beltway (links in original):

There’s also been a bizarre movement growing against circumcision itself here in the United States and in Europe. Just last year, for example, a referendum that would’ve banned circumcision in the City of San Francisco was scheduled to appear on the November 2011 ballot before being removed. The motivations for this version of the anti-circumcision movement seems to be something similar to what the Judges in Cologne stated, that it was some kind of assault about a party who is unable to grant consent. ...

Surgically removing a normal, healthy, functioning body part from an individual who does not consent should be recognized as battery, yes. That is not bizarre. It's merely extending the usual rational standard for non-therapeutic surgical intervention on healthy children to male genitals.

... Andrew Sullivan, for example, contends that infant circumcision is an assault on infant boys. Left out of the argument, though, is the fact that parents have been long assumed to be able to competently make medical decisions for their minor children. ...

Except there are limits, including a specific limit on the option for parents to make "medical" (i.e. non-therapeutic) surgical decisions for the genitals of their minor children. USC § 116 - Female genital mutilation clearly establishes conditions upon which we ignore this alleged competence. If non-therapeutic genital cutting falls within the realm of making "medical" decisions for a child as a parental right, then 18 USC § 116 infringes on this supposed parental right. If this is about parental rights rather than individual rights, the child, whether male or female, would be irrelevant to the law. It isn't. It's about the harm to the child. Section (b) makes it clear that all non-therapeutic genital cutting on female minors is illegal, including any cutting analogous to or less harmful than male circumcision. Section (c) demonstrates that no parental justification will be accepted for this intervention on their daughter(s). The primary consideration becomes whether or not male circumcision is harmful, not this:

... Leaving that argument aside, I would think that any ban on circumcision in the United States would, because of the First Amendment, have to include an exemption for Jews and Muslims who consider the procedure a requirement of their religion.

Because boys don't have the same basic human rights as everyone else, at least for the physical integrity of their normal, healthy genitals? Eugene Volokh's parental and religious rights posts during last year's San Francisco ballot initiative identifies a plausible response to this. Again, the correct question is whether or not male circumcision is harmful, not why parents might choose it for non-therapeutic reasons.

On the question of harm, the evidence is quite clear. Circumcision inflicts harm every time. The individual loses his foreskin. He has nerve endings within his penis severed. He may lose his frenulum. He will have a scar. There is also the risk of complications. Some males will suffer those, and some subset will suffer horrible outcomes. The mortality rate from non-therapeutic child circumcision is very low, thankfully, but it isn't zero. Treating individuals as statistics is hardly a libertarian position.

Next, he quotes an ad hominem attack by Jonathan Tobin:

Circumcision opponents may claim they are not anti-Semitic, especially since their campaign also targets Muslims. But there is little doubt that the driving force behind this movement is resentment toward Jews and a willingness to go public with sentiments that long simmered beneath the surface in Germany and elsewhere in Europe.

Just last week, French scholar Michel Gurfinkiel wrote on his blog that anti-Semitism has increased in France since the Toulouse massacre in March. Since then violence has grown, fed by what he calls a rejection of Jews and Judaism. In France, these sentiments are fed by the Jew hatred openly expressed by the expanding Muslim population. Throughout Europe, the demonization of Israel hasn’t just increased hostility to the Jewish state; it has served as an excuse for anti-Semitism to go mainstream for the first time since World War Two. Just as some claim circumcision critics aren’t intrinsically anti-Semitic, there are those who blame anti-Semitism on Israeli policies. But when you add all these factors together what you get is an undeniable upsurge in Jew-hatred.

There is significant doubt that resentment is the driving force. I won't speak for Germany, although I think the court's ruling was not based in religious animosity. The ethical human rights-based case against non-therapeutic circumcision exists on its own. It's clear, based in the basic rights to physical bodily integrity and self-determination. The ability to find instances of anti-Semitism does not discredit that case or the general movement to restrict non-therapeutic circumcision to those who choose it for themselves. Where anti-Semitism occurs, and it unfortunately does, it discredits the individual purveyor, not the movement as a whole. And such instances should be denounced without ad hominem against anyone who shares only an opposition to non-therapeutic circumcision on non-consenting individuals.

Mataconis' response to Tobin's charge:

If that’s true, then it is a quite troublesome development. Even leaving this element out of it, though, there’s something troublesome about this entire affair. Circumcision has been an accepted practice in Western societies for centuries ...

That's interesting but proves nothing. History provides plenty of examples of rights being violated for a long time. The rights are no less violated. Non-therapeutic circumcision constitutes guaranteed physical harm to the child in pursuit of his parents' preference(s). It's the objective versus the subjective.

... and, in the case of two religions, it isn’t just an elective medical procedure, it is a requirement of their faith. ...

Being a requirement of Judaism and a recommendation in Islam are relevant, but they are not the first question in this context. The circumcision is being imposed on someone. It's an odd conception of freedom that says imposing surgery on someone else is an individual right within religious freedom. Under the proposed public policy stance, religion would have to adapt. That expectation is no different from the numerous declarations in religious texts that we do not permit in civil law. Religion deserves no special exemption. The protection required is for individuals to choose circumcision for their own bodies, not for others.

... The arguments of the circumcision opponents strike me as being little more than ridiculous nonsense that, for some, has turned into some kind of weird cult of the foreskin. As far as I’m concerned, parents are perfectly capable of making this decision for their sons and the state really has no business getting involved in at all. When you bring the element of religion into it, state interference becomes even more problematic. One would hope that the government in Berlin will intervene and put an end to the nonsense that the judges in Cologne started.

Non-therapeutic genital cutting on a non-consenting individual violates basic human rights. That isn't ridiculous nonsense. We apply it completely to females. We don't apply it to males. Instead, it's easier to smear with words like cult and fetish. Fine, if that's the standard, we should start telling activists against female genital cutting/mutilation that they're spouting ridiculous nonsense that is some kind of weird cult of the clitoris? We wouldn't because there we recognize the facts. With circumcision we forget to apply the same standard that protects the property interest of the individual. For reasons. That makes no sense.

It's certainly not within a reasonable understanding of libertarianism. For anarchists, sure, opposition to the state becomes the overriding goal. But if one assumes a state to be legitimate with a specific interest in protecting the rights of its citizens, then it's legitimate for the state to prohibit this form of possibly unwanted harm. That is the approach that recognizes humans rather than statistics. (To hope that politicians will step in to reverse a judge is a foolish action to endorse.) Parents don't just circumcise their sons. They effectively circumcise the autonomous adult he will become. Proxy consent based on anything other than clear medical need is insufficient to permit that.


Post Script: In the comments to his post, Mataconis responded with a standard trope:

Fine. Then if you have a son, don’t get him circumcised, that’s your choice.

Treating children as property is not libertarian. The correct formulation is "If you don't want to be circumcised, don't have yourself circumcised". That's the method to protect individual preferences, not the illegitimate force of individual preferences on another. Shared DNA is not a defense.

That flows into a later comment:

What is the medical benefit the foreskin provides?

To the silly question, it protects the glans and provides sexual sensitivity. But let's assume neither is true. "It's mine" is sufficient. The onus is not properly on the person who doesn't want his property taken to explain why his property shouldn't be taken. Or, at least, that's what I thought libertarians believed.

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