Marianne Heimbach-Steins

Religious Freedom and the German Circumcision Debate

Marianne Heimbach-Steins - Professor, Institute for Christian Social Sciences, University of Munster (Germany). m.heimbach-steins@uni-muenster.de

In May 2012, a German court in Cologne ruled that circumcising young boys represents grievous bodily harm. This decision, which touched upon the questions of freedom of religious practice, identity and children's rights, was condemned by Jewish and Muslim representatives in Germany, but it was also widely and controversially debated by civil society and politicians. The German Parliament recently passed legislation protecting circumcision as a religious practice, but the debate is likely to continue. In this paper, Marianne Heimbach-Steins, director of the department of Christian Social Ethics at the University of Munster (Germany), discuss this case and its implications for the definition of religious freedom.

Keywords: circumcision, Germany, Islam, Judaism, human rights, religious freedom.

1. Introduction

On May 7, 2012, the Cologne Court of Second Instance ruled in the case of male circumcision on religious grounds. The decision stated: "Male circumcision in children is a criminal act, even if it is carried out according to all religious canons and with the consent of parents, except in cases where this procedure is necessary for medical reasons."1. When the court decision became public

The article was sent to the editor by the author. The manuscript was completed in December 2012.

Fateh-Moghadam B. 1. Criminalizing Male Circumcision? Case Note: Landgericht Cologne, Judgment of 7 May 2012 - No. 151 Ns 169/11//German Law Journal. 2012. No. 09. P. 1131.

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It was not until June 26, 2012 that the event became public, but it immediately generated extremely heated and highly controversial debates in public and academic circles. Lawyers, doctors, philosophers, theologians, children's rights activists, religious representatives from Muslim and Jewish communities, as well as from Christian churches, politicians, artists and other citizens publicly expressed their own opinions, defended opposing interests and points of view, using diametrically opposite approaches to understanding this problem.

The German Parliament considered the issue on July 19-just before the start of the parliamentary summer recess - and quickly passed resolutions on the need for new legislation to ensure that "Jewish and Muslim religious traditions will continue to be possible in Germany." 2
The decision was described as an "extraordinary political action in defense of religious freedom".3. A proposal for a new draft law was prepared over the following months. After the first reading in Parliament on November 22, 2012, the legislative decision was adopted on December 12, 2012.4

The court decision in Cologne caused a huge response in various social circles. The ongoing discussion in society proves that this is not something marginal and insignificant. The decision appears to have called religious freedom into question, as it classified ritual practices that are an integral part of Jewish and Muslim religious identity as illegal. The problem that has arisen as a result of the court decision is rooted in the intersection of three different fundamental rights of the individual, simultaneously guaranteed by the German Constitution (Grundgesetz): the right to physical integrity (Article 2);

2. Deutscher Bundestag: Drucksache 17/10 331: Rechtliche Regelung der Beschneidung minderjahriger Jungen, 2012a. The German Parliament has asked the German Government "to submit a bill that guarantees that medically professionally performed circumcision of boys without causing unnecessary pain is permissible in principle, taking into account the constitutionally protected interests, rights and well-being of children, physical integrity, freedom of religion and the right of parents to upbringing" (Deutscher Bundestag Drucksache 17/10 331)..

Fateh-Moghadam B. 3. Criminalizing Male Circumcision? P. 1131.

4. "Gesetz uber den Umfang der Personensorge bei einer Beschneidung des mannlichen Kindes" (Deutscher Bundestag Drucksache 17/11 295).

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the right of parents to raise their children in accordance with their religious beliefs and beliefs (Article 4); the right of parental care and guardianship (Article 6). The solution to the problem had to be found within a socio-cultural context characterized by a variety of religious beliefs and worldviews. At the same time, increasing attention to children's rights in general, especially to the independence or self-determination of children and young people, must be taken into account.

This case is clearly a matter of law, but at the same time it raises ethical questions and issues that go beyond what can be regulated by law. As a theologian working in the field of social ethics and human rights, I have looked at this case and the public reaction to it from both a Christian and ethical perspective.5 In the course of my analysis, I'm going to address the following questions::

First: The gist of the matter. - I will quickly describe the court case and the main arguments that were used to justify the court's decision.

Second, how was the case discussed by the general public, in academia, among politicians, as well as in religious communities? - I will focus on the key points of the discussion and pay attention to the various discourses related to the case, as well as try to identify different types of arguments.

Third one: What can this discussion tell us about the right to freedom of religion and the necessary conditions for its preservation? - I will ask this question in the context of today's Germany, which is a secular state with a pluralistic society in terms of the prevalence of worldviews and religious beliefs.

This plan forces me to leave out some other aspects of this case. Let's mention just a few of them: an empirical study of the widespread practice of male circumcision 6, various non-religious (cultural, social, aesthetic, therapeutic) motives or medical necessity of male circumcision in infants, children, and young adults.-

5. I am grateful to my colleague Daniel Bogner for inspiring discussions.

6. World Health Organization (WHO)/Joint United Nations Programme on HIV/AIDS (UNAIDS): Male Circumcision. Global Trends and Determinants of Prevalence, Safety and Acceptability. Geneva, 2007.

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women and adult men; comparison of male circumcision and intentional female genital mutilation, as well as the entire gender implications of this problem as such.

2. Court case

a. A brief summary of the facts

For a brief description of the court case, I will refer to an excellent study conducted by my colleague Bijan Fateh - Moghadam, a research associate at the University of Munster:

The defendant, a doctor, performed circumcision on a four-year-old boy at his medical clinic in Cologne on November 4, 2011. Circumcision was performed at the request of the child's parents who professed Islam. It is worth noting that there were no medical indications for this procedure. The operation was performed according to all standards and under local anesthesia... Two days later, the boy was taken to the emergency department of the University Hospital Cologne due to secondary bleeding, which was successfully stopped. It is reported that due to the difficulty of communicating with the child's mother, the medical team at the university clinic had doubts about whether the consent of both parents to perform the operation was really obtained, and that is why the prosecutor's office received a notification about the case. Although an investigation by the Prosecutor's Office showed that the operation was performed in accordance with medical standards and with the consent of both parents, the doctor was charged with causing bodily harm ... 7.

The case was heard at the Court of First Instance (Amtsgericht) in Cologne, whose decision acquitted the defendant: "Trying to balance the right of parents to upbringing, care and custody of the child... and the right to physical integrity of the child... The court ruled that, first, male circumcision is a traditional ritual practice that emphasizes religious and cultural belonging to the Muslim community. Secondly, for this reason, the absence of circumcision would inevitably lead to stigmatization of the child. And third, in relation to the right of the child

Fateh-Moghadam B.7 .Criminalizing Male Circumcision? P. 1132 - 1133.

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the court emphasized the importance of circumcision as a preventive measure of a medical nature, because its positive hygienic effect has been proven by the scientific medical community. " 8
After an appeal, the case was brought to the Court of Appeal in Cologne, which made a completely different decision. While the doctor was fully acquitted 9 because the court assumed that he had acted in good faith and with the best intentions, the practice of male circumcision in children was generally recognized as a criminal offense, with the sole exception of strict medical necessity. "For the first time in history, a German court has ruled that male circumcision, if it is not medically necessary, is punishable as a criminal offense by an act [ ... ], even if the procedure itself is performed according to all the rules and with the consent of both parents [ ... ]" 10.

b. The court's reasoning

Like any other surgical intervention, male circumcision should be considered a criminal offense if it is carried out without a valid reason.11 This was the starting point for the court's reasoning. It was necessary to determine whether there were factors that could balance physical intervention and justify such treatment of the boy.

The Court ruled that personal injuries cannot be justified on religious grounds, as this is contrary to the Constitution.12 Religious freedom does not give any os-

8. Ibid. P. 1133.

9. The Court argued that the doctor performed the operation flawlessly according to all medical canons. Therefore, the surgical instrument itself did not aggravate the harm caused to the child. In addition, the doctor himself may not have known that he was committing a potentially criminal act. Comments can be found in Lutzke, see: Putzke H. Recht und Ritual - ein grofies Urteil einer kleinen Strafkammer. Besprechug zu LG Koln, Urt. V. 7.5.2012 - 151 Ns 169/11 //Medizinrecht. 2012. Nr. 30. S.622.

Fateh-Moghadam B. 10. Criminalizing Male Circumcision? P. 1133.

11. Ibid.

12.This argument is particularly emphasized by Pucke, whose position may well be considered key in terms of indirect influence on the court's decision. См. Putzke H. Recht und Ritual - ein grofies Urteil einer kleinen Strafkammer. Besprechug zu LG Koln, Urt. V. 7.5.2012 - 151 Ns 169/11//Medizinrecht. 2012. Nr. 30. S. 624.

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There are no new exceptions. If this is accepted, then the following fundamental question arises: is the consent of the parents (article 6 of the German Constitution) sufficient grounds for circumcising a boy? The Court answered this question in the negative, it did not take into account the argument that the parental decision was made based on concern for the welfare of the child13.

Instead, it was decided that the child's well-being could only be assessed based on the child's medical interests. 14 Thus, the Court of Appeal takes the most restrictive position in the legal dispute15 regarding the criminal nature of male circumcision in children (as persons who are unable to give responsible consent to this action)16. The decision demonstrates an extremely narrow interpretation of the "best interest" clause for the child. This provision was read as a norm that directly determines what is acceptable and what is not. Thus, the court "followed a doctrine that can be characterized as a positive standard of child welfare-implying a restriction on the consent of the intermediary-established by an objective 'best medical interest' test"17. This understanding clearly contrasts with the alternative understanding, which focuses on the threshold understanding of "best interests", avoids a positive definition of content and restricts itself to the very minimum norm that cannot be violated.

However, the court did not balance the two competing benefits-the inviolability of the child and the parental right to care and maintenance (and, as a third aspect, the religious freedom of parents and children) - and their impact on the child's well-being. Simply stating that the" interests " of the child should be determined by-

13. Landgericht Koln: Urteil des Landgerichts Koln zur Strafbarkeit von Beschneidungen nicht einwilligungsfahiger Jungen aus rein religiosen Grunden (151 Ns 169/11), 2012.

14. Ibid.

Putzke H. 15. Die strafrechtliche Relevanz der Beschneidung von Knaben. Zugleich ein Beitrag uber die Grenzen der Einwilligung in Fallen der Personensorge // Strafrecht zwischen System und Telos, Festschrift fur Rolf Dietrich Herzberg zum siebzigsten Geburtstag am 14. Februar 2008/Hrsg. Holm Putzke, Bernhard Hardtung, Tatjana Hornle, Reinhard Merkel, Jorg Scheinfeld, Horst Schlehofer und Jurgen Seier. Mohr Siebeck: Tubingen, 2008. S. 669 - 709.

Fateh-Moghadam B. 16. Religiose Rechtfertigung? Die Beschneidung von Knaben zwischen Strafrecht, Religionsfreiheit und elterlichem Sorgerecht//Rechtswissenschaft, Baden-Baden. 2010. Nr. 2. S. 115 - 142.

Fateh-Moghadam B. 17. Criminalizing Male Circumcision? P. 1135.

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Based solely on medical criteria, the Court concluded that circumcision of male infants for reasons other than medical necessity should be strictly prohibited. According to this view, parents cannot think otherwise, and even the likelihood of a medical advantage of circumcision, which is recognized in many other countries, does not justify a decision in favor of this procedure.18 As a consequence, any degree of parental freedom is excluded 19. If this rule is generalized, parents "mysteriously lose the right to care and custody of the child" whenever they cross the threshold of a medical institution for the purpose of providing medical care to the child.20 The marginalization of parental consent leads to the fact that religious freedom ceases to be an important argument in favor of the parental decision to circumcise a child. Such a decision of the parents is considered invalid, it cannot be justified if the court appeals to the child's right to self-determination.-

18. Supporters of the court's decision tend to ignore the ambiguity surrounding the medical aspects of male circumcision. Before simply denying the right of parents to decide what they think is best for their child, it is necessary to at least take into account the fact that at least at the level of health care, there are different points of view. In this context, it is worth paying attention to the position of M. Fox and M. Thompson (who, by the way, are critical of the expediency of male circumcision in children), they express themselves very carefully and prove that a less emotional position on such a sensitive issue can be more useful than the fierce polemic that broke out in German society: "We believe I believe that dialogue and education, rather than calls for criminal penalties and sanctions, are the best strategy to combat male circumcision and the common perception that it is a meaningless procedure. In addition to influencing parental attitudes, it is also necessary to direct educational efforts to medical organizations and professional communities that actually form public opinion on this issue. In today's situation, civil courts, when faced with the problem of allowing circumcision in children who are still too young to express their own consent, should direct parents to make a decision that would be supported by knowledge of possible harm, would follow from reasonable necessity and could be rationally justified "(Fox M., Thomson M. Reconsidering 'Best Interests'. Male Circumcision and the Rights of the Child//Circumcision and Human Rights/Eds. George C. Dennistion, Frederick M. Hodges, Marilyn Fayre Milos. Springer Science, 2009. P. 28).

Fateh-Moghadam B. 19. Criminalizing Male Circumcision? P. 1135; Walter Ch. Beschnitten// FAZ 11.07.2012.

Fateh-Moghadam B. 20. Criminalizing Male Circumcision? P. 1136. According to this logic, all types of interference with the child's bodily integrity - for example, ear piercing, ear correction, or other aesthetic operations-should be prohibited and prosecuted (my idea is not to reduce circumcision to a minor bodily intervention, but to show that such logic is not without flaws).

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This definition (including religious ones) prohibits circumcision at an early age.

In general, by rejecting the legitimacy of child circumcision on religious grounds and thus criminalizing the actions of those who practice it, the court's decision provoked a new situation regarding religious freedom and religious policy in Germany: two of the most significant religious minorities - the Jewish and Muslim communities in Germany-were criminalized, since circumcision is considered key an element of their religious identity.

3. New legislation-a brief overview

As mentioned in the introduction, the Cologne court's decision provoked deep bewilderment among the Jewish and Muslim communities in Germany and legal uncertainty among doctors and clinics who practice physical interventions. 21 A few weeks after the court's decision was published, the German Parliament urgently called on the Government to quickly prepare new legislation to clarify the situation and restore the legal framework. certainty. A clear political interest was associated with the desire to protect law-abiding followers of the Jewish and Muslim religion in Germany from criminal prosecution: their actions could become criminal if they performed male circumcision in children for reasons other than medical reasons. At the same time, the Government apparently did not want to provoke discussion of potential limits to legitimate religious practices. Meanwhile, the legal norm governing this issue, entitled "Law on the limits of protection of Male Infants from Circumcision" 22, was discussed in Parliament23. The decision was made, which is summarized below.

21. According to Alfred Bodenheimer, some doctors and children's clinics (not only in Germany, but also in Switzerland) stopped performing circumcision after the court decision was announced. In August 2012, a rabbi in Germany was first accused of performing circumcision on children (See Bodenheimer A. Haut ab! Die Juden in der Beschneidungsdebatte. Gottingen, 2012. S.13).

22. Deutscher Bundestag: Drucksache 17/11 295: Entwurf eines Gesetzes uber den Umfang der Personensorge bei einer Beschneidung des mannlichen Kindes, 2012.

23. The decision in Parliament was adopted on 12 December 2012: 434 deputies voted in favour, 100 against, and 46 abstained.

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First. Circumcision for non-medical reasons is considered as a matter of parental right to care for the child, that is, as a matter of civil law, not criminal law. 24 This judgment should be interpreted as an indicator that the legislature considers religion and religious practices to be a legitimate dimension of human existence and social life. Or - to put it in the opposite direction - that this is not a topic that should be considered suspicious or criminalized at all, as some participants in the recent public debate on religion in Germany might have wanted.

Second. Parental care and guardianship includes the right to consent to circumcision of a boy who is not yet able to agree and make a decision on his own - not necessarily for reasons of strict medical necessity,but provided that the intervention is performed by a professional doctor. 25 At the same time, the right to circumcision is limited to the welfare of the child. This rule seeks to negate the potential competition between the medical dimension of a child's well-being and the right to religious freedom of both parents and the child.

At first glance, this formula seems clear and simple. However, I hope that this condition will provoke further discussion. At the very least, this means recognizing in principle the legitimacy of circumcision of infants and young children as long as it meets the criteria for the child's well-being. But since there is a fundamental disagreement about what is required for a child's well-being and how it can be defined financially, we are likely to see a new starting point in the legal debate. As soon as someone challenges the legitimacy of the practice in a particular case, it will be necessary to prove its necessity from the point of view of the child's well-being.

24.A new paragraph (Section 1631d) has been added to the law in the section on the rules concerning parental rights to care and care previously stipulated in the German Civil Code §§ 1626ss (Deutscher Bundestag: Drucksache 17/11 295).

25. " Personal guardianship also includes the right to consent to the circumcision of a male child who is not medically necessary and is unable to make a decision on his own if it is performed in accordance with all the rules of medical art. This does not apply if such circumcision - also taking into account its purpose-threatens the well-being of the child" (Deutscher Bundestag: Drucksache 17/11 295: 6).

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The third. In the first six months after birth, circumcision can be performed under the specified conditions by persons who have been granted such a right by the religious community, even if they are not doctors, but simply have sufficient experience in performing such operations.26 This additional rule applies to the Jewish practice of circumcising male infants on the eighth day after birth, which is mainly practiced by a religious expert (moel) who has received special training, but is not necessarily a doctor.27 This rule is necessary to make sure that surgical intervention will be practiced correctly in each specific case. This rule does not imply the need for external (governmental) verification of the qualifications of authorized religious experts who are not doctors, as was the case in Germany in the 19th century. 28
No specific rule was formulated regarding religious practice as such. At first glance, this is related to the context (the right of parental care and guardianship). This rule seems appropriate due to the suspicion that the new law will create privileges for religious minorities. This suspicion was openly expressed during the discussion, in particular, by the legal philosopher Reinhard Merkel. Referring to the historical duty associated with the Holocaust, he argued that, for historical reasons, the German State primarily targets Jewish communities in Germany, and therefore needs to make exceptions that would otherwise be considered illegal.29 If the legality of child circumcision was based on a simple privilege, it would not only be a crime.-

26. "In the first six months after the birth of a child, the circumcision provided for in paragraph 1 may also be performed by persons designated by the religious society, if they are specially trained for this purpose and, without being doctors, are able to perform circumcision in the same way" (Deutscher Bundestag: Drucksache 17/11 295. S. 5).

Deusel A. 27. K Medizinische Aspekte der Brit Mila//Beschneidung: Das Zeichen des Bundes in der Kritik. Zur Debatte um das Kolner Urteil/Johannes Heil, Stephan J. Kramer. Berlin, 2012. S. 181 - 190.

Jiltte R. 28. Die Medikalisierung eines religiosen Rituals - der: von der wachsenden Deutungsmacht der Arzte im Beschneidungsdiskurs // Beschneidung. S. 179 - 180; Bramer A. Die judische Beschneidungsfrage in Deutschland um 1850//Beschneidung. S. 39.

Merkel R. 29. Die Haut eines Anderen//Suddeutsche Zeitung. 30.08.2012.

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It went beyond basic (constitutional) rights, including the right to freedom of religion. Strictly speaking, this would be a delegitimization of practice, if we look at the situation from the point of view of human rights or the basic concept of rights. The UN Special Rapporteur on Freedom of religion or belief, German philosopher Heiner Bielefeldt, states:: "The request for further protection of the legal practice of male circumcision in children in Germany does not imply any privileges at all. On the contrary, this request may, not without reason, be based on the right to freedom of religion. Its specific content becomes apparent only in specific social contexts and in relation to specific religious belief systems and worldviews. This context should be carefully defined when dealing with believers whose religious beliefs or practices are under pressure. " 30
4. Overview of public debate-arguments and trends

The court's decision in Cologne has sparked a wide-ranging and highly emotional debate. Not surprisingly, it was soon characterized by serious observers (for example, Bielefeldt) like the new Kulturkampf (culture war). A storm swept through German society that did not carry the shadow of a balanced argument. Powerful weapons were used: it was said that children should be protected from sectarian violence, 31 and that the values of Education should be revived against the destructive, archaic and unconstitutional forces lurking in religious traditions.32 Bright colors,

Bielefeldt H. 30. Menschenrecht, kein Sonderrecht. Einige Klarstellungen zur aktuellen Beschneidungsdebatte // Beschneidung: Das Zeichen des Bundes in der Kritik. Zur Debatte um das Kolner Urteil/Hrsg. Johannes Heil, StephanJ. Kramer. Berlin, 2012. S. 77.

31. Here is one example: On July 21, 2012, an open letter with 700 signatures (with the participation of many doctors) was published, addressed to the German Chancellor and the German government. The letter states: "Religious freedom should not give you carte blanche to carry out (sexual) violence against boys who are not yet able to express their consent on their own "(See Open Letter from Matthias Franz, http://www.faz.net/aktuell/politik/inland/offener-brief-zur-beschneidung-religionsfreiheit-kan n-kein-freibrief-fuer-gewalt-sein-11827590.html).

32. There were those who argued that the initiation rites of all "Abrahamic traditions" fall under this verdict, as they impose their own rituals-circumcision and kre-

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controversial and very emotional discussions on this topic still do not subside, but now they have moved mainly to the Internet. Some participants take an aggressive stance against any religious claims and seem to reject any willingness to differentiate. Others show similar limitations only with the opposite sign. They are not prepared to accept that religious claims must be balanced with other constitutional rights and, therefore, justifying practices such as male child circumcision is not taboo for public discussion. Fundamentalist points of view were present on both sides-fundamentalism is not limited only to the religious worldview, it is also present in the anti-religious worldview 33.

Religious communities of Jews and Muslims, who were found to be a collective defendant after the Cologne trial, expressed concern about a new wave of anti-Judaism, anti-Semitism and Islamophobia. They expressed public doubts about whether Germany needs them and whether they can continue to live in the country in accordance with their religious identity.

Such a conflicted atmosphere has made the discussion of this issue very difficult. The new law probably won't stop public discussion. There are residual tensions concerning the legal norm itself, in particular, the normative categories to which it refers. While the rule of law seeks to defuse tensions around the issue of religious freedom, the ongoing controversy raises doubts that this effort will ultimately be successful.

In this regard, it is necessary to continue a balanced discussion. It needs a solid argumentative foundation, while refraining from polemics and anti-religious attacks.34 I'll try at least schematically

This is the position of Joachim Kahl, speaker of the secularist socialist movement within the Social Democratic Party (See Kahl J. Neun Thesen zur Beschneidungsdebatte aus laizistisch-humanistischer Sicht, 2012).

Heimbach-Steins M. 33. Religionsfreiheit. Ein Menschenrecht unter Druck. Paderborn, 2012. S. 34 - 41.

34. In addition to the nervous and emotional reactions, there were also well-balanced opinions expressed by scientists, philosophers, ethicists, medical specialists, and religious experts, including those from the Jewish community in Germany (see the previous section).

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present some of the main directions and history of the dispute in order to clarify the regulatory impact of this issue.

4.1. Reflections on intersecting fundamental rights

A brief summary of the court's decision and arguments not only reveals the starting point of the discussion, but also reflects important legal and ethical aspects related to the discussion. At the legal level, it is a reflection on intersecting fundamental rights, which we have already outlined above. Three fundamental rights guaranteed in the German Constitution:

(1) The right of the child to physical integrity and self-determination is clearly defined as a guideline that cannot be undermined by any other legal claim. It is quite obvious that male circumcision is a physical intervention that must be sufficiently reasoned and carried out based on the well-being of the child. Approval of such an intervention will depend on the way it is performed and on the conditions provided for in hygiene 35. For serious reasons, this issue is the subject of constant discussion. It cannot be relegated to the background on the basis of arguments based on overlapping rights; it can only be resolved from the standpoint of protecting the inalienable rights of the child. But at the same time, it is necessary to recognize that the "rough fact" of bodily intervention is an abstract construction. This practice should always be evaluated in the context that makes it relevant - whether it is a medical or religious context, or any other determining factor. It is in this context that the legitimacy of a practice must be confirmed or rejected.36
Beschneidung: Das Zeichen des Bundes in der Kritik. Zur Debatte um das Kolner Urteil/Hrsg. Johannes Heil, Stephan J. Kramer. Berlin, 2012).

35. World Health Organization (WHO)/Joint United Nations Programme on HIV/AIDS (UNAIDS): Male Circumcision. Global Trends and Determinants of Prevalence, Safety and Acceptability. Geneva, 2007.

36. According to Bodenheimer, attempts to make circumcision illegal based on medical arguments resemble the practice of paternalistic imposition of programs of human improvement, which goes far beyond what the state should do in general (See Bodenheimer A. Haut ab! Die Juden in der Beschneidungsdebatte. Gottingen, 2012. S. 30). German legal scholar Christian Walter sharply criticizes any attempt to compare male circumcision in children

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(2) As far as the issue under analysis is concerned, the religious context cannot be ignored as a meaningful basis. It is protected by the constitutional right to freedom of religion. The right to freedom of religion, including the right of parents to raise their children in accordance with their own beliefs and beliefs, 37 is at the heart of criticism that calls the court's decision unbalanced. The point of this criticism is that the concepts of well-being and a good life do not take into account the value of religious faith and belonging to any religious group. 38 Other participants in the discussion completely deny that there is any positive link between the parental right to protection and care and the right to religious freedom of parents.39 Some commentators interpret a child's religious freedom as an exclusively negative right that is designed to protect children from the decision of their parents regarding their religious affiliation.40 However, this does not meet international human rights standards.

(3) The right to parental care and upbringing is also at stake, as the conflict concerns male infants and children who are still too young to decide what to do with their bodies. Undoubtedly, it is necessary to take into account the inalienable rights of the child. It is very important to insist on the observance of the child's personal rights. This aspect has only recently surfaced in discussions. Discussions have often argued that the personal rights of a child - not as a future adult, but as a very young person-should be considered with extreme care. This means that the child must be recognized as a person, even if not yet ready to claim his rights or defend them legally; the child must be recognized as a subject in the full moral sense of the word. Nevertheless, there is no sufficient reason to postulate a rigid (abstract) contradiction between parental rights and the future right of the child.

with corporal punishment, which was often used in the interpretation of circumcision as violence (Walter Ch. Beschnitten/ / FAZ 11.07.2012).

Walter Ch. 37. Beschnitten//FAZ 11.07.2012.

Bielefeldt H. 38. Menschenrecht, kein Sonderrecht. Einige Klarstellungen zur aktuellen Beschneidungsdebatte//Beschneidung. S. 71 - 82; Walter Ch. Beschnitten//FAZ 11.07.2012.

Rohl B. 39. Das Wohl des Kindes geht vor//Spiegel online. 20 Juli 2012.

Kahl J. 40. Neun Thesen zur Beschneidungsdebatte aus laizistisch-humanistischer Sicht, 2012; Rohl B. Das Wohl des Kindes geht vor.

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Those who suggest this are trying to limit the right to religious education as much as possible or to cancel it completely. On the contrary, legal norms - in particular, the UN Convention on the Rights of the Child-assume that parents can not only but also have an obligation to guide their children on their path to autonomy and self-determination (article 5).41
Thus, the intersection of three different basic rights concerns bodily integrity, self-determination, and religious identity. For many anti-religious panelists, the outcome of this confrontation seems obvious - for them, the right to religious freedom takes a lower priority than the child's well-being and "best interests". They deny any positive connection between the overlapping legal claims. This position was present in the arguments of the court when it failed to reach a balanced decision on the overlapping rights of children; in addition, it was repeatedly expressed by lawyers, pediatricians, children's rights activists, and journalists. Not surprisingly, this conclusion - or rather this prejudice (?) - has often been criticized not only by the religious communities involved in the conflict, but also by Christian churches, 43 philosophers, lawyers, and other participants in the debate. They argued for the ethical need to take a closer look at the relationships and tensions between overlapping goods and values.

4.2. Ethical aspects of the debate

The legal discussion concerning overlapping constitutional rights has revealed several problems that may not be solved by legal means alone. Some of the questions posed challenge our inner beliefs, which guide our judgment in matters of politics, law, and public debate.

Bielefeldt H. 41. Der Kampf um die Beschneidung. Das Kolner Urteil und die Religionsfreiheit// Blatter fur deutsche und internationale Politik. 2012. Nr. 9. S. 63 - 71.

Fateh-Moghadam B. 42. Criminalizing Male Circumcision? P. 1135 - 1136.

43. Representatives of both the Catholic and Protestant churches in Germany responded to the court's decision in Cologne: they spoke about the decision, the discussion, and the new legislation (see: http://www.ekd.de/international/islam/index.html and http://www.dbk.de/nc/presse/aktuelle-meldungen/).

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4.2.1. The child as a person and as a moral subject

Only a few people in Germany were able to approach the issue of child welfare in a more differentiated way, 44 thus taking a different position from that which simply appealed to the right of the child, rather than paying attention to the overlapping right concerning religious freedom. 45 In short, the child must be perceived as a subject in the moral sense of the word. He (or she) should not be perceived as an object of anyone's property. At the same time, it should be taken into account that the child needs care and that the people responsible - usually parents - need freedom to make decisions about what will be for the good or harm of their child. One fundamental criterion - but not the only one-is the previously mentioned call to respect the child's physical integrity. Interference with bodily integrity must be seriously justified. The justification for such actions must be combined with the child's well-being and serve him, which is simply necessary for the child to be recognized as a moral subject.

Advocates for the child's well-being and best interests often argue that parents have no right to claim that they are acting in the best interests of the child when they decide to circumcise the child for religious purposes (it will be interesting to see if they use the same argument in the case of, say, medical procedures for aesthetic purposes). It is suggested that the parents ' decision goes beyond their legal duty to raise children. Even without any anti-religious sentiments, many religiously motivated decisions of parents are rejected by society as illegal. Thus, the focus shifts to the child's right to self-determination. The argument is as follows: when a boy grows up, he will decide for himself whether he wants to be circumcised or not (whether he wants to be a believer or not). Circumcision at an early age encroaches on the freedom of independent re-education.-

Wiesemann CI. 44. Hort auf die Kinder! //Aufienansicht Montag. 1. Oktober 2012. Nr. 227. S. 2.

45. Based on the conclusions of M. Fox and M. Thomson, the discussion in the Anglo-Saxon context was conducted with a much broader perspective, see: Fox M., Thomson M. Reconsidering 'Best Interests'. Male Circumcision and the Rights of the Child//Circumcision and Human Rights/Eds. George C. Dennistion, Frederick M. Hodges, Marilyn Fayre Milos. Springer Science, 2009.

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sheniya. But when we make such arguments, we perceive the child not as a child, but as an adult, which he will then become.46
As for the material aspect of religious affiliation, the argument does not seem particularly strong here. Physical intervention in itself does not determine Jewish identity - the main criterion is rather birth from a Jewish mother.47 Among the 90 percent of the world's circumcised male population, there are many who do not associate this physical intervention with any religious identity. And performing circumcision for religious reasons will not prevent a person from changing their religious beliefs and beliefs as an adult. 48 Although circumcision itself cannot be reversed, the fact of circumcision has no religious meaning. Religious attribution can be accepted or rejected.

As for emphasizing the independence of the individual, the argument seems to suggest a rather one-sided image of the adult as an autonomous person. This argument is based on the ideal of internal independence, without taking into account the extent to which social, cultural or religious affiliation can influence the formation of personal identity. In my opinion, this is too narrow a concept of autonomy. It ignores the fundamental role of human relationships and social engagement , which is what everyone's life is based on, including the relationships we establish in later life.

In this context, the discussion can be supplemented by pointing out an interesting aspect concerning human rights and child welfare. I am referring to the discussion on inclusion and the right to inclusive education mentioned in the UN Convention on the Rights of Persons with Disabilities.49 Most interesting for the purposes of our research is the fact that "belonging" is being introduced as a normative criterion for inclusive treatment of people with disabilities.50 With regard to the interpretation of the application-

Wiesemann Cl. 46. Hort auf die Kinder!

Deusel A. Y. 47. Medizinische Aspekte der Brit Mila. S. 181.

Fateh-Moghadam B. 48. Criminalizing Male Circumcision? P. 1140.

49. CRPD: Convention on the Rights of Persons with Disabilities, 2006.

Bielefeldt H. 50. Zum Innovationspotential der UN-Behindertenkonvention. Deutsches Institut fur Menschenrechte (Hg.). Berlin (EssayNr. 5), 2006; Heimbach-

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This innovative aspect of inclusion stands in sharp contrast to the hostility expressed by some of the participants in the discussion, who oppose any attempt to initiate children into religious communities to which their parents voluntarily belong.

4.2.2. Recognition of religious beliefs and affiliations?

The approach to the conceptualization of human autonomy criticized above reduces religion to a purely private matter. If an adult individual chooses or rejects religion as something meaningful or irrelevant in his or her life, then this is interpreted as a conscious choice. If we agree with this approach, then a parent's decision concerning the child's religious affiliation looks like an illegal preliminary decision-whether it is accompanied by physical interference or not.

As far as I can tell, this position has recently become increasingly widespread in Germany. Its popularity coincides with an increasingly influential trend in public debate aimed at downplaying the appropriate value of religion, religious belief and affiliation. Many participants in the dispute have a disrespectful attitude towards religion and religious expression. Many critics no longer believe that religion can play a positive role in people's lives, both at the private level and at the level of social cohesion and adherence to the rules and rituals of the religious community. And although this is not yet a generally accepted opinion, there is an increasing trend in this direction. In my opinion, this is an alarming signal: this situation not only complicates public life in a pluralistic society and makes it more controversial, but also contributes to the situation of non-recognition of the social and cultural potential of religious traditions. Current public, political, and scientific discussions not only reveal, but also exacerbate the above trend.

Steins M. Religionsfreiheit. Ein Menschenrecht unter Druck. Paderborn, 2012.

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4.2.3. Religious freedom and child welfare

Since the debate is focused on this aspect, we need to take a closer look at how the right to religious freedom relates or may relate to the well-being and "best interests" of the child. In my opinion, the point of view that denies any positive connection between these two benefits is far from reality. Imagine, for example, that a certain language is considered unsuitable for teaching children, because the native language greatly affects the way they think and communicate with others. Therefore, in order to leave the child, when he grows up, the freedom to choose the language of communication and reflection, a decision is made not to teach the child the language of their parents. Obviously, this is not the best idea, and sensible people will say that this approach is contrary to the well-being of the child.

Of course, this is not the most accurate analogy with religious faith, but still. This analogy is related to the cultural significance of both language and religion. The ability to have a religious affiliation and experience religious manifestations at an early age should be considered an important element in the integral concept of the child's well-being and best interests. Admitting this approach, of course, does not necessarily justify the practice of circumcision in young boys. But it does hint at a positive attitude towards religion as a potential factor in the context of belonging to a community of communication, social and cultural life, and therefore an element that should be integrated into the concept of child well-being. Even critics of religion may well admit that there are legitimate alternatives in addition to strong opposition that can build a relationship between the best interests of the child, on the one hand, and the demands for religious freedom of children and parents, on the other.

Of course, this argument cannot neutralize criticisms of child circumcision. However, it can change the attitude of parents who ask or agree to circumcise their young boys. Apparently, they decide and act based on the well-being of their children. Many devout people feel aggrieved, both as parents and as believers, if their good intentions are rejected and ignored; if, in the exercise of their basic right to parental care, they expose their children to abuse and abuse.-

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criminal conviction 51. The key idea is to understand the positive impact of religious affiliation on the child's well-being. Once such influence is recognized as a potential or normative influence, it will become easier to discuss the best ways to extend the existence of religious traditions of fundamental importance, such as circumcision, so that bodily intervention is recognized as beneficial to the child's well-being (and it will also become easier to discuss an adequate understanding of the well-being category).

5. The impact of the German debate on religion and the right to freedom of religion in a pluralistic society

5.1. Religious identity

The controversy was sparked by a court decision that completely failed to appreciate the significance and value that Muslims and Jews attach to the ritual practice of circumcision. Ignoring this aspect, the court did not seek a balance between the values of the religious identity of both communities and the medical aspects of the child's well-being.

Therefore, it is not surprising that many representatives of the Muslim and Jewish diaspora have tried to publicly explain the religious significance of male circumcision within their religious tradition.52 For example, in the Jewish tradition, circumcision is a centuries-old basic ritual practice that is closely associated with-

Engin H. 51. Die deutsche Beschneidungsdebatte: Anmerkungen aus muslimischer Perspektive // Beschneidung: Das Zeichen des Bundes in der Kritik. Zur Debatte um das Kolner Urteil/Hrsg. Johannes Heil, Stephan J. Kramer. Berlin, 2012. S. 256 - 260; Walter Ch. Beschnitten//FAZ 11.07.2012.

52. Bodenheimer criticizes the relatively weak response of the German Jewish community in terms of its argumentativeness and intellectual depth. In his opinion, it is not enough for Jews to simply refer to biblical norms without explaining the religious rules of Jewish life that stem from the experience that led to the formation of the identity of the Jewish people (See Bodenheimer A. Haut ab! Die Juden in der Beschneidungsdebatte. S. 25 - 36). The need to more clearly justify the Jewish commitment to the practice of male circumcision from various scientific and practical points of view is justified in the following work, see: Beschneidung: Das Zeichen des Bundes in der Kritik. Zur Debatte um das Kolner Urteil/Hrsg. Johannes Heil, Stephan J. Kramer. Berlin, 2012. This volume contains the proceedings of a conference held at the Heidelberg Graduate School of Legal Studies in September 2012.

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associated with a Jewish identity. There has already been controversy in the Jewish community about the need for circumcision in boys. Several scholars have drawn attention to the nineteenth-century controversy that erupted in the German Jewish diaspora: the question then arose of whether the ritual of circumcision should be continued in the present day. 53 And there are still voices in the Jewish community, mainly in Israel and the United States, questioning the practice of infant circumcision.54 However, most Jews around the world (not only ultra - Orthodox and Orthodox, but also reformers and liberals) follow the practice of circumcising male infants on the eighth day after birth to initiate and indicate religious affiliation-the abolition of this tradition is impossible under any circumstances. I cannot go into further details about the Jewish and Muslim traditions of circumcision. I can only offer a few explanations concerning the significance of circumcision in the Jewish tradition.55
According to the biblical account, circumcision is essentially related to the founding act of Judaism: the covenant between God and Israel (as described in Genesis 17). However, the significance of circumcision for Jewish identity cannot be limited to the Biblical text alone. Circumcision is closely linked to the historical experience of the Jewish people since ancient times. This historical experience is associated with the widespread need to protect their own characteristics and differences from the claims of the ruling power, without being able to be a nation with its own territory and social order. It is in this context of the sawn-off shotgun-

Bodenheimer A. 53. Haut ab! Die Juden in der Beschneidungsdebatte. Gottingen, 2012. S. 36 - 43; Bramer A. Die judische Beschneidungsfrage in Deutschland urn 1850// Beschneidung: Das Zeichen des Bundes in der Kritik. Zur Debatte um das Kolner Urteil/Eds. Johannes Heil, Stephan J. Kramer. Berlin, 2012. S. 36 - 40; Jiltte R. Die Medikalisierung eines religiosen Rituals - der: von der wachsenden Deutungsmacht der Arzte im Beschneidungsdiskurs // Beschneidung: Das Zeichen des Bundes in der Kritik. Zur Debatte um das Kolner Urteil/Eds. Johannes Heil, Stephen J. Kramer. Berlin, 2012. S. 173 - 180.

54. Circumcision and Human Rights/Eds. George C. Denniston, Frederick M. Hodges, Marilyn Fayre Milos. Springer Science, 2009.

55. Due to the historical peculiarities of Jewish and Muslim life in Germany, there is a tradition of discussing the pros and cons of circumcision exclusively within the framework of the German-Jewish dialogue, and until very recently the voices of the Muslim community on this issue were practically not heard. Referring to Jewish sources, of course, does not in any way mean that the Islamic experience can be replaced or equated with the Jewish experience

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It has become a particularly significant marker of distinction, which is reflected in rabbinic literature.56 Even in the current debate about the need for circumcision within the Jewish community, there are references to historical experience.57 Information that can be drawn from historical sources, such as debates in the 19th-century German Jewish community, shows that it is not the act of circumcision itself (the rite), but the fact that a person lives with circumcision (the institution), that makes Jews different from others.58 By circumcising their male infants, Jewish parents include them in a covenant with God and thus continue the history of that covenant. Thus, the practice of circumcision means much more than just an initiation rite concerning a particular child and their religious background. The body mark certifies and reveals God's covenant with His people, which continues through the ages.59
Even an outsider should understand that this understanding of circumcision is by no means marginal. This is not only one of the ritual norms, but also an element of religious belonging, which is recognized as fundamental.-

Bodenheimer A. 56. Haut ab! Die Juden in der Beschneidungsdebatte. S. 25 - 48.

Bramer A. 57. Die judische Beschneidungsfrage in Deutschland um 1850. Further discussion should not ignore the fact that there are often critical voices within the Jewish community, not least related to feminism. To give just two examples: American Miriam Pollack opposes infant circumcision, considering it a practice that not only violates the child's physical integrity, but also adversely affects the innate instinct of a mother to care for her baby. She interprets this rite performed by the father as a paternalistic juxtaposition of the female lineage in the Jewish community and, therefore, as something related to gender and power. "Circumcision allowed the transfer of inheritance rights through the male line and conferred a privileged status on men. [ ... ].. a Jew is one whose mother [sic] is Jewish. To this day, the maternal line is more important than the tradition of circumcision." While Pollack focuses on what is the basis of Jewish identity, German-Jewish biblical scholar Hannah Lise appeals to the level of normative religious practice: according to Scripture, the main marker of Jewish religious identity is the observance of Shabbat, and circumcision is only a necessary prerequisite for ritual practice. Thus, it is up to the intra-Jewish discussion to evaluate internal and external arguments, to balance the overlapping benefits and aspects of this delicate matter in a way that preserves the foundations of identity, while respecting individual human rights.

Bodenheimer A. 58. Haut ab! Die Juden in der Beschneidungsdebatte. S. 37; Bramer A. Die judische Beschneidungsfrage in Deutschland um 1850. Both with reference to: Zunz L. Gutachten uber die Beschneidung, Frankfurt / Main, 1844.

Lentes Th. 59. Zwischen Kulturmarke und Sakularisierung // Frankfurter Rundschau. 03.07.2012.

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There are a huge number of interpreters of the Jewish tradition. Circumcision can be described as a bodily expression of the tradition of Jewish identity.60 Circumcision is thus one of the most important religious practices in the Jewish tradition. 61
5.2. Freedom of religion and citizenship

In Germany, the majority of participants in the discussion about circumcision largely ignored the religious meaning of the practice, which was criminalized as a result of a court decision. This conflict goes far beyond the question of the legal status of a single religious practice. The issue of the status of religion in our society is at stake here: the main issue raised by waves of public discussions (this is not the first time this has happened, legal and public debates in previous years have signaled similar trends): is religion - in all its many confessions, beliefs, and practices-a recognized part of public life? To answer this question positively (not empirically, but normatively), of course, does not mean that from now on religion and religious issues should be taken out of the scope of discussions and disputes. But what is needed is a culture of respect and recognition for believers, if not for the religious beliefs and beliefs themselves. This is nothing more than a consequence of the recognition of the right to freedom of religion as both a positive and negative right. Thus, the main thing is the recognition of the right to freedom of religion as a legal entity.

60. Ibid.

61. If the meaning of the religious context is taken into account, then such bodily intervention can be interpreted not as self-mutilation, but as an act of bodily perfection (See Lentes Th. Zwischen Kulturmarke und Sakularisierung// Frankfurter Rundschau. 03.07.2012). It would be interesting to move further in this direction and, in particular, to start a discussion about body symbols, comparing criticism of religious circumcision with criticism of other practices of body intervention and improvement: for example, vaccination (Reihenimpfungen) of infants and young children, which also implies serious interference with the integrity of the body. I do not have the opportunity to discuss this issue in this article. However, I note that it is rather strange to pay attention to the medical benefits of childhood vaccination, ignoring discussions about the problems associated with it, and at the same time only take into account critical arguments about the practice of circumcision; for example, this is what Holm Putzke does in his commentary on the court decision in Cologne (See Putzke H. Recht und Ritual - ein grofies Urteil einer kleinen Strafkammer. S. 622 - 624).

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basic personal rights in all seriousness and with all the consequences that follow from it.

Those who categorically attribute to themselves and their position loyalty to the values of the Enlightenment - and these are precisely the most severe critics of religious practices (not only in the case discussed here) - are often characterized by a very narrow understanding of what they are appealing to. Some commentators have criticized this position as "vulgar rationalism"62 or - as was the case in previous debates about Islam in Europe - "enlightenment fundamentalism"63. According to "enlightenment fundamentalism", religious practices had to be evaluated and justified on the basis of their social utility 64. This shows a profound lack of understanding of the essence of religious freedom, as well as a strikingly narrow understanding of Enlightenment ideas: the right protects the free expression of religious faith and practice (or the right to abstain from it) as long as this expression is compatible with the legal order as a whole.65 No one can be forced to reduce their faith to something that everyone can rationally agree with.

It is also necessary to mention the second aspect of the debate: the debate has clearly shown that a part of our society rejects the social ethos that is necessary to stabilize the basic rights guaranteed by the German Constitution. What we need is a spirit of mutual respect and tolerance; such an ethos can provide a solid foundation for discussing and resolving the inevitable conflicts that arise. This is a challenge facing both believers and" secular " citizens. The first group should be prepared to explain convincingly what practices they consider part of their religious identity and why they are converted.-

Kermani N. 62. Triumph des Vulgarrationalismus//Suddeutsche Zeitung. 30.06.2012; Bielefeldt H. Menschenrecht, kein Sonderrecht. Einige Klarstellungen zur aktuellen Beschneidungsdebatte.

63. Islam in Europa. Eine internationale Debatte/Hrsg. Thierry Chervel, Anja Seeliger. Frankfurt/Main, 2007.

Putzke H. 64. Die strafrechtliche Relevanz der Beschneidung von Knaben. Zugleich ein Beitrag uber die Grenzen der Einwilligung in Fallen der Personensorge.

Bielefeldt H. 65. Menschenrecht, kein Sonderrecht. Einige Klarstellungen zur aktuellen Beschneidungsdebatte. S. 80.

66. This paragraph is based on more fundamental reflections that can be found in my latest book on the right to religious freedom, see: Heimbach-Steins M. Religionsfreiheit. Ein Menschenrecht unter Druck. S. 139 - 178.

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they seek protection by appealing to the right to religious freedom 67. They should be aware that the State is responsible for the totality of constitutional rights, so it can formulate the conditions under which religious practice will be allowed or restricted. In short, they must relate their religious identity to their status as citizens of a secular State and members of a pluralistic society. This is not a problem as long as the legitimacy of religious identity is not questioned by non-religious or anti-religious fellow citizens or institutions.

"Secular" citizens should also make an effort. They should respect and at least be patient with their religious fellow citizens. They may feel uneasy about legitimate displays of religious beliefs in the public space. Criticism of religion is allowed as part of the right to freedom of speech, and it does not pose a threat to the right to freedom of religion. Such criticism does not threaten peaceful coexistence as long as it does not become offensive or demeaning to the believers whose beliefs and practices are being criticized. 68 The debate analyzed above shows that criticism of religion has not always been kept within acceptable standards. This problem cannot be solved by legislative measures alone. This is a matter of culture and education-a challenge for society as a whole. This is a matter of a political approach to resolving such conflicts. The outcome of the case under consideration shows that it is illegitimate to require the State to force religious communities to "enlighten" themselves through criminal legislation.

There is a third point that also needs attention (I will only mention it very briefly here). Various factors can either help or hinder the development of respect and attention in the public and political sphere. In the discussion under consideration, political attention was obviously predetermined by the historical train of German-Jewish relations. This plume was the reason for the rush to prepare a new law.-

Bielefeldt H. 67. Menschenrecht, kein Sonderrecht. Einige Klarstellungen zur aktuellen Beschneidungsdebatte.

Baumgartner Ch. 68. Religiously Offensive Speech and Freedom of Expression in Liberal Democratic Societies // Political Practices and International Order. Proceedings of the Annual Conference of the Societas Ethica (Oxford 20o6)/Eds. Stefan Heuser, Hans G. Ulrich. Berlin, 2007. P. 116 - 131.

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and the Government's desire not to provoke large-scale discussions about the boundaries and status of legitimate religious practices. If the Jewish community had not been so deeply affected by the consequences of this (Muslim) story, the official reaction and political attention might have been much weaker. The case would be discussed in the context of the problems of migrant religion and would not have a high priority comparable to what it has in the situation of Germany today. 69
Conclusion

In conclusion, I will briefly list the main aspects of the religious freedom case.

Circumcision as a "gross fact" is a bodily intervention that must be seriously justified. Otherwise, it should be considered criminal self-harm.

Since in reality a practice is never just a "rough fact" without a context to give it meaning, accordingly, the various factors that give meaning to a practice - positive or negative-must be taken into account in all their conflict interdependence.

The legal dispute revolves around three overlapping constitutional rights - the right to physical integrity (of the child), the right to freedom of religion (of both parents and the child), and the right to parental care and guardianship.

The Cologne court's decision failed to strike a balance between overlapping fundamental rights. This decision ignored the fundamental importance of practice for the religious identity of Muslims (and Jews); it did not even attempt to save the religious good that was under threat.

One of the main ethical aspects of a legal conflict is how to conceptualize a child's well-being. What does this well-being imply and what exactly is required for it? Is it a category that can

69. Bodenheimer characterizes the situation of Jews in Germany as a gradual "alienation", see Bodenheimer A. Haut ab! Die Juden in der Beschneidungsdebatte. S. 12.

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should it be used as a boundary set by state authorities, within which parents are free to choose the best for their offspring in accordance with their personal beliefs - including religious beliefs? This is the understanding offered by international human rights instruments. Alternatively, well-being should be thought of as a category that receives positive content from the legitimate authorities, who focus exclusively on the best interests of the child that are medically understood (this is the interpretation proposed by the court in Cologne). It follows from this alternative that parents do not have any freedom to exercise their right and duty of care and guardianship. Such a consequence affects the right to religious freedom in the most significant way.

The public discussion was very emotional, and sometimes it was conducted with the use of anti-religious arguments. This indicates a decrease in understanding, as well as respect and tolerance for religion and religious practices in German society. In my opinion, this demonstrates the problem of the ethos of a pluralistic community, which should be based on the fundamental principles of mutual respect, recognition and tolerance. Without the cultivation of these principles, the constitutional right to freedom of religion loses the necessary space of sympathy and loses the breeding ground for its acceptance, even in the field of jurisprudence.

The conflict has deeply affected and wounded the feelings of belonging and citizenship of the Muslim and Jewish communities in Germany. As for the Jews, this conflict was considered in the context of German history after the Holocaust. And although this may not affect legal decisions (here we are not talking about privileges for individual groups, but about the broader right to freedom of religion), this conflict has nevertheless become a national issue in terms of its political resonance. In particular, this is evidenced by the urgency with which efforts were made to create new and clarify old legislation.

It may seem that the new legislation has calmed the anxious religious communities and guaranteed their legal security. However, there are doubts about whether it will be able to put an end to disputes and help avoid new-including jurisdictional-conflicts. On the one hand, it is connected with-

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but with a lack of clarity about the criteria for the child's well-being and best interests. On the other hand, it is a question of fostering religious and ideological pluralism in our society.

By and large, the German discussion of circumcision is extremely revealing. It reveals the current situation in society in terms of religious and anti-religious dynamics. The situation is tense and has a great potential for conflict. Religious communities and churches must be prepared for this situation, and they must be prepared to explain what they consider fundamental to their religious identity and for what reasons. They need to have arguments for what they believe should be protected by the right to freedom of religion.

Translated from English by Nikolay Kukharenko

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