Berlin Rabbi Yehuda Teichtal and Ashkenazi Chief Rabbi of Israel Yona Metzger(source)

You may have heard about the report that a rabbi in Germany (of all places!) is being criminally charged for practicing circumcision. But over the long weekend, word came through from a local source to Ed Whelan that the story has been misinterpreted:

I understand that you are just conveying a report that appeared elsewhere in the press, but as far as I know, that report is not accurate. Prosecutors have not brought criminal charges against the rabbi in question, at least not in the sense you probably intended.

 

What’s happened is this: An anti-circumcision activist filed a written criminal complaint with the police in Bavaria, based on the fact that the rabbi advertises himself as a ritual circumciser (mohel). Under German law (as far as I understand it) the prosecutors are obligated to investigate the complaint. The precise form of that investigation (within legal boundaries of course) is completely up to them and the police, but they have abundant discretion, as in the U.S. I note that the rabbi, David Goldberg, says he hasn’t even received official notice of any charge.

 

In short, a citizen has charged another one with a crime, but the state has not charged anyone yet; an “investigation” is ongoing, and not a terribly aggressive one by the looks of it. This report, from Die Welt, strongly implies that the prosecutor is going to take his sweet time, thank God.

 

Meanwhile, a similar accusation in Berlin ended with the state prosecutor declining to bring a case, saying there was no evidence of a crime.

 

It is profoundly troubling for a lot of reasons that these people are making criminal complaints against rabbis for practicing their faith at all. I am glad that you are helping to call attention to the situation — but as bad as things are, they are fortunately not quite as bad as you portrayed them.

Whelan describes the source as “a well-informed reader whose judgment I respect.”

This certainly changes the narrative about what’s going on in Germany, and I think it offers some important new lessons as we wrestle with religious freedom in the U.S.

One lesson is that the law and the constitutional order matter. Germany has this problem because, like most of Europe, its legal system is still too much shaped by premodern assumptions about the nature of political authority and its relationship to the social order. Try explaining to the average American that Germany has a system where you can file a criminal complaint about your neighbor and prosecutors are obligated to investigate it. We should be thankful – while we still have it – for our system of the rule of law, personal liberties and checks and balances, which allows us to hold coercive power at arm’s length.

Another is that the real legal and political issues are deeper than “religious liberty” narrowly understood. The problem in Germany is not that it has the wrong policy on circumcision. The problem is the legal and constitutional order at a much deeper level. When you have a system that assumes every act is subject to a sort of presumptive societal review, you can have religious toleration (we, society, decide to permit you to practice your religioun) but not freedom of religion – a social order in which the primacy of the conscience is taken for granted as the bedrock social commitment.

A third is that extralegal norms matter just as much as the law. There is no system that will always prevent cases arising that threaten to do gross injustice and call into question the security of our most basic liberties. When that happens, our liberties depend on some anonymous Herr Schmidt deep in the bureaucracy saying to himself, “here’s a case where the rule was made to be bent,” or even broken. God bless those German prosecutors for knowing when a “mandatory” investigation needs to fall between the cracks and sit there for a while.

Speaking of which, a fourth lesson is that one of the most important sources of extralegal norms is professional mission, ethics and pride. It’s important to tell people that they should be ready to stand up for anyone’s rights, any time. But what’s really going to save us is if everyone has a strong sense of the mission of his or her profession (such as being a prosecutor), the moral responsibilities imparted by that mission, and the sense that our personal dignity depends in part on our willingness to prioritize that mission and those ethics above the short-term imperatives of our organizations and our personal interests. You can bet that Herr Schmidt, whoever he is, is thinking a lot right now about the purpose of his office.

Let’s hope he’s not the only one.