For the first time, the federal government is prosecuting a case of female genital mutilation (FGM). Six people in Michigan — including two doctors, two assistants, and the girls’ mothers — have been charged with participating in the mutilation of two seven-year-old girls. The doctors and families of the children are members of the Dawoodi Bohras, a community from West India that practices FGM for religious reasons.
Citizens should generally be permitted to act upon their sincerely held religious beliefs, even if their actions are prohibited by neutral, generally applicable laws. And laws banning a religious practice are almost never constitutional. But if the state has a compelling interest and bans a practice in the least intrusive way possible, even actions motivated by religion may be restricted. Such is the case with FGM.
FEMALE GENITAL MUTILATION
FGM is the nonmedical procedure of removing part or all of the external female genitalia for cultural, traditional, or religious reasons. It is widely practiced in Central and North Africa and parts of Asia, but it also occurs in Western countries — primarily in immigrant communities. FGM is often seen as an Islamic practice, but research indicates that ethnicity plays an important role among those who practice it. The United Nations reports that the practice is not diminishing, despite campaigns waged against it.
The reasons for practicing FGM vary from community to community. In many instances, the ritual fuses with religious practice and takes on the character of a religious duty despite the fact that no text of a major world religion instructs its followers to participate in it.
Since 1995, FGM has been prohibited in the United States as a matter of federal law for females under the age of 18. The law specifies that believing “that the operation is required as a matter of custom or ritual” is no defense against prosecution.
The language of this law can be read as banning a religious ritual. If so, this law must be subjected to the strictest scrutiny. Most laws fail such scrutiny, but this one does not.
Religious liberty is a fundamental American value, but it is not a trump card.
The state has a compelling interest in banning FGM because it affects the well-being of girls and young women who are unable to give informed and proper consent to permanent modifications of their bodies. The practice inhibits sexual pleasure, makes childbirth more difficult, and can lead to a host of other lifelong medical and mental problems.
(Whether the state has a compelling interest in prohibiting the practice if a woman over the age of 18 clearly and freely desires to participate in it for religious reasons is a different question, and one that we do not address here.)
In this case, by banning only the procedure as opposed to, say, putting people who believe in FGM in jail to prevent them from doing it, the state has restricted it in the least intrusive means possible.
Religious liberty is a fundamental American value, but it is not a trump card. FGM is one of the rare instances where the state may justly override an individual’s or community’s sincerely held religious beliefs for the good of its citizens.
Admittedly, what counts as a “compelling interest” can be hard to define. Basically, it means a very good reason—in this case doing something to unconsenting girls that can cause physical and psychological harm. But there are no bright lines for the “compelling interest” standard. It is possible for someone to object that the harms of FGM aren’t really so bad, though we think it’s clear that the harms are very serious.
Ultimately, we’ll have to let you the reader — and, later, federal judges, decide.
Originally posted on Western Free Press: