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A reader asked me about the religious exemption defense being raised in the Detroit female genital mutilation prosecution. See this Detroit Free Press article by Tresa Baldas for more information:

Defense lawyers plan to argue that religious freedom is at the core of the case in which two physicians and one of their wives are charged with subjecting young girls to genital cutting. All three are members of the Dawoodi Bohra, a small Indian-Muslim sect that has a mosque in Farmington Hills.

The defense maintains that the doctors weren’t engaged in any actual cutting — just a scraping of the genitalia — and that the three defendants are being persecuted for practicing their religion by a culture and society that doesn’t understand their beliefs and is misinterpreting what they did.

I thought I’d mention a few things about the legal issues, though I should note that much turns on the medical facts, on which I’m not an expert.

1. To begin with, this is a federal prosecution, so the federal Religious Freedom Restoration Act applies. That law provides that the government (A) may not substantially burden people’s religious beliefs unless such a burden is (B) the least restrictive way of serving a compelling government interest. Here, press accounts suggest that defendant doctors will argue that their actions were part of their and the girls’ parents’ religious practice; if the actions were indeed part of religious practice, then element (A) would be satisfied, because it broadly covers governmental interference with “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” [UPDATE: Note that it doesn’t matter whether Muslims generally view such actions as religiously mandated or motivated, or whether the Dawoodi Bohra so view it; rather, the question is whether the people involved in this case so viewed it.]

(It’s also possible that the doctors will argue that they are implementing the parents’ constitutional free-exercise clause rights under the “hybrid rights” theory noted by Employment Division v. Smith (1990) and not just statutory rights under the RFRA; but I set that aside for now, since that won’t give them any more rights than the RFRA does.)

2. Of course, the government has a compelling interest in preventing substantial harm to children. If the practices here seriously interfered with the children’s future sexual pleasure or caused other significant physical harm, element (B) would be satisfied and the defendants could be convicted. As I understand it, much female genital mutilation causes precisely such harms.

3. But the defense here appears to be that the doctors engaged only in a ceremonial nick or scrape, which would have no long-term physical effect. If this is factually true — and I don’t know if it is — then the RFRA could indeed offer a defense here, precisely because the interest in preventing serious harm to children would (by hypothesis) not be involved.

The criminal complaint states, as to the two girls, that “MN-V-1’s labia minora has been altered or removed, and her clitoral hood is also abnormal in appearance,” and that “MN-V-2’s clitoral hood has a small incision, and there is a small tear to her labia minora.” But the complaint does not indicate whether the long-term effects are expected to be harmful, and some alteration and removal of tissue does not cause such harm (for instance, the American legal and medical establishment generally takes the view that male circumcision, though it involves alteration, removal and change of appearance, does not have harmful long-term effects). Presumably the government will introduce evidence at trial about any likely harmful long-term effects — such evidence is not relevant to the federal female genital mutilation statute itself, which applies to anyone who “knowingly circumcises, excises, or infibulates the whole or any part of the labia majora or labia minora or clitoris of another person who has not attained the age of 18 years,” but it would likely be relevant to the RFRA defense. (There would also be a separate statutory question as to whether a modest enough cutting, as with MN-V-2, just doesn’t qualify as “circumcis[ion]” or “excis[ion]” for purposes of the statute.)

4. One could argue that there is a compelling government interest in preventing any cutting of children’s bodies (even with the parents’ permission), at least without their informed consent, except for medical purposes. This would be an interest in protecting bodily integrity, not in preventing serious physical harm.

But it’s hard to see how the government can label such an interest as compelling when a wide range of cutting of children at their parents’ behalf is allowed. One obvious example is male circumcision; to be sure, there are plausible (but contested) arguments that male circumcision is medically beneficial, but many parents have it performed for entirely nonmedical reasons. Beyond that, parents are allowed to get their children’s ears pierced, and many do so when the children are just babies, for no reason other than aesthetics. Our legal system just doesn’t generally treat protecting children’s bodily integrity as a compelling interest, unless serious harm is involved.

5. What if there is no long-term harm, but significant short-term pain? The criminal complaint indeed suggests that this was so: “MN-V-2 said that after the procedure, she could barely walk, and that she felt pain all the way down to her ankle.” Does the government have a compelling interest in preventing such pain?

Here again male circumcision is likely to be offered as an analogy. Most circumcised boys in the United States are circumcised as infants, so it’s hard to know just how painful the procedure is for them. But, as I understand it, some Muslims circumcise their boys (again, for religious reasons other than medical ones) at various ages up to 13. I am told that this circumcision could be quite painful, yet the law still allows it. Should that suggest, either under the RFRA or even under the equal protection clause, that ceremonial nicking or scraping of girls’ genitals cannot be treated differently? (Again, we’re hypothesizing here that the nicking or scraping is minor enough to cause no lasting damage, but does cause pain.) And can we effectively compare the magnitude of this sort of pain across people and procedures?

6. Now some people might object to the application of the RFRA here, for (at least) two reasons. First, they could argue, whatever rights people should have with regard to their own lives, they should not extend to things people to do their children (or to other people’s children at the parents’ request). Second, they could argue, the law shouldn’t turn on these sorts of complicated factual inquiries; if the federal statute bans a certain kind of practice, judges shouldn’t limit the ban based on their factual guesses about long-term harms.

But whatever the merits of those positions as a policy matter, it’s clear that the RFRA embodies a different view. One of the cases that Congress was specifically trying to “restore” — Congress said so in the statute itself — is Wisconsin v. Yoder (1972), in which the Supreme Court upheld Amish parents’ rights to withdraw their children from all formal schooling (public or private) at age 14, when state law required schooling until 16. The government argued that the parents shouldn’t be able to deny their children these two years of high school, especially because of te possible long-term harms of such lack of education. But the court (A) concluded that religious freedom rights extended to parents’ actions with regard to their children and (B) examined the factual evidence in the record to conclude that, with this community and this particular exemption claim (no formal education past age 14, rather than, say, past age 10), exempting the Amish from the law wouldn’t really do any long-term harm.

Again, one might think this is wrong; Justice William O. Douglas wrote what struck me as quite a powerful dissent in Yoder. But the RFRA does incorporate these principles.

7. More broadly, one purpose of religious exemption regimes is precisely to make sure that broad statutes, sound as they may be in general, aren’t applied in situations where they both (A) interfere with religious practice and (B) aren’t really necessary, given the specific facts of the case. Thus, for instance, in Holt v. Hobbs (2015), the Supreme Court unanimously concluded — applying the RFRA’s close relative, the Religious Land Use and Institutionalized Persons Act (RLUIPA) — that a ban on inmate beards, even if permissible in general, had to have an exemption for very short beards worn by inmates who felt a religious obligation to wear a beard. The court concluded that, on those facts, the very short beards didn’t materially undermine prison security, even if beards in general might.

Likewise, here the defendants seem to be claiming that, even though the ban on female genital mutilation may generally prevent long-term harm to women, there’s no real need to apply it to the minor religiously motivated procedures involved in this particular case. If (again, if) their factual claims are well-founded, that may be enough to get them the exemption.

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Finally, two requests for commenters, just because I think they may help produce a better discussion:

i. If you are arguing that the religious exemption should or should not be available, please indicate whether (a) you think this is because the defendants’ practice will or will not cause serious long-term physical harm to the girls or (b) you reach your view regardless of whether there will be such harm.

ii. If you are arguing that the religious exemption should be unavailable, even if there is no serious long-term physical harm, please indicate whether (a) you think the same should apply if the government banned male circumcision (presumably, based on a finding that such circumcision has no or negligible medical benefit) or (b) you think that there should be a religious exemption available for any such hypothetical ban on male circumcision. (Such bans are unlikely in the near future at the federal level, but they might be possible in some locales; there has been talk of one, for instance, in San Francisco, though ultimately that proposal did not prevail.)