Religious Defense in Landmark Female Genital Mutilation Case
"On paper, the law seems clear: Cutting any part of a young girl's genitalia is illegal — and no custom or ritual can be used to justify it.
"The law has been on the books for 21 years, unchallenged. But in a federal courtroom in Detroit, a landmark case involving the centuries-old taboo ritual is about to put that law to the test for the first time.
"And perhaps more historic, a question will be raised in the American legal system that has never been raised before: Does the U.S. Constitution allow for genital cutting, even if it's just a minor nick or scraping, in the name of religion?
"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.
"First Amendment scholars across the country — liberal and conservative alike — are closely following the case, noting that the fate of the accused will largely rest with scientific evidence.
"The key question for jurors to answer will be: Were children harmed physically? If they were, experts say, the religious freedom defense doesn't stand a chance.
"But if the defense can show that it was just a nick and caused no harm, some experts believe, the defendants could be acquitted on religious grounds.
"The Detroit case involves the genital cuttings of two 7-year-old Minnesota girls whose mothers brought them to a Livonia clinic for the procedure in February.
"Defense lawyers have argued that the defendants are good, hardworking people with deeply held religious convictions who were involved in only mild procedures that are part of their faith.
"But the government says the harm was much more severe than the defense is claiming and that there are multiple other victims. According to court documents, the two Minnesota girls had scarring and abnormalities on their clitorises and labia minora
"It is hard for me to imagine any court accepting the religious freedom defense given the harm that's being dealt in this case," said First Amendment expert Erwin Chemerinsky, one of the nation's leading constitutional law scholars who called the religious claim in the Detroit case a "losing argument."
"You don't have the right to impose harm on others in practicing your religion," said Chemerinsky, dean of the law school at the University of California at Irvine who in January was named the country's most influential person in legal education by National Jurist magazine.
"Chemerinsky, who has written a leading textbook on constitutional law, said there is "no absolute right" to religion in the U.S., noting many parents over the years have fought for the right to refuse their children medical care because of religious beliefs. But those parents, many of them Jehovah's Witnesses or Christian Scientists, have consistently lost those cases, he said.
"Chemerinsky believes the Detroit defendants will lose, too.
"I can't imagine any court that would say that the parents' right to practice their religion gives them the right to inflict this harm on their daughters," Chemerinsky said, adding what will ultimately decide this case is the science.
"It's going to come down to medicine, and if (the procedure) really inflicts great, lifelong harms on those who are subjected to it — that's what is going to decide this case," he said.
"/First Amendment attorney Brad Dacus, president of the Pacific Justice Institute, a conservative legal defense group in California that defends religious freedom, parental rights and other civil liberties, agreed.
"He said while genital mutilation is a novel issue for the federal courts, the government's interest in protecting the safety and well-being of children will likely outweigh religious freedom.
"As far as case law goes, this is new territory," Dacus said. "But the courts have held in the past that religious freedom is not an absolute right. And it is subject to a state interest that is narrowly tailored."
In this case, the government's interest is in protecting children from what it has claimed is an illegal and harmful procedure.
"This issue involves the direct health, safety and welfare of minors, not just for the short term, but literally for the rest of their lives," Dacus said. "And it impacts not only their body, but also potentially their future spousal relations."
"As for the defense claims that the procedure was more mild than what the government claims, Dacus noted: "There are experts who contend that even the most mild procedure is still harmful."
"He continued: "The science is definitely going to come into play there. I think the procedure itself is highly suspect for surviving scrutiny."
"Michigan State University law professor Frank Ravitch, who specializes in law and religion, said the only way the doctors could win based on freedom of religion is to show that there is a "more narrowly tailored way" to meet the government’s "extremely strong interest" in protecting the young women.
"It is theoretically possible that if the procedure really was just a nick that does not cause lasting damage and does not harm sexual health or sensitivity for the young women, allowing the nick, but nothing more, could be more narrowly tailored than an outright ban," Ravitch said. "It would also keep the practice from going underground, which could lead to more serious mutilation."
"That philosophy — preventing more serious mutilation — was at the heart of a controversial stance taken years ago by the American Academy of Pediatrics. In 2010, the AAP came under fire for changing its policy on female genital cutting by recommending that doctors be allowed to ceremonially nick the clitoris of girls at the requests of parents. The goal was to prevent girls from being subjected to more harmful forms of genital mutilation either overseas or in secretive procedures in the U.S.
"In the statement, the AAP's Committee on Bioethics wrote: "It might be more effective if federal and state laws enabled pediatricians to reach out to families by offering a ritual (clitoral) nick as a possible compromise to avoid greater harm."
"Within weeks of issuing the statement, after facing mounting pressure from advocacy groups, the AAP went back to its original position in banning all forms of genital cutting."
Tresa Baldas - Detroit Free Press - May 20, 2017