Written by Don Byrd
In Michigan, federal charges have been brought against the mothers of two 7-year-old girls, as well as a doctor, clinic owner and assistants, for their participation in female genital mutilation procedures. The clinic has been closed. Defense attorneys have stated they intend to mount a religious freedom defense. The defendants are all reportedly members of a sect of Shiite Islam that considers the procedure to be a religious ritual.
FGM has been outlawed in the United States since 1995, and is considered a human rights violation by the World Health Organization. This is the first such prosecution in the U.S., according to a Christian Science Monitor report, which lays out the basic tension likely to emerge at the center of the case:
“Most religious freedoms don’t really affect other people,” says Frank Ravitch, an expert on law and religion who teaches at Michigan State University’s law school. “There are exceptions, but not in this direct a way, where we have these young girls who are having their bodies affected. It raises some really powerful questions.”
In the Michigan case, the courts will weigh a religious minority’s rights against the federal government’s interest in protecting children. Experts agree that if the government proves the procedure caused substantial harm to the girls, then convictions are virtually guaranteed.
“Religious freedom does not include the freedom to do things that we all consider harmful to children,” says Robert Sedler, a constitutional law professor at Wayne State University in Detroit.
It is unclear whether the defense will claim a First Amendment right, or will claim a defense under the federal Religious Freedom Restoration Act. Either way, courts applying these laws have consistently ruled against parents who claim a religious freedom right to harm children. See, for example, this earlier post referencing a 2016 Massachusetts case.
The issues are different in this case, and the particular facts will be central to the outcome, but the government’s strong interest in protecting children remains the same. As the BJC’s Holly Hollman wrote in a 2015 column about parental requests for exemption from vaccination requirements, “In cases involving the health of children, the government’s interest is one of the highest order, not easily susceptible to challenge.”