For the past several years, religious rights have been “front and center” in America’s culture war.
In recognition of the increased salience of these conflicts, I included a question on my Law and Policy final about the operation of First Amendment religious liberties in a religiously diverse society. As I previously noted, that question read as follows:
The First Amendment protects religious liberty. Over the past few years, Americans have engaged in heated public debates about the nature and extent of that liberty. Some people argue that requiring employers to provide health insurance that includes contraception, or requiring businesses like florists or bakers to serve same-sex customers, is a violation of the religious liberty of those whose religions teach that contraception or homosexuality is a sin. Others disagree. What is the proper definition of “religious liberty”—that is, how far should the free exercise of religion extend in America’s diverse religious landscape? What religiously-motivated actions can government legitimately limit, and what are the justifications for those limits?
The Trump Administration (undoubtedly influenced by Pastor Pence) has promised sweeping new protections for religiously motivated actions that would otherwise be seen as violating what lawyers call “laws of general application.” Religious figures–virtually all Christian– have complained that limiting their right to ignore civil rights laws is anti-religious oppression.
Given their insistence on the perquisites of the faithful, I wonder what those pious folks will think about a case in Detroit, where a couple of doctors are proposing to test the limits of those First Amendment protections.
Two doctors in Detroit, along with one of their wives, are about to take the first religious defense of female genital mutilation to a US Federal court. The case stems from a FBI investigation into Dr. Jumana Nagarwala after the authorities received a tip that the physician was performing the procedure on young girls.
According to the original criminal complaint, the investigation revealed that Nagarwala allegedly performed FGM on two seven-year-old Jane Does, who had travelled from Minnesota with their families.
With or without an Executive Order from Team Trump, such an argument has virtually no chance of succeeding. Even if female genital mutilation is found to be a religious rather than cultural practice (an assertion that is contested), U.S. law has long protected children from harms inflicted by reason of their parents’ religious beliefs.
A competent adult can refuse a blood transfusion for religious reasons, but that same adult cannot prevent her child from receiving needed medical care. Devout parents may believe they can “pray away” their child’s diabetes, but if they act on that belief, they’ll be convicted of child neglect or endangerment.
What the case does illuminate is the conflict between individual belief and government’s obligation to enforce laws necessary for public safety and civic equality. The line is not always so clear (as the unfortunate–and in my opinion, utterly wrongheaded–Hobby Lobby decision demonstrates), but taken as a whole, the jurisprudence of religious liberty offers citizens an absolute right to believe anything, and close to an absolute right to communicate those beliefs–to preach, to attempt to persuade, even to harangue. But that jurisprudence has never endorsed an absolute right to act on the basis of one’s beliefs.
We simply do not allow people to harm others with impunity and claim a religious privilege to do so.
Granted, we don’t always agree on what constitutes harm, and people of good will can argue about cases at the margins. But when we have gone so far in the direction of privileging religion that practitioners of female genital mutilation think that the Free Exercise clause should protect that practice, that should be a wake-up call.
We are all entitled to our own beliefs. We are not entitled to impose those beliefs on non-consenting others. That goes for forced childbirth as well as genital mutilation–and the beliefs of Christians as well as the doctrines of more exotic religions.