Michigan: Federal Judge Dismisses Female Genital Mutilation Charges, Finds Law Unconstitutional
“There is nothing commercial or economic about FGM”
Tuesday, a federal judge dismissed charges of female genital mutilation against several doctors, asserting the law is unconstitutional.
The Detroit News has more:
The ruling by U.S. District Judge Bernard Friedman comes two weeks after defense lawyers mounted the first challenge to a 22-year-old genital mutilation law that went unused until April 2017.
That’s when Dr. Jumana Nagarwala of Northville was arrested and accused of heading a conspiracy that lasted 12 years, involved seven other people and led to mutilating the genitalia of nine girls as part of a religious procedure practiced by some members of the Dawoodi Bohra, a Muslim sect from India that has a small community in Metro Detroit.
Friedman delivered a significant, but not fatal, blow to a novel criminal prosecution being closely followed by members of the sect and international human-rights groups opposed to female genital mutilation. The case raised awareness in the U.S. of a controversial procedure and prompted Michigan to enact new laws criminalizing female genital mutilation.
Friedman removed four defendants from the case — including three mothers accused of subjecting their daughters to female genital mutilation — while concluding Congress had no authority to enact a law criminalizing female genital mutilation, known as FGM.
“There is nothing commercial or economic about FGM,” Friedman wrote in a 28-page opinion. (Female genital mutilation) is not part of a larger market and it has no demonstrated effect on interstate commerce. The Commerce Clause does not permit Congress to regulate a crime of this nature.”
For our previous coverage on this story, see:
Michigan Female Genital Mutilation Investigation Spreads to Other States
Attorney Claims a Mosque Paid Michigan Doctors to Perform Female Genital Mutilation
Feds: Up to 100 Girls Underwent Female Genital Mutilation in Michigan
Second Doctor Arrested for Female Genital Mutilation in Michigan
Detroit Doctor Charged With Female Genital Mutilation
Opinion here:
US v Nagarwala Dismissal Order 11-20-18 by Legal Insurrection on Scribd
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Comments
Here is the syllabus from the Course Limits of the Commerce Clause at a leading law school:
End of Syllabus.
The way it has been interpreted the Commerce Clause Limits nothing. Now I guess it allows mutilation. Go Judge.
Hmmmmm…..
By that standard we can find some judge to rule that U.S. District Judge Bernard Friedman must undergo the same genital mutilation, but performed to him, and it will not be unlawful nor unconstitutional him to submit even if forced to by police…..
What an EVIL Judge.
That is simply not true. The commerce clause has been interpreted very broadly, to allow a lot of laws that you wouldn’t think involved interstate commerce, but it has not lost all meaning, and attempts to use it to pass laws with no connection at all to interstate commerce, or to a commercial market that exists nationally, are routinely struck down.
E.g. the Violence Against Women Act. Congress’s purported nexus was that the fear of violence deters women from traveling interstate. The courts said nice try, but we’re not buying it.
Now tell me how this law has a greater connection to interstate commerce (or indeed to any commerce at all) than VAWA did.
You can go charging up the hill citing United States v. Morrisison if you wish. It will be the charge of the Light (Headed) Brigade.
It’s directly on point. How do you distinguish them?
Fake news — What about a Fake Lawyer. So I guess Federal Hate Crime Statutes are also unconstitutional Mr. Fake Lawyer.
a) There is no federal hate crime statute.
b) If there were, it would be constitutional; why wouldn’t it be? Since such a law merely enhances the sentence for violating existing laws, each of which obviously must rest on one or more of the enumerated powers, those would continue doing so.
Mr. Fake Lawyer — you forgot to Google the Justice Department website. You will find a whole section on Federal Hate Crime Laws. For example Violent Interference with Federally Protected Rights 18 U.S.C. § 245.
Do you have a PACER subscription, or access to Lexis-Nexus for legal research? Or is it just Google? Are you a member of the Supreme Court Bar?
You idiot, do you even know what a hate crime law is? 18 USC §245 is not a hate crime law. It’s an ordinary civil rights law, enacted under section 2 of the 14th amendment.
You are absolutely correct.
FGM is barbaric, and has no place in a civilized society. What this ruling does is possibly force state legislatures to do their job, and pass legislation banning this primitive, indefensible practice.
The reasoning in this decision is parallel to that employed concerning the “Violence against Women Act”, as you pointed out.
I was afraid it was being struck down on First Amendment(freedom of religion) grounds, which would have been absolutely indefensible.
This decision is entirely reasonable.
Actually first amendment grounds would have been defensible; state laws will have to survive a serious first amendment challenge, but I think they will probably overcome it. It’s not a frivolous question. The better route for states is to charge it under a more general law that already existed before this issue even came up on the horizon.
The doctors are paid for their services.
Even that was not in evidence. “There is no suggestion that the procedure is done for money.”
Guess the government didn’t cite, nor did the court read, Wickard v. Filburn (1942).
The court was certainly familiar with Wickard. Every court that has ruled on the commerce clause since then has been very familiar with it. What makes you think otherwise?
SCOTUS is free to rule that because the equipment used in the procedures traveled across State lines the Commerce Clause is implicated. The ruling is up to SCOTUS or a Circuit Court. The possibilities are endless. Milhouse’s pronouncements are as valuable as a child chewing bubble gum.
It strips the blog of purpose when an individual aggressively posts uniformed armchair Constitutional pronouncements throughout a thread. The Circuit Court will develop the Law and it will proceed from there.
I don’t know the ultimate outcome of the case, and neither does he.
The physician involved will get to spend several million dollars as the case winds its way through the appellate process.
SCOTUS is “free” to rule however it likes, in the literal sense that nobody can prevent it. But no, it is not lawfully free to do so. The constitution does not authorize it, and if it did so it would be in violation of its oath. Circuit courts are certainly not free to invent such a doctrine. If your suggestion were viable there would be nothing Congress could not regulate; certainly it could ban guns in school zones, if they weren’t made in the same state. We know it can’t do that. QED.
Do any of you really want to stop this?? There are numerous methods. First that comes to mind would be a letter to the State Board of Medical Examiners. Each letter mandates a review of the doctors practices. Then find one girl that did not care for the procedure and sue.
She seems so nice.
Creeping sharia picking up speed to galloping.
The “commerce clause”? Mutilation … robbing a young girl of her sexuality … and all that they can think of is this? Someone thought the real issue to hot to handle.
So tell me how Congress gets the authority to pass this purported law. Congress relied on the commerce clause, thinking that it usually gets away with that one; well, it didn’t this time, and do you seriously think it should have? So if not that, then what?
I consider their use of the commerce clause as stupid and not related. I consider it a quick and detached way to approach the issue that didn’t require facing the issue head on. The commerce clause has been abused as a work around for years and allowed judges to create law.
You lie. The commerce clause has never once been used to allow judges to create law. Exactly the opposite. The only use the commerce clause has ever been put to is to allow Congress to create laws, often laws it has no business creating; Congress relies on the commerce clause to create whatever laws it likes, but it can’t do that. Even in this post-Wickard world we’ve been living in for 75-odd years, there are limits to what it can be stretched to allow. Explain how it can possibly allow this law. What possible connection can you draw between this law and interstate commerce? If you can’t, then you must support this decision.
FGM has no health advantage as circumcision. It is there to compromise sexual response of women. That decision to do it leaves the young girl damaged. Talk about #MeToo!! If the adult women wishes the procedure … fine.. but not on kids. (In part this procedure was created to blunt the “sinful” nature of women… when Mohammed ascended into heaven from Jerusalem he saw more women than man going to Hell and surmised that women are innately more evil than men.)
None of that is even slightly relevant.
So you wish to continue to pick a fight with someone that concurs with you that the use of the commerce clause in this is incorrect?
You mentioned “stretched” in judicial interpretation of the commerce clause. That infers it was … ah… stretched. Has SCOTUS ever reversed a ruling on use of the commerce clause? If so than some judge did “stretch” the interpretation.
This is not a team game. Whether the procedure has any benefits, health or otherwise, is completely irrelevant. If you introduce such discussion into the topic, I will call you on it. The only purpose you could possibly have in doing so is to inflame people’s emotions, which is by definition wrong. Emotions have no place in legal discussion.
So tell me about Roe v Wade. What is its Constitutional Power?
SCOTUS is the final arbiter on Constitutionality not a District Court Judge. The decision will now proceed up the ladder. There are valid arguments for the law’s Constitutionality.
More troubling is to see a Fake Lawyer intimidating people on this blog with Gooogled legal opinions and burst posts.
Go to law school.
What possible connection could Roe v Wade have to this? Roe did not uphold a federal statute, it struck down a state statute. So how can you imagine it could have any connection to Congress’s enumerated powers?
The question here is very simple: Did Congress have the authority to enact the statute at issue? Congress’s powers are enumerated, and it is strictly limited to those powers. Any law it makes must be authorized by one or another of them as well as not being prohibited by some other part of the constitution. Congress said it was acting under the Commerce clause, but there is clearly no connection to commerce in FGM. Where the instruments used came from is just as irrelevant as where the cars used to drive the girls and the doctors, or the clothes they were wearing at the time, or whatever they had for breakfast five mornings previous, came from.
States are not limited to enumerated powers; they can do whatever they like, so long as the constitution doesn’t say they can’t. In Roe the court said one of the things they can’t do is ban abortion. Fine. Right or wrong, that’s what it said. There was no connection whatsoever to Congress’s enumerated powers. Congress had nothing to do with it. By bringing it up you expose either your own despicable dishonesty, or else your profound ignorance. One or the other.
Women’s rights are human rights
Right…
#metoo?????
#Believe All Women…….
Fine. Now show us how the commerce clause authorizes Congress to protect human rights. In particular, distinguish it from the Violence Against Women Act, which was struck down for the same reason, that it had nothing to do with interstate commerce.
Discrimination and the Commerce Clause: Application of State Civil Rights Acts in Interstate and Foreign Commerce:
https://www.jstor.org/stable/793190?seq=1#page_scan_tab_contents
If we didn’t already know you are both ignorant and dishonest as well as hateful, this would prove it. WTF have state laws or the dormant commerce clause got to do with this? Nothing. Bringing them up is probably due to your ignorance rather than to your dishonesty. Do you even know what the dormant commerce clause is, or understand that that is what the paper you linked to is discussing?
Surely the fix is to pass specific laws catered directly for dealing with Muslim FGM??
Under which of Congress’s enumerated powers?
See above.
See above for your ignorant and/or dishonest link to a paper about state laws and the dormant commerce clause?
The fix would be for the State to pass a law making it illegal.
Yes. And for state prosecutors to bring charges under that law, in state court, for offenses occurring after it passes. And then to defend that law against the inevitable and serious first amendment challenge; it would have to pass strict scrutiny, which is almost impossible, but I think this would probably be an exception. Not certainly, but probably. Strict scrutiny is usually regarded as an infinitely high bar, but it isn’t really infinite, just very very high; if there’s any law that could get over it, this would be it.
“And then to defend that law against the inevitable and serious first amendment challenge; it would have to pass strict scrutiny, which is almost impossible, but I think this would probably be an exception. “
Historically, Mohammedanism started as a religion. It floundered. When Mohammed made it more of a societal-lifestyle-military oriented organization, it took off. Where does it being a religion end, and become a fanatical cult activity start? There are incredible detailed rules for how to manage one’s life in Islam. If the barbarity tolerated under Islam is allowed, as it is a religion, what about the Crips and Bloods? Are they too a religion?
The purpose of female genital mutilation is to deprive women of the pleasure of sexual intercourse. I spent a few years in Malaysia, so I some familiarity of the topic. When boys were circumcised, it was a big deal. There was very public ceremony, and they were feted for the days of recovery. There are documented medical reasons that circumcision has advantages over being uncircumcised. The girls, from accounts I have read, were no so treated. They were blindfolded while in bed, in the middle of the night, held down by voices they recognized but could not see. There was no ceremony, and they suffered in recovery in silence. Huge difference here. To best of my knowledge, there are no known medical advantages to being having one’s clitoris removed as a young child.
All of which is absolutely irrelevant. Islam is a religion, and any law that deliberately targets a Moslem practice, rather than a wide range of behavior that incidentally happens to include it, must pass strict scrutiny. In this case it might actually succeed.
Obviously Buck, your brain isn’t soooooo fucking massive that even you can work this out…unlike our friend Mills with a brain the size of a planet HAHAHAHAHAHAHA 🙂
To disagree with Milhouse is one thing, to find him tedious is another, but there is no need to disparage his intellect. In general, I find myself agreeing with his message: regardless of how odious we find female genital mutilation, this is not the correct vehicle for correcting that problem.
There is usually no economic or interstate intersection with civil rights laws, but the Federal courts have no problem not only taking the cases, but sometimes after a defendant has been cleared or sentenced under state law. I find this decision to be a little too convenient.
Civil rights laws are not passed under the commerce clause. Tell me which of Congress’s enumerated powers allowed it to pass this law.
Section 8 – Powers of Congress
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United
States;
Just my opinion, but preventing the spread of a barbaric medieval practice that permanently disfigures women is providing for the general Welfare of the United States.
Lots of federal criminal law isn’t enumerated specifically in the Constitution.
You are wrong. Dead wrong, absolutely wrong, couldn’t be wronger.
1. The “good and plenty clause” is not a separate enumerated power. If it were, then it would eliminate the rest of the list. By pretending it is you join every dishonest leftist crank in the history of the last 100 years.
And you didn’t even do it right. Those who cite it usually omit the rest of the clause, so it really looks like “Congress shall have Power To […] provide for the[…] general Welfare of the United States”. You were foolishly honest enough to cite the whole thing, which plainly does not say what you want it to. The meaning is plain and obvious: Congress can lay taxes to pay for debt payment, defense, and whatever else it thinks would be good. How you can possibly get from there to letting it ban a surgical procedure is a mystery. The 0bamacare “mandate” was a tax; this is definitely not.
2. No, your claim that “lots of federal criminal law isn’t enumerated specifically in the Constitution” is flat-out wrong. There is no federal law, criminal or otherwise, that does not rest on one or more of the enumerated powers.
Of course not. Nor was it my intent to suggest such. And therefore over-reaching via the commerce clause should not be a defense. The prosecution should proceed on these mutilations being a violation of the civil rights of these children based on their gender and age.
If they girls still wish to mutilate themselves when of age, they can.
You’re not making any sense. People can only be prosecuted for violating a specific law. Which law do you allege they’ve violated, and what right did Congress have to make that law? Do you not understand that, unlike state legislatures, Congress has no powers whatsoever except those explicitly granted it by the constitution?
I’m gobsmacked! Is it true that the court has ruled that mutilating healthy children is legal and that congress lacks the power to make it illegal?
I suppose this decision follows from circumcision even though no matter the brutality involved.
Tell me where Congress got the authority to make it illegal. Which of its enumerated powers lets it do so? It relied on the interstate commerce clause; do you think the judge should buy that? Why?
Circumcision preceded English common law, so I assumed that common law allowed it and was the basis for its legality today.
Yet here we are in the 21st Century without a law that prohibits a brutally cruel act perpetrated upon little girls; how did we get to this place?
I don’t think the culturally-English circumcised their sons. Cutting boys is a relic of a different culture / religion. It only became mainstream recently once a veneer of science was applied.
Many states have banned it.
(Such bans may be unconstitutional; I’m not aware of one that’s yet been tested. To have it upheld the state would have to show either that it was genuinely not targeted at the religious practice, or else that it passes strict scrutiny, which is an almost impossibly high bar, but not quite, and this may be the rare case that survives it.)
Would cutting off a child’s fingers be a crime, even if the parents wanted it done? Why can’t these mutilations be handled under ordinary criminal law?
Stablesort: Female circumcision is vastly different from male circumcision as it is practiced in this country. The male equivalent would be more like castration.
Not castration. Castration (orchidectomy) is removal of the testicles.
It would be analogous to a penectomy.
Imagine if Dr. Jumana Nagarwala comes running to do a FGM on Michelle Obama? In the rush, she might cut her balls off.
Since when does Congress have the power to make “ordinary criminal law”?
Why do we need special law relating to a specific type of mutilation?
Congress has no power to ban mutilation at all. Unless you can find room for such a ban under one of the enumerated powers, it’s none of Congress’s business.
Well that’s ugly. But surely there are state laws they can be prosecuted under? General child abuse laws, medical abuse laws… something. Surely state law does not allow the removal of healthy body parts because the parent’s have stupid belief systems.
Perhaps the Michigan state legislature had better get on it.
So find a Michigan statute that covers it. In general, parents absolutely do have the right to have healthy body parts removed, if they in their sole judgment consider it in the child’s best interest; otherwise circumcision, ear piercing, and preventative tonsillectomies, appendectomies, etc. would not be allowed. The law in question says clitorises are not included in that. But it’s a federal law, not a state one, and Congress is limited to its enumerated powers.
Just be aware, by the way: any law, state or federal, that is directly targeted at a religious practice, is subject to strict scrutiny.
I haven’t looked, so I do not know if there is a Michigan statute which would cover the practice of clitoridectomy, for non-medical reasons. However, your inference that it is akin to “circumcision, ear piercing, and preventative tonsillectomies, appendectomies, etc.” is quite a ways off. Clitoridectomy serves no recognized medical purpose and is more closely akin to castration, than it is to circumcision. For this reason, a pretty good argument could be made that it is a form of child abuse, just as castration would be. If these parties are charged with child abuse and convicted in more than one state, and it can be shown that they parties traveled across state lines to commit these crimes, then federal laws governing organized criminal enterprises operating across state lines would come into play.
However, if these people traveled across state lines to perform these procedures and they were paid, or otherwise compensated for performing these procedures, then a good case can also be made that the interstate commerce clause would apply and the federal government COULD regulate the practice.
Whether a procedure serves a “recognized medical purpose” is irrelevant. Parents are not limited to “recognized medical purposes” in deciding what’s in their child’s best interest. That’s why I mentioned circumcision, ear piercing, and preventative tonsillectomies, appendectomies, etc. None of those serve a “recognized medical purpose”, but parents may decide that their child would benefit from them, either medically or in some other way. Obviously at some point the state can countermand them; the bar for that is high, but also not clearly defined.
And yes, if this “clinic” was drawing either patients or doctors from interstate, that would make it Congress’s business. Even if that wasn’t the case in this specific instance, if the prosecution could have established that an interstate industry exists and Congress intended to regulate it then the law would have been upheld. But that isn’t the case.
Actually five of the nine girls were brought from neighboring states, but that doesn’t justify a federal law that covers all such activity regardless of where anyone came from. To do that there would need to be an interstate market in this, which there isn’t.
In the first place, circumcision had a recognized positive medical advantage, in the area of cleanliness. This has changed over the years, but it has never been shown not to exist. However, we are not talking about the female equivalent of circumcision here. Clitoridectomy is actually the female equivalent of the male practice of penal castration. And I would venture to say that every state in the union would view the practice of castration as being child abuse unless there was some pressing medical reason for it. As to ear piercing, that is reversible, by simply allowing the holes to close. It is not a permanent condition. Tonsillectomies and appendectomies, while not reversible, are done for medical reasons. A clitoridectomy has NO recognized medical advantage, several recognized disadvantages AND it is irreversible, to any significant degree, just like castration. So, it could be considered child abuse, just like ritual scarring. It could be argued that this procedure is, in fact, child abuse under Michigan state law. Parents do not have carte blanche to do anything that they want to their children.
While the law appears to be inapplicable in this case, it is not necessarily unconstitutional, especially on the rational provided by the judge. Other factors, such as compensation and/or travel to another state to perform the procedure, might make the application of the law constitutional. Also, as this procedure would likely be considered child abuse, felony child abuse at that, the state(s) involved should investigate and prosecute locally.
Whatever medical advantage circumcision has (or was once believed to have) is not a factor in its being legal. It’s legal because the parents believe it’s in the child’s best interests, and it’s not glaringly obvious that they’re wrong. You keep on ignoring that I wrote “preventative tonsillectomies and appendectomies”, i.e. they are done not because they are medically required but because the parents believe that it is in the child’s best interests. I believe ritual scarring is absolutely legal, if the parents think the child should have it.
I am very well aware that clitoridectomy is not equivalent to circumcision (though I should point out, and you should consider, that there do exist female “circumcisions” that are equivalent to the male version, and any legal action against mutilation should be careful not to sweep those up in the same net). It is indeed more like castration than like ritual scarring, which is why I think a law targeting it may very well be one of the few exceptions to the general rule that strict scrutiny in theory means impossible scrutiny in practice. But the lack of a “recognized medical purpose” can’t be the reason for that.
The critical factor is that at some point a parent’s decisions for his/her child become so clearly counter to the child’s interests that we see no choice but to intervene. Where that line is drawn is a very fraught topic. Sometimes I think it should be drawn to include decisions such as not vaccinating ones children. I certainly thought it should have been drawn to include Elian Gonzalez’s father’s decision to take him back to Cuba. On the other hand some people think it shouldn’t include decisions to let a teenager have himself willingly castrated. At any rate most people would probably agree that having a baby or very young child unwillingly castrated, or the female equivalent, should be included in those rare cases where the state must intervene.
Feminists???? crickets. So Disgusting. So Disgusting.
She seems so lovely nice. So wonderfully nice.
Girls: hide your crotch!
Hey, maybe this could have a beneficial effect: the ongoing de-slutization of American women.
elle, lend me your hat. I may vomit.
Much as I detest FGM, the judge is right. This kind of law needs to be state level. Federalism, yo.
I can not. I just, can not. I’m horrified.
While I generally am highly in favor of limiting the reach of the federal government, the apparent belief that if it’s not in the commerce clause, it’s not permissible. seems incredibly weird.
There are lots more clauses in the Constitution than just the commerce clause. Maybe the judge should have found that this was not covered under the emoluments clause, or that it violated the quartering of soldiers. It would have made just as much sense.
1) So tell me which clause does authorize it.
2) Even if you can find one, it’s not up to the judge to do so. He’s limited by the evidence before him.
Discrimination and the Commerce Clause: Application of State Civil Rights Acts in Interstate and Foreign Commerce:
https://www.jstor.org/stable/793190?seq=1#page_scan_tab_contents
Clitorises are people, too.
Once again, so profoundly irrelevant that nobody capable of reading it could honestly think it added anything to this discussion.
No, Othniel, Female Genital mutilation, and here’s where I puke. I have to stop here.
OK, everybody, take a breath.
The opinion cites and follows recent Supreme Court decisions that struck down the federal “violence against women act” and the federal ban on possession of guns on school grounds, both because the Commerce Clause was the only source of federal jurisdiction and it failed there as it does here to authorize federal criminal legislation on this specific procedure.
But note that the court also cites the government’s assertion that 28 states have already enacted specific anti-FGM laws. It points out in those without such laws, there are already criminal statutes around child abuse and sex crimes (and non-medically appropriate surgeries — remember the prosecution for the death of an adult whose butt was being injected and enlarged by a unlicensed quack?).
Plenty of legislation under which this type of mutilation can be lodged and prosecuted. State and county prosecutors — get going!!
Is this really where you wanted to go?
Well Lorena did get off ,equal justice under the law , you know
It is certainly true that the commerce clause is stretched rather thin for this particular law. However it is stretched foar thinner for many others, such as banning the production and consumption of marijuana produced entirely in one state on the theory that electricity used in its production may have crossed state lines (SJC ruling). In other words, everything Is subject to the commerce clause, because some tangent of its existence may possibly involve interstate commerce.
This time, the judge suddenly finds an outbreak of restraint and federalism whete none is found before, or probably after. Bullshit.
Raich was a stretch, but not nearly as great a stretch as would be needed here. I don’t know where you could have got the idea that Raich had something to do with electricity. It doesn’t.
The only real question in Raich was whether the (undisputed) existence of a thriving interstate market in marijuana should be ignored because it’s illegal. It would have been nice if the court had bought that argument. It would have been even nicer if the court had said, “you know what, maybe we were wrong in Wickard“. But it didn’t. The black market clearly does exist, and Raich’s growing operation, taken together with all similar operations, clearly took customers away from that market, thus lowering the prices on it, just as Filburn’s wheat crop, taken together with all similar ones, depressed the national wheat market.
judge does have a point about the commerce clause.
but…Child Abuse Prevention and Treatment Act seems to cover it although I am not well versed on that federal law.
On which of the enumerated powers does that Act rest?
as said, not well versed on that one so cannot say for sure and suspect it could also face similar challenges.
course using that parameter most laws and many departments (bureaucracies) would fail.
however if the child in question was transported to different state for procedure that does change stuff.
grr I forgot a few had been transported so last sentence is false.
Yes. Simply traveling from one state to another is not commerce. And there’s no evidence that they paid anything for this service. Even if there were, though, the law itself is unconstitutional, so it can’t be enforced against anyone. If it had restricted itself to those traveling between states and paying, then it would probably have survived.
Commerce clause: trafficking in clitorises.
Hey, elephants and tigers are protected, so why not women?
As Professor Reynolds says (all caps in original): “YOU TRY FOR DECADES TO GET THE FEDERAL COURTS TO PAY ATTENTION TO ENUMERATED POWERS, AND THEY IGNORE YOU. THEN WHEN THEY FINALLY LISTEN, IT’S THIS CASE.”
This is not the only case where they listened. Granted there aren’t many, because Wickard opened a door so wide that only rare cases fall outside it, but this is clearly one of them. We already knew (and the InstaProf seems to have forgotten) that the Violence Against Women Act was struck down for not fitting within the Wickard doorway; I don’t see how one could distinguish this case from that one.
Too bad these little girls were not illegals trying to sneak across the border. Then all of SanFran and the 9th Circuit would have come riding to their defense. Instead, they’re being told to embrace their cultural heritage and not scream so much. So much for protecting children. Because that was the point. The kids. Not legalistic arguments about the scope of this law or that or who understands what better. It’s the children, stupid.
No, it’s about the law. The law is more important than anybody’s children.
The only reason for the law is to protect children. Otherwise people might look for justice on their own. Duh! What kind of society would emerse itself in intellectual niceties while children are being mutilated? What good is your law then?
People fought and died to protect the law. Therefore the law is more important than anybody’s life. Without the law we have no liberty, no safety, nothing worth living for.
Billions of people live without the protection of any law other than what their rulers say it is. The protection of the law has not existed and does not exist in the majority of space and time. I understand the benefits of the law, as we understand it. I’ve read your arguments here, and I understand you are committed to principle. I cannot judge the nicecities myself. But I can tell you that this is the wrong issue to be correct on. If Americans come to understand the barbaric mutilation involved, fury will be directed at the judge who provided protection to the mutilators. Decisions like this one seriously undermine public confidence in the judiciary. It is a classic case of winning the battle but thereby opening the path to losing the war. I don’t think this will go away.
A judge literally has no right to give a false decision, no matter what the consequences. His duty is to the law, not to the children. Fiat justicia ruat cælum. If you are willing to overthrow the constitution “for the children” then you are the enemy.
I’m confused. If Muslims can perform clitorectomies why do I have to bake gay wedding cakes?
You don’t have to bake gay wedding cakes, unless there’s a local law saying you do. Then you can question whether baking cakes is a first-amendment protected activity. But without such a law the case doesn’t arise. Ditto with clitorectomy. If there’s a local law, the defendants can raise a first-amendment challenge which would have to be resolved, but without a law there’s nothing to discuss.
OK, if FGM is a religious liberty I can go crusading.
Judge is correct – Commerce Clause can’t be used for this.
That’s the only issue decided on in this ruling, and it is absolutely correct.
Want to ban this? Pass State laws, through State legislatures or by referendum.
Even then, there’s going to be a major problem with the 1st Amendment. The procedure, IMO, is barbaric – intended to permanently deny women pleasure from sex, serving no other purpose. BUT, as an established religious practice, it is protected.
I have to tread lightly here. Is there a major problem with the First Amendment? I think not.
https://en.wikipedia.org/wiki/Employment_Division_v._Smith
“Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), is a United States Supreme Court case that held that the state could deny unemployment benefits to a person fired for violating a state prohibition on the use of peyote, even though the use of the drug was part of a religious ritual. Although states have the power to accommodate otherwise illegal acts performed in pursuit of religious beliefs, they are not required to do so…”
Try defending yourself against a murder charge by asserting your sect’s claim to blood atonement.
Arradin is correct that it would be a major problem, but it may not be insurmountable. Smith is precisely the point. If the state could show that the law is general, and genuinely not targeted at this specific religious practice, then it’s protected by Smith, and the federal RFRA does not affect it, so the only remaining question would be if there is a state RFRA.
But in such a case that would be difficult to show. Any law that specifically targeted clitoridectomy would be suspect, because nobody else does that, so it would obviously be targeted at a religious practice. The state could deny it all it liked, but the facts would speak for themselves. For instance, the court would ask why the legislators had not passed the law before they heard of this practice.
The other way to uphold it would be to concede that it was indeed targeted at a religious practice, and is therefore subject to strict scrutiny, but to attempt to pass that scrutiny. This is one of the few cases that might actually be able to do that. Strict scrutiny is a high barrier, but not insurmountable.
Well, I suppose the medical board could pull her license (hasn’t she violated the Hippocratic oath to “do no harm”?).
But then again, they allow doctors to mutilate perfectly healthy teen trans and to
terminate perfectly healthy developing babies………….
Here’s another area where I have to tread lightly. And the fact that I am convinced that I must tread lightly is exactly the problem.
I hate to side with Michael Avenatti, but the fact is it’s now OK to hit women. It must be, because we as a country have decided we should put women into ground combat.
Really…
Make up your minds, people. Is it not OK to hit women? Or can I beat them to death with the butt of my rifle?
It pains me to ask the question.
The law has never made any distinction between hitting men and hitting women. It is lawful to hit a woman any time it would be lawful to hit her were she a man; and at no other time. Remember that domestic violence is not a male-on-female crime. Every study for the last 50 years has shown that men and women are equally likely to beat their partners, and are equally likely to be beaten by their partners.
I’m looking for some back up. I don’t care if you are wielding a pristine sterilized scalpel or a rusty can top. I don’t care if you are a man or woman. I will knock you out if you come after, well, really, somebody I never met. Because it’s wrong.
I left out the part about somebody I care about or never met. It makes no difference to me.
Ayaan Hirsi Ali has written eloquently on the subject. Having been subjected to it herself.
https://www.thedailybeast.com/female-genital-mutilation-ayaan-hirsi-ali-on-the-injustice
My disgust is complete. elle, I may still vomit. I am still crying.
“The case raised awareness in the U.S. of a controversial procedure and prompted Michigan to enact new laws criminalizing female genital mutilation.”
So, these new state laws prohibit these barbarians from mutilating their daughters?
The article is unclear.
Yes. Though they haven’t yet been tested, and when they are they will face a difficult time passing strict scrutiny. But they may be upheld; strict scrutiny is not impossible scrutiny.
7th century Islamic savagery, coming to an neighborhood near you. WAKE UP AMERICA.
You give me hope. You get it. It makes the twenty years I spent in the Navy worth it. In all sincerity. Thank you.
Wow Rick Moranis has really fallen. He’s stooping to doing FGM to get by.
He’s masked because apostacy is a death sentence in Islam.
https://www.youtube.com/watch?v=0LE3QARjIZg
“Paedophilia & child marriage in Islam” The Masked Arab.
https://www.youtube.com/watch?time_continue=9&v=acHaWr12jAM
“Quran burned in Iran by a Persian and Afghan man. Free Iran NOW!”
I dearly like Iranians. They have lived under a the0cracy.
Those b#$%%$%.
Eugene Volokh has excerpted the most important parts of the decision.
Everyone on this thread who would have the judge ignore the constitution “for the children” has no right to protest when our opponents do the same thing. How many times have you railed against that phrase “For the children”? How many times have you condemned “living constitutionalism” and results-based judging? Liars, the lot of you. You are exposed as results-based yourselves, having no principles but deciding your positions based on whose ox is gored.