Religious Liberty Does Not Legitimate Female Genital Mutilation

Open Letter to Alan Dershowitz

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June 9, 2017

Dear Professor Dershowitz:

We write as attorneys who have, like you, litigated in support of fundamental constitutional freedoms, in particular one of the most foundational: religious liberty.  According to published reports, you will be offering a freedom of religion defense for three individuals in Michigan recently charged with violating federal law prohibiting Female Genital Mutilation (FGM).  We respectfully disagree that this barbaric practice must be permitted under the First Amendment or the Religious Freedom Restoration Act (RFRA).

To begin, the U.S. Supreme Court has made clear that the right of free exercise does not relieve individuals of the obligation to comply with a valid or neutral law of general applicability on the ground that the law proscribes conduct that is required by his or her religious practice.  The laws banning FGM are such laws.

Nonetheless, even if laws banning FGM might not be considered neutral laws of general applicability, that does not necessarily mean that the government cannot proscribe this brutal practice.  Indeed, this is a situation where it is more likely than not that the government would satisfy the highest level of scrutiny.  That is, a law banning this barbaric practice would be in furtherance of a compelling governmental interest and the least restrictive means of furthering that interest.

With this as a background, there is, as you know, case law that bars in this country behavior that some religions consider sacred.  For example, laws barring polygamy and the religious use of peyote have been upheld in America.  We can find no basis for believing that a federal statute or a state law designed to protect young girls from having their genitalia involuntarily and permanently disfigured would be considered unconstitutional or in violation of RFRA or any state law counterpart to RFRA.  That is especially true when, in addition to the life-long denial of sexual pleasure such a procedure imposes, the short- and long-term medical problems frequently associated with it are factored in.

We also believe that it is simply physiologically inaccurate to portray the mutilation of female genitals as akin to male circumcision, and therefore permissible.  In fact, such mutilation is more akin to male castration than it is to the removal of a baby boy’s foreskin.

Finally, although various Islamic communities believe that Sharia law either permits female genital mutilation, condones it and/or makes it obligatory, author Nonie Darwish – a former Muslim whose mother was subjected to FGM in her native Egypt – notes that the justification is strategic, not religious.  Ms. Darwish observes that by mutilating a woman, and thus denying her the ability to experience sexual pleasure, the authorities of Islam render her less likely to feel an attachment to her husband and thus less likely to object when he is called to jihad.

For all these reasons, we expect that the federal judiciary will properly reject claims that there is a protected religious right to FGM.

Sincerely,

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Robert J. Muise, Esq.                                      David Yerushalmi, Esq.

Co-Founder and Senior Counsel                 Co-Founder and Senior Counsel

***NEWS RELEASE***

For Immediate Release
June 9, 2017

CONTACT: Beth Harrison, Hamilton Strategies, 610.584.1096, ext. 104, Media@HamiltonStrategies.com, or Deborah Hamilton, 215.815.7716, 610.584.1096, ext. 102

Religious Liberty Does Not Legitimate Female Genital Mutilation

Two Prominent Freedom of Religion Litigators Issue Open Letter to Alan Dershowitz, Challenge Idea that F.G.M. is Constitutionally Protected

Washington, D.C. – Two of the most effective advocates in American jurisprudence on behalf of constitutional religious liberty protections, David Yeruslami, Esq. and Robert Muise, Esq. of the American Freedom Law Center (AFLC), today weighed in on a momentous question:  Do those who believe they must, in the practice of their faith, mutilate the genitals of young girls, have a right to do so in the United States?

Messrs. Yerushalmi and Muise argued forcefully that religious freedom does not negate prohibitions on female genital mutilation (FGM) at the federal level and in twenty-four states in an open letter to another distinguished litigator, Professor Alan Dershowitz, released today.  Mr. Dershowitz has recently been enlisted to help in the defense of three individuals charged with violating such laws in Michigan.

In their letter, the AFLC leaders explained that the government has a “compelling interest” in protecting females in this country from FGM.  According to the Centers for Disease Control, there are approximately half-a-million women and girls in this country who have either already been subjected to such mutilation or are at risk of it in the future.  In their open letter, Messrs. Yerushalmi and Muise stated that:

“We can find no basis for believing that a federal statute or a state law designed to protect young girls from having their genitalia involuntarily and permanently disfigured would be considered unconstitutional or in violation of Religious Freedom Restoration Act (RFRA) or any state law counterpart to RFRA.  That is especially true when, in addition to the life-long denial of sexual pleasure such a procedure imposes, the short- and long-term medical problems frequently associated with it are factored in.”

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