Apparently, a law outlawing the practice of Female Genital Mutilation has been ruled unconstitutional according to a Detroit judge. He said that Congress overstepped its authority when they passed the law. I think this is taking religious liberty a little too far. I’m not a fan of circumcision, but at least you can point to some medical benefits from that. What do you think?
The ruling has nothing to do with “religious liberty”, it has to do with the enumerated powers of Congress.
I think both male and female circumcision should be illegal.
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The only way to do it would be by state law, if this ruling holds up (which I think it will).
Good. It’s going to take an uncomfortable national conversation on FGM to finally end MGM too. Let’s go.
With the disclaimer that I have NOT yet read the actual decision, just the article linked to above.
If the article’s summary is accurate, I AGREE with the Judge’s decision on the grounds enumerated.
Obviously, I think FGM is abhorrent, but this must be dealt with State by State, it is out of Congress’s purview, with the exception of the District of Columbia, and other areas under exclusive Federal control.
Link to the decision of the court.
Having had a chance to purview the actual Opinion of the Court, I find it to be well written and right on the mark.
The statute falls on two separate grounds:
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The “Necessary and Proper” clause: Congress relied on a Treaty as the basis for the statute, the International Covenant on Political and Civil Rights, which the United States ratified in 1992. The Judge found that the statute has no rational basis in the Treaty and thus cannot be promulgated under the Necessary and Proper clause. I agree with the Judge’s assessment on this.
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The Commerce clause. The Judge found that the activity of FGM does not constitute or effect interstate commerce and in fact is not commerce at all. The Judge characterized it as being assault against the girls and the activity does not constitute health care. Again, the Judge is correct.
The Judge goes on to point out that 27 States have made the practice illegal and nothing is stopping the rest from doing so. Even for States where it is not illegal, he indicated that the practice could still be prosecuted under ordinary child abuse or child endangerment laws.
All in all, I support the ruling of the court and the opinion behind it.
I cannot explain why, but I think law could be constitutional.
I agree with Judge Bernard Friedman who ruled America’s female genital mutilation law unconstitutional. It’s certainly NOT because I agree with the practice. But Congress does not have the constitutional authority to regulate it either. The 10th Amendment makes it clear that every power not specifically designated to the federal government in the Constitution is reserved for the states or the people. The hypocritical thing here though is that this same judge overturned Michigan’s same sex marriage ban in 2014, which he did not have the authority to do as a federal judge because marriage also would be one of those matters left up to the states or to the people if we actually still governed ourselves by the Constitution rather than judicial decree.
If it is constitutionally protected to cut males without their consent based on religious freedom, you will have a hard time arguing that FGM shouldn’t be afforded the same protection.
That’s not what this case is about. It’s not about whether FGM is constitutional or not - it is, but that’s not what the Court is talking about - and religious freedom has absolutely nothing to do with it.
The Court decided that Congress doesn’t have the constitutional power to ban it, because that’s not an enumerated power of the Federal Government. It’s a matter of state law.
I understand. My comment was related to a hypothetical - that if anyone argues that cutting males is protected by the 1A, they’d have a hard time arguing that FGM isn’t.
That is true.
