English court upholds circumcision double-standard

Article here. Excerpt:

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Mr Hayes points to the recognition, both by Wall J, as he then was, and by the Court of Appeal in Re J (Specific Issue Orders: Muslim Upbringing and Circumcision) [1999] 2 FLR 678, 693, on appeal Re J (Specific Issue Orders: Child’s Religious Upbringing and Circumcision) [2000] 1 FLR 571, 573, 576, that male circumcision does involve harm, or the risk of harm. Given the comparison between what is involved in male circumcision and FGM WHO Type IV, to dispute that the more invasive procedure involves the significant harm involved in the less invasive procedure would seem almost irrational. In my judgment, if FGM Type IV amounts to significant harm, as in my judgment it does, then the same must be so of male circumcision...

Moving on to the second limb of the statutory test, Mr Hayes submits that in assessing whether the infliction of any form of FGM can ever be an aspect of “reasonable” parenting, it is vital to bear in mind that FGM involves physical harm which, it is common ground, has (except in the very narrow circumstances defined in section 1(2)(a) of the Female Genital Mutilation Act 2003, not relevant in a case such as this) no medical justification and confers no health benefits.

The fact that it may be a “cultural” practice does not make FGM reasonable; indeed, the proposition is specifically negatived by section 1(5) of the 2003 Act. And, as I have already pointed out, FGM has no religious justification. So, he submits, it can never be reasonable parenting to inflict any form of FGM on a child. I agree.

It is at this point in the analysis, as it seems to me, that the clear distinction between FGM and male circumcision appears. Whereas it can never be reasonable parenting to inflict any form of FGM on a child, the position is quite different with male circumcision. Society and the law, including family law, are prepared to tolerate non-therapeutic male circumcision performed for religious or even for purely cultural or conventional reasons, while no longer being willing to tolerate FGM in any of its forms.

It’s not completely clear to me exactly what the judge means by stating that female genital mutilation “has no basis in any religion.” As I understand it, some forms of female genital mutilation are indeed endorsed as religiously necessary or at least advisable by some Muslim religious scholars. I take it the judge must be concluding that either majority Islamic belief doesn’t support female genital mutilation, or “true” or “proper” Islamic belief doesn’t support it — not a conclusion that American judges would be free to draw, I think, given the First Amendment, but presumably one that English judges are allowed to draw. (Under American law, it’s not for courts to decide whether a religious claim represents the majority view of a religious group, or the proper understanding of its scriptures, though courts can of course reject religious exemption claims on other grounds, such as that the exemption would unavoidably inflict substantial harm on third parties.)

In any event, an interesting decision that I thought I’d pass along — read the whole thing if you want more than just these excerpts. Thanks to professor Howard Friedman (Religion Clause).