The federal government's prosecution of several defendants for female genital mutilation (FGM) of underage girls and its dismissal by a federal district court last month raise important constitutional issues concerning religious liberty, federalism, and Congress's treaty power.
The district court decided the case, U.S. v. Nagarwala, exclusively on federalism grounds. Without reaching the religious liberty issues, the court ruled that the federal ban on female genital mutilation was beyond the constitutional power of Congress to enact. In particular, the court made two significant rulings about the limits of federal legislative authority.
First, the court ruled, entering into a treaty (in this case, a treaty protecting civil rights) with another nation does not create new domestic federal legislative power. As the court explained:
FGM is “local criminal activity” which, in keeping with longstanding tradition and our federal system of government, is for the states to regulate, not Congress. … Therefore, even accepting the government’s contention that the criminal punishment of FGM is rationally related to [a treaty], federalism concerns and the Supreme Court’s statements regarding state sovereignty in the area of punishing crime – and the federal government’s lack of a general police power – prevent Congress from criminalizing FGM.
In other words, if Congress lacks authority to reach certain local criminal matters, it cannot create its own authority to do so by entering a treaty promising to ban such crimes. The federal government cannot generate its own legislative power.
Second, said the court, Congress does not have the power to ban criminal acts as such, including FGM. The federal government argued that the power of Congress to regulate interstate commerce authorized a ban on FGM. But after reviewing numerous decisions by the Supreme Court and other federal courts, the district court in Nagarwala disagreed. Those cases, the court explained, establish the rule that the federal government may regulate economic activity having a substantial effect on interstate commerce. But that rule, the district court held, did not save the federal statute here:
In the present case, the government has failed to show that FGM is a commercial activity … The government also contends that FGM is “an illegal form of healthcare,” and since Congress can regulate healthcare, it can regulate FGM. The comparison of FGM to healthcare is unsuitable. FGM is a form of physical assault, not anything approaching a healthcare service. The cases the government cites in this section of its brief dealt with abortion services and healthcare generally … which bear no resemblance to the crime of mutilating girls’ genitalia. FGM cannot, by any stretch of the imagination, be classified as an economic or commercial activity.
Of course, some may also consider abortion and sex change operations to be “a form of physical assault, not anything approaching a healthcare service”; meanwhile, practitioners and defenders of FGM may consider it a surgical practice no different in kind than elective abortion or elective cosmetic surgery. This goes to the larger problem, discussed below, of identifying intrinsically wrongful acts, a problem the district court’s opinion does not address or resolve.
The district court noted that while Congress might well target those instances of FGM which are proven, on a case-by-case basis, to affect interstate commerce, Congress did not do so here: “There is no jurisdictional element in the FGM statute, which does not require any proof that the victims or the provider traveled in, or had any effect on, interstate commerce.”
This does not mean, of course, that anyone has a constitutional right to engage in FGM. As the district court said, states can (and many do) forbid the mutilation. “As despicable as this practice may be, it is essentially a criminal assault,” the district court explained, and thus properly a matter for the fifty states to deal with.
The Nagarwala prosecution originally received attention as a potential landmark religious liberty case, because FGM is done as a traditional religious practice for "Dawoodi Bohras, a sect of Shiite Islam concentrated in western India." It's not clear, however, that a conviction would have broken new ground in this area. After all, it is commonly understood that religious liberty does not extend to inflicting bodily harm on third persons, e.g., child sacrifice.
However, there is a larger issue lurking just below the surface: the ability of society to distinguish between malum in se and malum prohibitum. The first category includes those things that are bad in themselves (malum in se means "something wrong in itself") -- murder, mayhem, rape, etc. Then there are things which are not necessarily evil, but are deemed bad because they are forbidden (malum prohibitum means "something wrong because forbidden"), like driving on the left side of the road (illegal in the U.S., but not in the U.K.), or practicing medicine without a license (as opposed to malpractice, which would be malum in se).
When society has a consensus on what is bad in itself, it is easy to say that religious liberty (or other freedoms) must stop short of engaging in those practices, while more leeway may be given in cases where the act is not itself evil but merely outlawed (e.g., privately affixing markers on telephone poles to set up an eruv, a ceremonial Jewish enclosure). But when the societal consensus breaks down, division will arise over the ability to ban the practice. This is already happening with recreational drug use (intrinsically wrong or just a matter of debatable policy?) and may be beginning to happen with certain ritual practices that seem normal to some groups (like FGM) while deeply repugnant to others. As the sub-population that endorses the practice or similar practices grows in size, it will be politically more difficult and divisive to treat the practice as "evil in itself."
Moreover, as society becomes more accepting of the voluntary surgical removal of body parts, including genitals, in contexts such as sex change operations done in the name of “gender identity,” it becomes harder to condemn less drastic surgeries done in the name of religious or cultural practices, like FGM, as "evil in itself."
The government is reportedly pondering whether to appeal the district court's decision. This case is definitely one to watch.
Walter M. Weber is an attorney in the Washington, DC area who has practiced constitutional law for over thirty years. This article does not necessarily reflect the views of his employer.