Yoder and FGM

[Andrew Koppelman]

I'm getting ready to teach Wisconsin v. Yoder, and the following reflection
has occurred to me (inspired, in part, by Brian Barry's fascinating recent
book, Culture and Equality (especially pp. 221-25).

Burger's opinion in Yoder suggests that the only state interest in
education has to do with preparing children for citizenship, understood
very modestly as the capacity to stay out of jail and off the welfare
rolls.  Since the Amish could deliver that without sending their children
to high school, the state's interest in enforcing its truancy laws was not
compelling.  Some writers have criticized Yoder on the basis of a more
robust conception of citizenship, involving informed participation in
politics, and argued that the children in Yoder are handicapped from
participating in this way.

There are, however, cases in which the state intervenes in the upbringing
of children for reasons that have nothing to do with any civic
obligation.  The most striking example I can think of is the prohibition,
in the US and many other countries, of ritual female genital mutilation
(FGM).  Although FGM is often practiced upon female children for religious
reasons, it is generally taken for granted -- is there anyone on this list
who wants to argue the point? -- that the state has a compelling interest
in preventing the sexual mutilation of girls.

I'd suggest that, on either Burger's rationale or a broader citizenship
rationale, this prohibition can't be defended.  A person can function as a
citizenship perfectly competently even if that person is incapable of
sexual pleasure.  Whatever sexual pleasure is good for, this isn't it.

On the basis of what reasoning would we conclude that the state has a
compelling interest in ensuring that children grow up to be capable of
sexual pleasure, but not that they grow up to be capable of appreciating
the literary and scientific achievements of the culture in which they live
(which is one of the principal aims of a high school education)?  Is sex
more important than Shakespeare?  Put another way, does Yoder mean that a
state violates the Constitution when it concludes that Shakespeare is at
least as important as sex?  What reasoning could compel that conclusion?


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Andrew Koppelman
Associate Professor of Law and Political Science
Northwestern University School of Law
357 East Chicago Avenue
Chicago, IL  60611-3069
(312) 503-8431
mailto:akoppelman at northwestern.edu
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