Yoder and FGM

[Rick Duncan]

Andy: Why should we think that the compelling interest
concerning FGM is to protect the girl's interest in
future sexual pleasure? Why wouldn't the compelling
interest be in protecting a young girl's bodily
integrity concerning a procedure that involves painful
mutilation? It seems to me that Yoder and FMG have
nothing in common with respect to the state interests
involved.

If the Amish practiced some kind of lobotomy on their
children to prevent unAmish thoughts from being
processed by the brain, you would have a similar case.
And no doubt the Court would find a compelling
interest in protecting children from the physical harm
of Amish lobotomies!

Cheers, Rick Duncan

--- Andrew Koppelman <akoppelman at NORTHWESTERN.EDU>
wrote:
> 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?
>
>
> ________________________________________
>
> 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
> ________________________________________


=====
"Do you not think an angel rides in the whirlwind and directs the storm."
    --President George W. Bush (quoting John Page)

"When the Round Table is broken every man must follow Galahad or Mordred; middle things are gone."  -C.S. Lewis

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