Examining religion and public life
Rites v. Rights: Exemptions for Religious Circumcision?
Paper presentations at the American Political Science Association, September 2013, Chicago, IL and
Law and Society Association annual meeting, May 2014, Minneapolis, MN
“We want our daughter circumcised,” said the parents to their pediatrician. When asked why, the parents expressed sincere religious beliefs. Constitutionally, should the parents be granted a religious exemption from the law passed by the US Congress in 1996 that forbids female circumcision? If so, on what grounds? If not, why not? Would the same answers be applicable if the parents were religiously motivated to have their son circumcised?
In this survey of legal exemptions of religious rites, I will present 32 types of genital-altering religious rituals used to conduct irreversible physical surgeries on female and male children. I will then focus on the contemporary attempts to regulate ritual circumcision on males and counter attempts to legally exempt the rite. I will also examine the political rhetoric of “mutilation” versus “circumcision” when comparing the incongruence in laws that protect female children but not male children.
I begin by exploring a sampling of cases in the United States that have justified legal restrictions on religious practices, such as polygamy, child preaching, and parents using faith-based reasons for refusing medical interventions for their children. I will use these cases to articulate eight legal and ethical principles: child welfare, no harm to others, substantial harm, direct consent, self-determination, no preference in religion, safety, and equal protection. I use these principles to develop what I call the God told me so doctrine and then apply it to the current politics of ritual circumcision. The primary question that drives my analysis is whether religious accommodations should be granted if the religious practice in question infringes on the rights of children. Put simply, if God tells me to circumcise my child, will the state stop me?
Table 1. Genital-Altering Religious Rites (GARR) on Children
6–7. Partial or total removal of clitoris
8. Removal of prepuce around clitoris
9–12. Partial or total removal of clitoris and labia, with or without excision of the labia majora
13. Narrowing of vaginal opening through the creation of a covering seal.
14–16. Seal formed by cutting and repositioning inner or outer labia, with or without removal of clitoris
20. Forced foreskin separating without amputation
21. Partial with atrophied bib
22–25. Partial removal of foreskin, with or without direct orogenital suction or with or without retaining frenulum and frenular nerves, with little or no sliding
26. Amputation of all foreskin beyond corona with zero sliding and all frenula nerves lost
27. Meatotomy (slitting)
28. Penis subincision (flatting)
29. Infibulation (remove and sew)
31. Orchiectomy (castration of testicles)32. Penectomy (penis removal).
In order to address the dilemma of cultural variations in perceived and real harm, I offer the following typology of 32 types of genital-altering rituals used on females and males. Historically speaking, the people in the following religious groups were theologically justified to enact these rites as accepted cultural norms. Yet, those outside those groups may find the rituals to be barbaric. What may seem bizarre to one group may be perfectly normal to another. I apologize in advance for the graphic nature of the following information.
According to the World Health Organization (WHO), there are four types of genital-altering rituals used on females: clitoridectomy, excision, infibulation, and other. “Clitoridectomy: partial or total removal of the clitoris (a small, sensitive and erectile part of the female genitals) and, in very rare cases, only the prepuce (the fold of skin surrounding the clitoris). Excision: partial or total removal of the clitoris and the labia minora, with or without excision of the labia majora (the labia are “the lips” that surround the vagina). Infibulation: narrowing of the vaginal opening through the creation of a covering seal. The seal is formed by cutting and repositioning the inner or outer labia, with or without removal of the clitoris. Other: all other harmful procedures to the female genitalia for nonmedical purposes, for example, pricking, piercing, incising, scraping and cauterizing (burning) the genital area.”
WHO estimates that 140 million girls and women worldwide have had one of these procedures, mostly occurring between infancy and 15 years of age. In Islam, there are competing religious views on whether these practices are obligatory, permissible, or forbidden. Although primarily practiced by Muslims in East and West Africa, other Islamic states either never adopted the custom or have enacted legal bans against these actions, as seen in the Far East, Central Asia, and North Africa.
The World Health Organization estimates that 30 percent (1 billion) of the world’s males age 15 years and older have been circumcised. Meanwhile, hospital-conducted male circumcisions in the United States have declined by 10 percent in the last three decades, from 64.5 percent to a low of 55 percent in 2007. The cultural norms have been changing rapidly, possibly suggesting a return to the nineteenth-century norm where relatively few males were circumcised in the United States.
I have developed at least three ways to classify religious-based alterations to male genitalia: corporeal emasculation, penis disfiguring, and foreskin removal. Corporeal emasculation on boys involved either penectomy, the removal of the penis, or orchiectomy/castration, the removal of one or both testicles. These were practiced by various religious sects living in Greece, China, Persia, Egypt, India, Europe, and so on. In southern and central Africa, the Khoikhoi tribe (known by Dutch colonists as the Hottentot tribe) has practiced the removal of only one testicle of boys, as an expression of the theological petition to prevent the birth of twins. In Europe, some boys were subject to corporeal emasculation in order to become Castrati vocalists in Christian church choirs. Their testicles, and sometimes their penises, were removed to ensure a stunted larynx, which preserved the boys’ prepubescent vocal range after puberty. Other boys played distinct roles as a result of their corporeal emasculation. Eunuchs in some Christian sects and Hijras in Hindu and Muslims communities were either associated negatively with superstitions and curses or were treated positively for their performance of rituals at birth and marriage ceremonies.
Penis disfiguration occurred when practicing the ritual of penis flattening, bloodletting, piercing, or hollowing. Aborigines in Australia and New Guinea have created rituals for cutting the underside of the penis from the head to the base to create a flattening effect, also known as subincision or ariltha. The Olmec and Maya people practiced bloodletting, which included cutting or piercing the penis, then burning the blood as part of a sacrificial ritual. Other rites included penis hollowing, which involved “drawing a cord, a stingray spine, pointed bone, or maguey thorn through the penis.”
The ritual of foreskin removal has at least four categories: partial removal or complete removal of the foreskin, and the suction or consumption of circumcision blood. The Massai and Kikiuyu tribes in Africa have practiced partial circumcision, intentionally leaving the lower part of the foreskin as an atrophied bib. Alternatively, Muslims and Jews have religious laws instructing that the entire foreskin be removed. Islamic sects draw upon one of six schools of law, only one of which, Shafiite, considers khitan (full circumcision) to be obligatory, whereas the others merely recommend the practice. Although there are variations in Judaism, full circumcision is generally considered obligatory as an expression of Abraham’s covenant with God. On the eighth day after the male child’s birth, a Mohel conducts a circumcision ceremony known as the brit milah, or in Yiddish, “bris.” Some ultra-Orthodox Jewish communities also perform metzitzah b'peh, where the Mohel “places his mouth directly on the newly circumcised penis and sucks blood away from the circumcision wound (direct orogential suction).” In addition to blood suction rituals, indigenous tribes in Nicaragua have mixed the blood from the circumcised boy with maize and consumed it as part of harvest and fertility ceremonies.
 World Health Organization (2013) Female Genital Mutilation, February 2013. Accessed at http://www.who.int/mediacentre/factsheets/fs241/en/index.html.
 Id. In a similar study, UNICEF estimated that 125 million females in 29 countries have undergone FGM/Cutting. United Nations Children’s Fund (2013), Female Genital Mutilation/Cutting: A statistical overview and exploration of the dynamics of change. July 2013.
 Obiajulu Nnamuchi (2012) “‘Circumcision’ or ‘Mutilation’? Voluntary or Forced Excision? Extricating the Ethical and Legal Issues in Female Genital Ritual.” Journal of Law and Health, Vol. 25, No. 1, pp. 83–119; and Muhammad Munir (2013) Islamizing Custom or Customizing Islam: The Case of Female Genital Mutilation or Female Circumcision, Social Science Research Network, 25 June 2013, http://ssrn.com/abstract=2284730
 Id., Munir pp. 7-8 and S.A.H. Rizvi, et al. (1999) “Religious Circumcision: A Muslim View.” British Journal of Urology, International, 83, Suppl. 1, pp. 13-14. See also R.J. Cook, B.M. Dickents, and M.F. Fathalla (2002) “Female genital cutting (mutilation/circumcision): ethical and legal dimensions. International Journal of Gynecology and Obstetrics, Vol. 79, pp. 281-287.
 World Health Organization (2007) Male circumcision: global trends and determinants of prevalence, safety and acceptability, p. 7.
 Centers for Disease Control and Prevention (2013) Trends in Circumcision in the United States, 22 August 2013.
 Geoffrey P. Miller (2002) Circumcision: A Cultural-Legal Analysis. Virginia Journal of Social Policy and the Law, Vol. 9, pp. 498-585, 2002.
 Victor Cheney (2006) A Brief History of Castration, Second Edition. Bloomington, Indiana: AuthorHouse Press; and Rob Hardy (2002) “Castration: An Abbreviated History of Western Manhood.” American Journal of Psychiatry, Vol. 159, pp. 691-692.
 Ross Povenmire (1999) “Do Parents Have the Legal Authority to Consent to the Surgical Amputation of Normal, Healthy Tissue from the Infant Children?: the Practice of Circumcision in the United States.” American University Journal of Gender and Social Policy and Law, Vol. 7, pp. 166, quoting Rosemary Romberg (1985) Circumcision: The Painful Dilemma, note 15, pp. 2-3.
 Roger Freitas (2003) “The Eroticism of Emasculation: Confronting the Baroque Body of the Castrato.” Journal of Musicology, Vol. 20, No 2, Spring 2003, pp. 196–249.
 Daniel F. Caner (1997) “The Practice and Prohibition of Self-Castration in Early Christianity.” Vigiliae Christianae, Vol. 51, No. 4, November 1997, pp. 396-415.
 Preeti Sharma (2012) “Historical Background and Legal Status of Third Gender in Indian Society.” International Journal of Research in Economics and Social Sciences, Vol. 2, No. 12, December 2012. Serena Nanda (1990) Neither Man Nor Woman: the Hijras of India. Belmont, California: Wadsworth Publishing Company.
 William E. Brigman (1985) Circumcision as Child Abuse: The Legal and Constitutional Issues, Journal of Family Law, Vol. 23, No. 3, 1984–1985, pp. 338. Militaries have also mutilated their opponents genitals not as a religious rite, these acts can be classified as a violation of the victim’s religion. Eric Stener Carlson (1997) “Sexual Assault on Men in War.” The Lancet, Vol. 349, Issue 9045.
 Rosemary Joyce, et al. (1986) “Olmec Bloodletting: An Iconographic Study” in Virginia M. Fields, ed., Sixth Palenque Roundtable. Norman, Oklahoma: University of Oklahoma Press.
 Michael D. Coe (1977) “Olmec and Maya: A Study in Relationships” in R.E.W. Adams, ed., The Origins of Maya Civilization, Albuquerque: University of New Mexico Press, pp. 183-196.
 Id., Provenmire, pp. 116 and Id., Romberg, note 15, at 2-3.
 Id., Rizvi, et al.
 “Religious Circumcision: a Jewish View” in British Journal of Urology, International, 83, Suppl. 1, 17-21; and J. Goodman (1999) “Jewish Circumcision: an alternative view.” BJU International, 93, Suppl. 22-27.
 Hebrew Bible, Genesis 17-27.
 Center for Disease Control and Prevention (2012) “Neonatal Herpes Simplex Virus Infection Following Jewish Ritual Circumcisions that Included Direct Orogenital Suction—New York City, 2000-2001” in Morbidity and Mortality Weekly Report, Vol. 61, No. 22, 8 June 2012, p. 405.
 W.D. Dunsmuir and E.M. Gordon (1999) “The History of Circumcision.” British Journal of Urology International, Vol. 93, Suppl. 1-12, p. 2.
Nathan C. Walker is the co-editor with Edwin J. Greenlee of Whose God Rules? Is the United States a Secular Nation or a Theolegal Democracy? with foreword by Tony Blair (Palgrave Macmillan 2011). He served as a Resident Fellow at Harvard Divinity School from 2012-2013 and is currently a doctoral candidate in law, education, and religion at Columbia University.