Prophet of Profit? 12 ree Exercises? 18 e Price of Faith 26

Magazine of ligious Freedom Vol. 92, No. 4 ly/August 1997 The Tragedy of Female Genital 41Intilat OP. CIT.

T I Skewered! I do not expect a publication of Thomas Jefferson, would advocate Editors: Regarding "The End of the Seventh-day Adventist Church that judges interpret what the origi- Democracy" (March/April, page 4), to know everything about the nal intent might be in all cases

101117larence11111111111.1./ E. Hodges I'm hopelessly skewed leftward, Catholic faith, but I was surprised when he said, "I am not an advo- Chairman. Editorial Board but I hope I won't be skewered. that "Consenting Adults" showed cate for frequent changes in laws Clifford Goldstein JAMES ASHLEY SHEA such a complete lack of knowledge and constitutions, but laws and Editor Pasadena, California about what we believe. institutions must go hand in hand Loleta Thomas Bailey It is easy for your "Suzy" and with the progress of the human Associate Editor I suspect that you intended "George" to declare themselves mind. As that becomes more James A. Cavil to use the word "skewed" in both Catholic, but that does not mean developed, more enlightened as Copy Editor instances. Seeing the word they actually are. Every Catholic new discoveries are made, new Leo Ranzolin "skewered" used here is painful. knows that it is a sin to have lust truths discovered and manners and Robert S. Folkenberg for someone. Your article is decep- opinions change, with the change of A. C. McClure JOE DiPINTO, Representative B.B. Beach Wilmington, Delaware tive because it fails to state what circumstances, institutions must John Graz the Catholic Church actually teaches. advance also to keep pace with the Consulting Editors [Tell me about it!—Editor.] Lusting and promoting lust are times." Vernon Alger grave sins. The couple in your arti- Former chief justice John Karnik Doukmetzian Charles Eusey Chewed Out! cle is unquestionably living outside Marshall (1801-1835) described the Richard Fenn Your article "Consenting Adults" the Church. They used Liberty to U.S. Constitution as "... a constitu- Samuel Green Darrel Huenergardt (March/April) has nothing to do with promote their sexual cause, and tion, intended to endure for ages to Ted Jones the separation of church and state. they used the Catholic Church to do come, and consequently, to be Alan Reinach These moral issues come under the the same. Their beliefs may qualify adapted to the various crisis of Lewis Stout Mitchell A. Tyner rightful domain of civil law. them as self-excommunicated. human affairs." Adrian Westney, Jr. If a place such as the sex club GEORGE A. MORTON, Editor Retired Supreme Court justice Consultants referred to in this piece is a legal The Parish Visitor William J. Brennan gives perhaps Wintley A. Phipps business, its existence makes Monroe, New York the best refutation of the original U.S. Congress Liaison socially destructive behavior appear intent in an October 12, 1985, Jeffrey L. Dever Art Director common and thereby educates the Truth Matters speech at Georgetown University. minds of children and young adults It is hard to believe that well- He said, "There are those who find Emily Martin Kendall Designer that this is acceptable, normal meaning individuals like Richard legitimacy in fidelity to what they behavior. This is a matter for civil John Neuhaus, Charles Colson, and call 'the intentions of the Framers.' Juan R. Presto! Treasurer authorities. Pat Robertson are able to claim In its most doctrinaire incarnation, Your publication of this article with the utmost certainty that the this view demands that justices Liberty (ISSN 0024-2055) is pub- was in exceptionally bad taste and only laws which judges should discern exactly what the Framers lished bimonthly by the North American Division of the Seventh- needlessly puts you in conflict with strike down are those that clearly thought about the question under day Adventist Church, 12501 Old the Religious Right. Could you violate the original meaning of the consideration and simply follow Columbia Pike, Silver Spring, MD please stick to articles on church Constitution ("The End of that intention in resolving the case 20904-6600. Periodicals postage paid at Hagerstown, MD and state? Democracy?" March/April). This before them. POSTMASTER send changes of LAURENCE M. WOODHAMS has also been echoed as the doc- "It is a view that feigns self- address to Liberty, P.O. Box 1119, Hagerstown, MD 21741-1119. Owosso, Michigan trine of "original intent" by rejected effacing deference to the specific candidate for the Supreme Court judgment of those who forged our Printed by the Review and Herald Robert Bork and former U.S. attor- original social compact. But in Publishing Assn., 55 West Oak Ridge Drive, Hagerstown, MD ney general Edwin Meese. 21741-1119. Subscription price: It does not seem that one of the U.S. $6.95 per year. Single copy: U.S. $1.50. Price may vary where framers of the Constitution, national currencies differ. Vol. 92, No. 4, July/August 1997

2 LIBERTY JULY/AUGUST 1997 COVER PORTRAIT OF GIRL FROM SOMALIA BY BRADFORD BROWN truth it is little more than arrogance unconstitutional. Their proposed board could make a convincing Second, the existence of the cloaked as humility. It is arrogant solution is a clause limiting permis- argument that their rule fulfills a Illuminati. While the Illuminati of to pretend that from our vantage we sible materials only to those "spon- compelling government interest. Adam Weishaupt's time may no can gauge accurately the intent of sored by local businesses." DENA S. DAVIS, Professor longer exist, that does not mean the Framers on application of prin- However, this strategy clearly favors Cleveland-Marshall College of Law that they do not still live. They may ciple to specific, contemporary some religions over others, and is Cleveland, Ohio not be named as such, and they questions. All too often, sources of exactly the sort of "religious gerry- may be divided into a number of potential enlightenment such as mandering" the Supreme Court Better Late Than Never different sects, but the Illuminati do records of the ratification debates struck down in Larson v. Valente in Recently I read an article in the live. And that means however provide sparse or ambiguous evi- 1982. In Larson, the state of May/June 1979 Liberty about the much you and your writers may dence of the original intention. Minnesota made a distinction Illuminati, and I wanted to rectify a want and wish it otherwise, they are "Typically, all that can be gleaned between religious groups which thing or two written therein. still very pernicious, devious, and is that the Framers themselves did received half their revenues from First, about the group itself. dangerous. not agree about the application or their own membership, and those The Illuminati was not the first A CATHOLIC-AMERICAN CHRISTIAN meaning of particular constitutional that did not. The Court found that group to bear such a name as this. San Diego, California provisions, and hid their differences any law which favored one religion The first one(s) to be called "the in cloaks of generality. Indeed, it is (or type of religion) over another Enlightened Ones," as galling as it [Sorry. In 1979 I was a new far from clear whose intention is triggered strict scrutiny, and could will be for you to hear this, were the college grad backpacking around relevant—that of the drafters, the pass muster only if the state could Alumbrados in Spain in the six- Europe.—Editor.] congressional disputants, or the show that it was narrowly tailored teenth century. These pseudo-mys- ratifiers in the states?—or even to meet a compelling government tics gave rise to a similar move- A Beacon of Truth and Justice whether the idea of an original interest. The same reasoning ment in France in 1623: the I first discovered Liberty in a intention is a coherent way of think- would apply to Upshur County. In Illumines. These groups combined laundromat in Homer, Alaska. ing about a jointly drafted document this case, the law favors religious Gnosticism with the heretical ratio- Immediately, I was struck by the drawing its authority from a general organizations that are able to get nalism of the Enlightenment of the frank, brutal honesty of your publi- assent of the states. And apart support from local businesses. time. It was this which gave rise to cation and the broad scope of your from the problematic nature of the It is hard to imagine that the school the Illuminati. concern. I subscribed at once, and sources, our distance of two cen- over the years I have come to rely turies cannot but work as a prism on your magazine for a concept of refracting all we perceive." DECLARATION OF PRINCIPLES religion and government that was JOHN CLUBINE both foreign to my experience and Ontario, Canada attractive as it fulfilled my desires The God-given right of religious liberty is best exercised for truth and justice. The fact that Bibles in a Box when church and state are separate. your values are so obviously those The attempt of the school board Government is God's agency to protect individual rights and of Jesus Christ has only added to in Upshur County, West Virginia to conduct civil affairs; in exercising these responsibilities, offi- the allure. ("Help Yourselves," September/ cials are entitled to respect and cooperation. Your magazine has had a lot to October 1996), to allow the distri- Religious liberty entails freedom of conscience: to worship do with shaping my consciousness bution of Bibles in the public schools or not to worship; to profess, practice and promulgate religious and I am very grateful. Thank you. but to avoid the necessity of having beliefs or to change them. In exercising these rights, however, Rev. TOM BROWN to allow "offensive materials" such one must respect the equivalent rights of all others. Springfield, Missouri as Satanic literature to be distrib- Attempts to unite church and state are opposed to the inter- uted on an equal basis is patently ests of each, subversive of human rights and potentially perse- cuting in character; to oppose union, lawfully and honorably, is not only the citizen's duty but the essence of the Golden Rule—to Readers can E-Mail the editor on treat others as one wishes to be treated. CompuServe #74617,263.

LIBERTY JULY/AUGUST 1997 3 IAMBS & PENTAMETERS

HERE WE GO AGAIN: Since ratifi- according to the dictates of con- protective of religious freedom in lifestyle, which embrace political cation more than two centuries ago, science." That's a funny proposal order to make the next part, which activism and community service as the U.S. Constitution has withstood for a nation that for more than 200 forbids denial of "benefits on well as the commitment to sexual a myriad of attempts to adjust it. years has been an example to the account of religion," seem less radi- pleasure heightened by pain...." Of the more than 10,000 proposed world for religious freedom. What cal than it is. Indeed, one purpose The Match That Started My Fire "is amendments, only 33 got the it really says is "To secure the peo- of the Establishment Clause is to an exciting experimental comedy in required two thirds votes in both ple's right to acknowledge God protect people from having to pay which the joy of sexual pleasure is houses, and of those only 27 were even in a way that infringes upon taxes to support religious beliefs discovered and experienced by ratified by the requisite three the freedoms and conscience of they don't believe in. In other women in their childhood and early fourths states. And with good rea- others." The next line is that the words, the clause demands that teens. Climbing a rope, descending son. Though the U.S. Constitution right to pray or acknowledge reli- certain "benefits on account of reli- a slide, being stung by insects.... was unique in that it provided with- gious belief "on public property, gion" be denied. Just read James The film is a visual montage of in itself the mechanism for its own including schools, shall not be Madison's Memorial and images that evoke a world of 1960s change (prior to that, the common infringed." Remonstrance, which was nothing kitsch and nostalgia, with occasion- way to bring fundamental change to One slight problem: people are if not an attempt to deny churches al darker hints of taboo and trans- a government was to have a revolu- already allowed to pray on public "benefits" based on religion. gression." Hide and Seek "Sup tion)—the Founders, with Article V, property and, in various ways, If this latest proposed amend- Friedrich's brilliant new film mixes provided a process which assured acknowledge religious belief both on ment is passed, and no "benefits" documentary and fiction to create a that trivial changes wouldn't happen public property and in public schools are to be denied on account of reli- fascinating new portrait of lesbian easily or overnight. just as long as certain parameters gion, then Moonies, Scientologists, childhood...." Thank the Lord for that, espe- are met, parameters designed to and the few remaining Heaven's Though, according to American cially now as Congress is again protect the religious freedoms of Gate people (who haven't been jurisprudence, the Free Speech faced with another sorrowfully mis- those (especially school-age chil- whisked away on the UFO behind Clause of the First Amendment pro- leading proposal to undo dren) whose dictates of conscience Hale-Bopp) would be entitled to tax tects dirty movies, nothing in the Establishment Clause protections. don't allow them to acknowledge money for their religious endeavors. clause mandates that the govern- Misnamed the Religious religious "belief, heritage, or tradi- Fortunately, the Founders didn't ment fund them and the cries of Freedom Amendment, the proposal tion" in the manner of the majority. make the amendment process sim- "censorship" that civil libertarians (also known as the Ishtook If passed, this amendment could ple. With proposals like this, we spout when tax money for this filth Amendment) reads: "To secure the mean that if a fundamentalist Baptist should be thankful for their foresight. is removed (or threatened to be people's right to acknowledge God third-grade teacher wanted to spend removed) ring as hollow as do the according to the dictates of con- the morning, in the best of Protestant "TAX-FUNDED PEEP SHOW": A cries of "religious persecution" from science: The people's right to pray "beliefs, heritage, and tradition," rail- recent newsletter by the American Christians who don't get tax dollars or to recognize their religious ing against the evils of papal Rome Family Association exposed some for their sectarian endeavors. beliefs, heritage, or tradition on as the antichrist, Catholic students in of the latest government-subsidized public property, including schools, the class would have to endure it, or "art" when it listed the videos pro- TE ABSOLVO (SORT OF, ANY- shall not be infringed. The govern- leave. That's hardly what religious duced by a film company called WAY): Talk about an egregious vio- ment shall not require any person freedom is all about. Women Make Movies, Inc., which lation of religious liberty—prosecu- to join in prayer or other religious The last line is the most decep- has received $112,700 over the tors in Lane County, Oregon, secret- activity, initiate or designate school tive of all: linking a ban on govern- past three years from the National ly taped a prisoner's confession to a prayers, discriminate against reli- ment coercion of prayer to a denial Endowment for the Arts (the NEA). Roman Catholic priest (see Liberty, gion, or deny equal access to a of "equal access" of benefits based The following, excerpted from a Sept/Oct 1996). When knowledge benefit on account of religion." on religion, as if these two different Women Make Movies catalog, of the recording was made public, From start to finish, the whole functions of the Establishment shows our tax dollars at work: the ensuing brouhaha (taping a pen- premise, language, and intent of the Clause were inextricably linked. Blood Sister "centers on a diverse itent in confession to his priest! proposal is bogus. The bill states First, because the Establishment cross section of the lesbian S&M Come on, is this the 1990s in that its purpose is "To secure the Clause already bans government community ... The unblinking America or the 1930s in Germany?) people's right to acknowledge God coercion of prayer, the first part of closeup of their traditions and led to a suit filed by the priest and the line is just rhetoric to sound his archbishop, who asked that the

4 LIBERTY JULY/AUGUST 1997 IAMBS & PENTAMETERS

dren to honor their parents be under this religious law (1664): phrased, much less enforced? And "That no Jesuit or spiritual or eccle- what would be the punishment for siastical person (as they are violation? Stoning? And, maybe in termed), ordained by the authority George Orwell's 1984 "thought of the pope or see of Rome, shall crime" was verboten, but in real life henceforth at any time repair to, or who's going to enforce a law against come within this jurisdiction." coveting your neighbor's ox or ass Maryland also had a law (1633) (assuming they even have one). that "all acts of the Roman Catholic The first few commandments, religion ... be done as privately as meanwhile, are prohibitions on wor- may be, and that they instruct all shiping false gods. That sounds Roman Catholics to be silent upon just like what America needs: the all occasions of discourse concern- state making sure people have "no ing matters of religion." other gods" except the Lord. In North Carolina, an act passed tape be destroyed and that no fur- the nature of the Catholic sacra- And Sunday blue laws? Another in 1696 granted "full, free, and ther taping be done between prison- ment of confession, the court would grand idea. Of course, if we're undisturbed exercise" of con- ers and clergy. The matter was have struck a bolder stand for reli- going to enforce the Ten science, "Papists only excepted." complicated, however, because the gious freedom had it ordered the Commandments, then we would Georgia's Charter in 1732 granted prisoner, Conan Hale, requested that tape destroyed anyway. have Saturday, not Sunday, laws, full religious freedom to all settlers, the tape be preserved. Hale said because the fourth commandment "except Papists." that in his confession, he admitted HOW SOON WE FORGET: Talking reads to keep "the seventh day" Religious legislation. Why not? only to burglary, not to the three about the recent brouhaha over holy, which is Saturday, not Sunday. It worked so well in early America, counts of murder he was charged Judge Moore's Ten Commandment Then, too, in the idyllic and let's bring it back again. with, and thus he wanted the con- plaque on the courtroom wall, for- happy days of early America when fession to be used as evidence. mer presidential candidate Pat the Ten Commandments were the Moving? The case, Mockaitis v. Buchanan was quoted in Church foundation of "our early civil code Harcleroad, reached the ninth circuit and State magazine as saying: "Are and public life," enforcement of the Please notify us 4 weeks in advance court this year, which ruled that the Ten Commandments a religious fourth commandment often not though prison officials could no document? Of course they are.... only forbade work, but required longer tape confidential communica- They were a foundation of American church attendance. Imagine, forc- Name tions between prisoners and clergy law. From Sunday blue laws to anti- ing 280 million Americans to attend (because knowledge that a confes- blasphemy laws, to laws against church every Sunday. Address (new, if change of address) sion could become public would adultery, false witness, and murder, Buchanan, a Roman Catholic, deter penitents from confessing their they served as the basis upon which must have forgotten, too, that many City sins), the tape did not have to be we built much of our early civil code of these religious laws he longs for and public life. Who is to tell us were directed specifically against his destroyed because the prisoner him- State Zip self wanted the tape preserved and they cannot serve so again?" faith. Massachusetts Bay Colony, had, in fact, disclosed the contents Sure, why can't they? Just one for example, had on the books in To subscribe to Liberty check rate below slight problem: though the Ten 1661 the following religious statute: and fill in your name and address above. of the confession. Payment must accompany order. Commandments are, indeed, a God- "We do by these presents for our Though prison officials can no ❑ 1 year $6.95

INER given code of personal morality and heirs and successors grant, estab- longer secretly tape confidential Mail to: communication between clergy and conduct, with few exceptions—such lish and ordain that forever hereafter Liberty subscriptions, 55 West Oak Ridge M Y Drive, Hagerstown, Maryland 21740 penitents (imagine, having to go to as the prohibitions against murder there shall be liberty of conscience

AY PA court to get that point across; kind and stealing and, in some cases, allowed in the worship of God to all ATTACH LABEL HERE for address change or inquiry. If moving, list new address above.

M lying—they don't work too well Christians (except Papists)...." of reminds one of the "anti-lynch- Note: your subscription expiration date ing" laws of days past), considering when legislated. Or maybe he would like to live (issue, year) is given at upper right of label. TAAT

A Example: 0397L1 would end with the third

u How would a law requiring chil- (May/June) issue of 1997. n

LIBERTY JULY/AUGUST 1997 5 The Tragedy of Female Genital

"Today, .. . I have nothing left... except painful Mutilation memories filling the depths of my heart with sorrow, and bringing tears to my eyes....

Oh, Lord God, have mercy on me and mend my broken wings!"— KAHLIL GIBRAN By LOLETA Cries of outrage erupt around the world as CNN News, during the 1994 Population Conference THOMAS in Cairo, shows a female circumcision in progress. Three men are holding a 10-year-old girl spread- BAILEY eagle while a barber cuts away her genitalia with a razor. The four men are later arrested despite protests from Islamic fundamentalists.' Two years later photographer Stephanie Welsh wins the Pulitzer prize for her capture of 16-year- old Kenyan Seita Lengila examining herself (opposite page), after undergoing the procedure more accurately termed female genital mutilation (FGM).2 Although Seita is not facing the camera, we can imagine the pained face—streaked with tears at the sight of her bloody, mutilated body. The above events, along with numerous magazine and newspaper articles, have raised interna- tional awareness and censure, but female genital mutilation is still prevalent in 40 countries—includ- ing 26 in Africa—and in areas of Mexico, Peru, Brazil, Australia, and Russia.' In Asia, populations practicing FGM include Muslims in Indonesia, Malaysia, Bahrain, India, Pakistan, Oman, Yemen, and the United Arab Emirates.' The 5,000-year-old procedure' has subjected more than 100 million girls and women worldwide' to this atrocity, with 5,500 females undergoing mutilation daily.' Why does this horrific practice exist? What is the cultural, traditional, and religious significance of this custom? How are present-day societies dealing with it? Female genital mutilation, sometimes performed on newborns,' most frequently victimizes girls 3 to 10 years of age,' by one of three methods: (1) Sunna circumcision, (2) excision, or (3) infibu- lation. Sunna circumcision removes the prepuce and clitoris tip. Excision removes the clitoris and labia minora.'" Infibulation, the most invasive procedure, removes the clitoris, labia minora, and parts of the labia majora. The two sides of the vulva are then stitched over the vagina, rendering intercourse impossible." Removal of the clitoris causes the genital area to become insensitive to touch, making it almost impossible for a woman to experience orgasm. Though controversy exists Loleta Thomas Bailey is associate editor over whether a woman's sex drive is altered by this procedure, medical experts agree that it greatly of Liberty magazine. reduces a woman's ability to experience sexual pleasure.'

6 LIBERTY JULY/AUGUST 1997 PHOTOGRAPHY BY PULITZER PRIZE WINNER STEPHANIE WELSH F4 sexual intercourse is necessary to ensure that the vulva remains open. Often, after child- birth, divorce, or widowhood, reinfibulation isai performed.'° The medical risks of female genital mutila- tion include HIV and other blood-borne dis- eases contracted from unsterile instruments, infection, hemorrhaging, and septicemia (blood poisoning). Victims have difficulty passing urine and menstrual discharge, causing repeat- ed urinary tract infections and reproductive tract infections. In an infibulated girl excre- ment remains trapped in the bandages which bind her legs during her period of immobility.' After healing, an infibulated female takes approximately 10 to 15 minutes to urinate. Sexual intercourse is painful and penetration difficult. It can take up to three months to pen- etrate an infibulated woman completely.' Dermoid cysts, sometimes as large as grape- (Above) Seita Langila, 16, fruits, form from the scars of FGM.19 Increased lives in the Samburu district of northern Kenya. The first infertility and infant mortality abound. girl in the history of her Twenty-five percent of all infertility is a result village to go to school, she of female genital mutilation. The highest infant was taught there that female mortality rates in the world and the largest per- circumcision is painful and centage of children born brain-damaged dangerous. The night before her surgery Seita said, "I because of anoxia (lack of oxygen) during don't want to do this, but I delivery occur in countries where female geni- have to go through with it. tal mutilation is practiced." It is my culture and I cannot refuse. . . ." Seita's tribe A MATTER OF SURVIVAL forbids an uncircumcised girl to marry or have THE TRADITION The statistics for female genital mutilation in children. In preparation to In Africa and the Middle East, female genital Africa are staggering. In Somalia and Djibouti enter womanhood, her head mutilation is usually performed by a midwife (98 percent), the coastal areas of Ethiopia (90 is shaved by one of her (an elderly woman with no medical training). percent), northern Sudan (80 percent), Mali (75 father's six wives. Several women, often the girl's mother and percent)," and southern Egypt, infibulation is aunts, hold the child down and force her legs the predominate form of circumcision, making (Above right) Circumcised girls from surrounding apart while the midwife removes the genitalia, the death rate highest in these regions. villages paint Seita with without anesthetic or sterilization, using a A recent Kenyan study revealed that more ceremonial red ocher razor, knife, sharp stone, or cut glass." If infibu- than 80 percent of circumcised women have the night before her ritual. lation is done, the wound is sewn tightly, usual- experienced at least one medical complication." They will spend the night Other reports estimate that between 15 and 30 calming her fears. ly with vegetable thorns or catgut, and a match- stick or splinter of wood is inserted to preserve percent of all girls who undergo FGM die from a small opening for urination and menstrua- hemorrhaging or infections." tion." Dirt and ashes are thrown on the wound With such horrifying statistics it is impossi- to stop the bleeding. In parts of West Africa, ble for Westerners to understand how this pulverized animal feces are thrown into the practice has survived, let alone why it is still wound.' The girl's legs are then bound together permitted by the governments of these countries. from hip to ankle—sometimes for as long as 40 To comprehend why these cultures obses- days—allowing the wound to heal and scar. The sively practice FGM we must understand how incision is treated with palm oil, Vaseline, women are viewed in these societies. Although kerosene, or engine oil. female genital mutilation, which can be traced On her wedding night, a woman who has to the era of Egyptian pharaohs, cuts across reli- been infibulated is cut open by her husband, gious and cultural boundaries, most societies usually with a knife. Repeated and prolonged that practice FGM are Islamic. Geographically,

8 LIBERTY JULY/AUGUST 1997 Their

"Like a flower snatched from its stem and carried away by the current of a river, she walked in the miserable procession of the defeated. "— KAHLIL GIB RAN

• PHOTO BY ADRA ••• She went into labor at 9:00 a.m. Her water broke empty room and tied my arms behind my at 11:00 a.m. She is Somalian, unmarried, and only back. Two pairs of women grabbed my legs 15 years old. Infibulation was supposed to have and spread them wide open, holding them made sex and pregnancy impossible. very tight so I would not be able to move. When she arrived at the hospital at 4:00 p.m. the Then another lady got a razor blade and cut doctors looked in horror at the area between her legs. off my clitoris. I screamed and screamed. Never had they seen anything like this. What was it? This did not stop her. She continued slicing How did it open? The attending physician, scissors away my labia minora, at which point I lost in hand, began cutting the thick keloids. Her sister consciousness. Then she scraped raw the said that back in Somalia the midwives cut upward walls of my vulva and bound them together and sideways. Ridiculous, the doctors said. with thorns. She placed a stick between the Finally, the baby's head ripped through the raw walls of my vulva so that I would bare- Egyptian mother and daughter mother leaving a gigantic wound. It took an hour ly have sufficient means to expel my bodily wastes. and a half to repair the torn body. Though the young My legs were tied together to restrain me from any Somalian had courageously faced the ordeal, contin- movement. I was not allowed to urinate for two days. ued injections did not stop her screaming. My legs were tied together for 10 days, after which I The ordeal occurred in Washington, D.C., in the started to walk again with great difficulty and pain. summer of 1992. The girl has since returned to Somalia, Even though this was more than 20 years ago, I still resewn shut by American doctors, at her request.' feel the pain and trauma all over again when I start • te Egyptian-born Samia remembers: "I was 7 years to talk about it."' . old when I was excised. The women in my village • Six-year-old Egyptian Sumayah Hassan and her 4- 0 spoke of this operation as if their whole life had year-old sister Amira were circumcised in October stopped then and there. Their descriptions and the 1996. Sumayah survived; her sister did not. When subsequent feeling of inescapable doom triggered Amira died, her father, Mahmoud, called it God's wills such a panic in me that . . . I began to vomit. What The Egyptian Health Ministry, in 1996, banned Somali mother and happened that day is still excruciatingly burning in the practice of FGM in hospitals and by licensed daughter my flesh, and I often wake up in the middle of the health professionals. But some Egyptian doctors, night screaming for my mother."2 who believe there are religious grounds for the prac- • 4Pik A young girl from Somalia recalls: "Afterward, tice, are posing strong opposition to the govern- they bind your legs and feet together, up to your rear, ment's attempt to make the practice illegal. so you don't break the stitch at night. I vividly Although stronger measures against FGM began remember trying to pass urine. I had held it for three in 1994, a national survey done in 1996 revealed or four days, and I got a bladder infection, and my that 97 percent of married Egyptian women mother and everybody were trying to make me go to between the ages of 15 and 49 had been circum- the bathroom, and finally one night I fell out of bed cised. Among those women with daughters, 87 per- and crawled, still bound, under the dining room cent reported that one daughter had been or would table. And they found me in the morning with urine be mutilated.—Loleta Thomas Bailey running all over the place."' FOOTNOTES S On May 10, 1994, the Canadian Immigration 'Mary Ann French, "The Open Wound," Washington Post, and Refugee Board granted refugee status to Khadra Nov. 22, 1992, p. F 1 , (cited in Layli Miller Bashir, see footnote 47, page 25). Hassan Farah, a Somali mother, and her daughter, 'Sarni A. Aldeeb Abu-Sahlieh, "To Mutilate in the Name of based on the claim that the 10-year-old girl faced Jehovah or Allah: Legitimization of Male and Female female genital mutilation if forced to return to Circumcision," Medical Law 13 (1994): 578. Africa. In her plea for asylum, Farah told her own 'French (see note 1). story: "One afternoon a group of women, including 'Farah case in Convention Refugee Determination Decisions my mother and aunts, gathered at our house to cir- No. T93-12198, T93- 12199, T93-12197 (May 10,1994), pp. 9, 10. cumcise my cousin and me. They took me into an 'The Washington Post, Nov. 24, 1996, p. A33.

LIBERTY JULY/AUGUST 1997 9 (Right) Forbidden to cry or show emotion, Seita covers her eyes as the circumciser mutilates her at sunrise. Her clitoris and labia minora were cut away in one minute.

(Inset) An ordinary double-edged razor blade has replaced the traditional knife. On the circumciser's hand is goat fat, applied to help stop the flow of blood.

the Muslim world is immense, extending from ual desires through the removal of her sex West and North Africa, through the Middle East organs guarantees her husband that he will sat- and the southern part of the former Soviet isfy her.27 Women who have not undergone this Union, to Indonesia, comprising about 837 mil- procedure are viewed in some societies as lion Muslims." unclean and will be barred from entering wor- A strong belief in Islamic cultures holds that ship areas. These are women who, perceived as women are fundamentally sexual creatures and difficult, dangerous, and dirty, become social naturally promiscuous." Sexual suppression of outcasts with no hope of ever marrying. women is seen as imperative to ensure the vir- For women whose entire sense of self-worth ginity of girls prior to marriage and to prevent is in their role as wife and mother, marrying is a promiscuity during marriage." It is believed matter of social and economic survival, and that leaving a woman's clitoris intact will make female genital mutilation can be a prerequisite her oversexed and lead to uncontrollable sexu- for achieving that goal. Having a daughter who al demands on her husband before she eventu- is marriageable is essential for the mother's ally commits adultery. Curbing a woman's sex- future as well as the future of her daughter, and

10 LIBERTY JULY/AUGUST 1997 if a girl is not circumcised, she is deemed unfit oppression and brutalization." for this role in a society in which she has no Catherine L. Annas asserts, "The practice of other function." female genital mutilation, . . . a sexist suppres- sion of women in society, continues almost IN THE NAME OF ALLAH: RELIGION unquestioned because it is practiced primari- OR PATRIARCHAL POWER? ly upon women of color. It is overlooked Populations practicing female genital muti- because it is imposed upon children and not lation quickly cite religion as justification. But adults."

omen who have not undergone this procedure are viewed in some societies as unclean and will be barred from entering worship areas. These are women who, perceived as difficult, dangerous, and dirty, become social outcasts with no hope of ever marrying.

the truth seems to be rooted more in culture, QUID PRO Quo? tradition, and sexual control of women. For those who argue that female circumci- In Saudi Arabia, the center of Islam, and in sion is the counterpart to male circumcision, Iran, female genital mutilation is virtually experts disagree. "Cutting off the clitoris is unknown." The prophet Muhammad abhorred equivalent to cutting off much of the penis," the kind of sexual repression advocated in says Dr. Asha Mohamud, a Somali-born pedia- Christian monastic tradition, saying that "when trician in the Washington, D.C., area." a man has sex with a woman without foreplay it "There is no similarity between male circum- is an impermissible form of cruelty." And cision—a prophylactic measure recommended though Muhammad did not forbid the least for boys in almost every society—and female mutilating form of circumcision, he did not cir- circumcision, the goal of which is to diminish, if cumcise any of his four daughters.3° not suppress, sexual desire in women. The erot- Further, since female genital mutilation has ic function of an excised woman is destroyed been traced to the northern region of Egypt sur- forever because there is no surgical technique rounding the Nile River (which predates Islam), that will ever repair the mutilation," insists Sami this suggests pharaonic rather than Islamic roots.' Abu-Sahlieh." The equivalent procedure on Among Muslim populations religious schol- men would be a penisectomy that would excise ars concede that the Koran makes no mention most of the penis, rendering orgasm and sexual of FGM," and no established religion in the pleasure impossible." world requires, or even suggests, that this proce- The Minority Health Improvement Act of dure has a true religious significance. 1994 notes that the medical value in male cir- Nevertheless, local religious leaders in these cul- cumcision is that "the foreskin may retain harm- tures use religion as a pretext to perpetuate ful germs and bacteria." It also states that "cir- female genital mutilation generationally.33 cumcised women experience shock, a lifetime of Barbara Reynolds, quoting Egyptian scholar infections, bleeding, infertility, and severe pain and physician Nawal El Saadawi, writes: "FGM during sexual intercourse and childbirth:' There is patriarchal, related to slavery, and designed to are no after-effects of male circumcision and no maintain polygamy for men and monogamy for medical reason to keep the foreskin intact." women." One could also argue that if female circum- Legal expert Lori Ann Larson says, "It is the cision is assumed to control and subjugate exercise of patriarchal power in the name of women sexually, therefore leading to a more culture which allows those in power to with- moral society, why then is male circumcision hold fundamental human rights in the guise of not performed to the same degree to control tradition. FGM is a systematic method of male promiscuity and ensure male fidelity? (continued on page 22)

LIBERTY JULY/AUGUST 1997 11 he pain for Norma Smith of Dallas, Texas, was acute. Her husband was dying of a liver dis- ease, and the doctors weren't able to help. But she found hope in God and in televange- list Robert Tilton, who in solicitation letters promised that if she donated money, he'd person- ally pray for her husband and that he would recov- er. Only one problem: Norma Smith kept on receiving solicitation letters from Tilton promising her husband's recovery—after he had died! She sued, saying that she had been defrauded by the wealthy evangelist. By She wasn't alone. Hundreds of other former STEPHEN followers of the Texas preacher have filed suits PHILLIPS against Tilton, claiming that he defrauded them with promises of miracle medical cures and financial prosperity if they sent in prayer requests and—of course—money. ProphetThe Evangelist of P R 0 FIT? Robert Tilton These cases all raise interesting church-state (also known as the "name-it-and-claim-it" questions. Can a promise of spiritual blessing gospel) to those who would "seed" their faith by Claimed He Was be grounds for fraud when the blessing never giving liberally to his ministry. Tilton assured materializes? What if the promise is made by an adherents that he would personally pray over a Prophet. artful con artist using religion to earn a fast each request, and—claiming to be a prophet— buck? Does the state have a duty to protect he could guarantee a positive outcome.' Ex followers Say unwary believers from religious fraud? Can a Tilton's You Shall Eat the Riches of the minister be sued for misrepresenting God? Gentiles, published in 1990, assured followers He's a Fraud. All these questions and more were tackled in that many temporal blessings from God were the numerous legal cases surrounding Texas available to those who met certain require- What's a Court evangelist Robert Tilton. The only problem: ments, including a "vow of faith" in which the many might not like the answers. believer promised before the Lord to send to Do? Tilton's ministry money, amounts from $10 to ealth and Wealth $1,000. The more you sowed, Tilton promised, 4✓ Converted in the 1960s, Robert Tilton start- the more you would reap. Tilton often told ed his own church in 1976 and first went on anecdotal stories of individuals who had television in the mid-1980s. With his first wife, received the promised blessings. Pat and Jim, Marte, he built the Word of Faith World for example, said, "Since we made that $1,000 Outreach Center, Inc. (in Carrollton, Texas), vow, God has met our every need." Tilton also into a multi-million-dollar operation.' At one assured his followers that their contributions point his church membership numbered paid the television expenses for ministering to Stephen Phillips is a around 10,000, his television program appeared "the hurting multitudes" and to support needy Ph.D. student at the on stations around the globe, and USA Today orphanages.' J. M. Dawson Institute touted Tilton as the fastest-growing force in The methods worked, at least financially. for Church-State Studies American TV evangelism.' Robert Tilton Ministries' annual income was at Baylor University in Tilton's popularity stemmed from, among estimated at more than $80 million, and his Waco, Texas. other things, his promises of healing and wealth salary at least $400,000. Among God's temporal

12 LIBERTY JULY/AUGUST 1997 blessings were Tilton's ministry-owned lavish Tilton responded to Prime Time Live's allega- houses and expensive cars. Tilton's board, tions by inviting government agencies to review composed of Robert, his wife, and their secre- his records. Several federal agencies took up his tary, decided where the funds were to go. offer, but failed to find evidence of criminal Though he claimed to live a frugal existence, activity. he actually lived in high style among the charis- matic jet set. he Heavy Hand of Dan Morales qBut Tilton's legal problems were just begin- itilton Under Attack ning. Texas attorney general Dan Morales, In the early 1990s accusations began to be rather than accept Tilton's invitation to review raised against Tilton—that he was manipulat- church records, requested a broad range of ing followers for personal gain, and that he was documents in pursuit of an investigation under a con artist who pocketed tax-free contribu- the Texas Consumer Protection and Deceptive tions rather than using them for the ministries Trade Practices Acts. To complicate matters, he claimed to support. Following the "fall from Morales released the list of documents he grace" of TV evangelists Jimmy Swaggart and required to the press, which made hay over Jim Bakker, the accusations seemed serious another supposedly corrupt TV evangelist. enough to prompt an investigation by ABC The church refused to surrender the docu- news program Prime Time Live. On November ments Morales demanded, though it would 21, 1991, in "Televangelism," ABC leveled dev- make records available on a discretionary astating charges against three TV evangelists basis.' W. V. Grant, Larry Lea, and Robert Tilton. When the church threatened to file for an Diane Sawyer hosted the program, alleging that injunction in federal court to stall Morales's each of the televangelists manipulated followers actions, Morales filed a petition in quo warran- into giving millions every year and used those to in the probate court of Travis County, Texas, funds in ways other than that promised to con- intended to force Tilton to show why his Word tributors.' of Faith World Outreach Center deserved non- Much of ABC's research was derived from profit status. Among other things, Morales Ole Anthony, who heads up the Dallas-based asked for "a permanent injunction ordering Trinity Foundation, Inc., a self-described defendant to produce records as requested by watchdog of "the business of evangelism:' With the attorney general, for forfeiture of defen- Anthony's assistance, ABC showed that Tilton's dant's charter and dissolution of the corpora- ministry focused around a slick marketing and tion, and for appointment of a receiver to take direct-mail company that handled Tilton's possession of the affairs of the defendant, to mail. The key to success, company representa- rehabilitate, to reorganize, conserve, or liqui- tives said, was continually getting new names to date the affairs of the corporation, as the case keep soliciting funds and never saying exactly may be." If successful, this move would have to which ministry a contribution would go, all placed control of a church in the hands of the to avoid IRS scrutiny.' state of Texas. Word of Faith, in response, filed Furthermore, ABC alleged that Tilton and suit in federal court for an injunction against some of his college buddies, prior to his "con- Morales and what he was trying to get a state version," had planned "running preacher scams court to do to the ministry.' to get rich." ABC also implied that Tilton had In Word of Faith World Outreach Center received money to start his ministry from Church, Inc., v. Morales, the church argued that Herman Beebe, who had alleged ties to orga- the First Amendment shielded it from the Texas nized crime. ABC interviewed several individu- attorney general's scrutiny. The federal court als involved with Tilton's ministry, all of whom agreed, and immediately issued a temporary stated that they were instructed to get money restraining order on state court proceedings. It from callers. ABC also maintained that the also, in March 1992, issued an order that needy orphanages were nonexistent. And ABC stopped the attorney general from obtaining claimed Tilton never saw most of the prayer court records or prosecuting quo warranto pro- requests: "The money probably made it to ceedings. The federal court also rejected Tilton; the prayers went in the trash." This pub- Morales's claim that it should abstain from con- licity spawned a long series of legal problems for sidering the case until proceedings had been the evangelist? exhausted in state court.'

LIBERTY JULY/AUGUST 1997 13 In its ruling the federal court determined In response, Tilton's church unilaterally that the material in demand was protected by revoked its nonprofit charter, theoretically the First Amendment, that the quo warranto removing it from state scrutiny and out of the proceedings were intended to prevent the clutches of Dan Morales. church from exercising its constitutional rights, and that Morales acted in bad faith (shown by he Court Battles Continue his antics with the press)—all of which pro- Tilton, meanwhile, sued ABC and Ole duced the exceptional circumstances that justi- Anthony, president of the Trinity Foundation, fied federal intervention. The court also deter- for libel; additionally, he sued ABC, Ole mined that Tilton's church was not engaged in Anthony, the Dallas Morning News, and WFAA- commercial trade and therefore not subject to TV (Dallas), alleging they had conspired to the Deceptive Trade Practices Act. It also ruled damage the church's reputation and diminish that Morales's requests for many documents— contributions. such as a list of all contributors and solicitation The conspiracy suit, Tilton v. Richardson, was policies—were "clearly unconstitutional." In an reviewed by the Tenth Circuit Court of Appeals, unambiguous pronouncement of the limits of where Tilton—arguing under 42 U.S.C.A. government jurisdiction over religion, the court Section 1985(3), often used to recover civil stated that the state had no constitutional rights damages—claimed that the private actors authority to know a person's membership in or named in his suit, such as ABC news and support of any church; no constitutional WFAA-TV, had conspired to destroy his min- authority to know what a person believes, how istry. He argued, too, that they had violated his he or she practices religion, or how he or she civil rights because their actions were not mere- supports religious activities; nor to probe into ly private, but that they also sought to influence the internal operations of a church without lim- state action. itation or compelling purpose." The appeals court disagreed, saying that the The court also objected to attempts under defendants' actions were private (there were no the Texas Miscellaneous Corporation Laws Act government officials involved) and therefore to close down Word of Faith: "It is absurd for not encompassed within the statute." Tilton the attorney general to think that it can deprive appealed to the U.S. Supreme Court, which on the plaintiffs of their rights to freely worship as February 18, 1997, refused to hear it, leaving the a group altogether as punishment for the plain- lower court ruling in place. tiffs' initial assertion of their First Amendment Meanwhile, several contributors sued to rights to not produce constitutionally protected recover damages from Tilton, including Norma documents?' Smith, who claimed that he had not fulfilled the Yet all didn't go in Tilton's favor. The court promises for which they had donated consider- did find that the attorney general had—under able sums to his ministry.' the Texas Non-Profit Corporation Act—limited In Tilton v. Smith the district court rejected authority over incorporated churches, which all of Norma Smith's claims except for the inten- meant that he might investigate under a "prop- tional and negligent infliction of emotional dis- erly narrowed summons" to determine "if the tress. The judge did, however, rule in favor of church is operating within the limited purposes Smith's request for discovery of Tilton's records, for which it was incorporated and if it may despite Tilton's claim that this would violate his retain its nonprofit status?'" freedom of association under the First Morales appealed, arguing that the federal Amendment. Tilton sought to block this on district court abused its discretion by hearing appeal. the case before matters of state law had been The Texas Supreme Court granted Tilton's settled at the state court level. The U.S. Court of request on a conditional basis.' Justice Rose Appeals, Fifth Circuit, in March 29, 1993, agreed Spector, writing for the Texas Supreme Court, with Morales, holding that, because of the attor- explained that the First Amendment required a ney general's modified investigatory demands, "compelling state interest to be shown before a there were no exceptional circumstances that court may order disclosure of membership in an justified federal court intervention at this stage. organization engaged in advocacy of particular The church's appeal to the U.S. Supreme Court, beliefs," citing NAACP v. Alabama (1958). The intended to override the ruling of the appeals court ruled that Smith's request was too broad. court, was denied." Rather than asking for a list of all members,

14 LIBERTY JULY/AUGUST 1997 Smith should have requested a list of individu- had immunized clergy or churches from all als with similar complaints. The ruling resulted causes of action alleging tortuous conduct?' in only a partial victory for Tilton, as it did not What the court had to determine (among block a narrowly tailored discovery involving other things) was whether these suits against Tilton's records.' Tilton were violative of his free exercise rights. In another suit three parties alleged that The court explained the process that must be Tilton committed fraud, conspiracy, and inten- followed to determine whether an individual tional infliction of emotional distress. Curtis could be civilly liable, as in these suits, for reli- and Patsy High had contributed more than gious statements or actions: If a "statute, $15,000 to Tilton in the hope of recov- regulation, or common-law principle" ering custody of her children. is "facially neutral," a defendant Andrea Johnson, a physically dis- seeking an exemption from the abled welfare recipient, had con- rule (in this case a civil suit) tributed welfare income to must "demonstrate to the court Tilton. Mary Elizabeth Turk, that the application thereof since deceased, had begun con- would burden his or her free tributing to Tilton while caring exercise of religion." The for her ailing husband. She con- court's language, in which the tinued contributions, totaling In ano ther suit onus is on the defendant to $1,500, when she began herself prove the burden a supposedly suffering considerable pain, three parties alleged neutral law (or civil suit under trusting in Tilton's promises of the law) places on the free exer- physical restoration. She later that Tilton cise of religion, is reminiscent of discovered that she was terminal- Oregon v. Smith (1990), which is ly ill with rectal cancer. The committed fraud, why Tilton's lawyers cited the plaintiffs alleged that Tilton had Religious Freedom Restoration not fulfilled his promises to pray conspiracy, and Act (RFRA) in opposition to the over each request personally; fur- plaintiffs' arguments (RFRA ther, they alleged that his promis- intentional infliction requires the state to show a es were insincere and that he did compelling interest before it not follow his own counsel on of emotional violates religious freedoms). tithing. They claimed he had Chief Justice Phillips also committed fraud, inflicted inten- distress. noted that merely claiming reli- tional emotional distress, and gious belief was not a sufficient conspired to do both. Among bar to civil suit; the individual other things, the plaintiffs sought must also show that his beliefs discovery of seven years of Tilton's personal are sincerely held. If the defendant could show tithing record.' this, the plaintiff then had to "show to the court Despite Tilton's attempt to quash the deposi- that granting the exemption [from civil suit] tion, the district court issued an order for the would significantly hinder a state compelling requested records. Tilton "filed an emergency interest?' The court determined that suits for motion for leave to file petition for writ of pro- fraud in which religious beliefs were involved hibition or writ of mandamus" with the Texas presented a greater likelihood of entanglement Supreme Court, arguing that the district court between religion and the state, noting that the abused its discretion in failing to dismiss the state could not determine the "truth or falsity of suit as well as ordering production of his tithing a religious representation." records.' Because none of these issues had been dealt with in the lawsuits, the Supreme Court said it he Texas Supreme Court Straddles the Fence could not rule on whether Tilton's free exercise In a lengthy and complex decision, the Texas claims would be infringed if the cases were Supreme Court in Tilton v. Marshall detailed the continued, a victory for the plaintiffs. The fed- state's responsibility to protect free exercise of eral bench did warn, however, that the district religion, while at the same time guard its citi- court could not consider a claim based on zens against injury. According to Chief Justice unanswered prayers. As for any fraud, the Tom Phillips, "the Free Exercise Clause never court said damages would be limited to recov-

LIBERTY JULY/AUGUST 1997 15 ery of donations. Exemplary damages could be not be held to all their promises in a court of merited only if plaintiffs could show intention- law. Statements of belief, or hope, or even al harm or conscious indifference resulting in promise, of an essentially religious character, as harm. But Phillips cautioned that since the distinguished from purely secular statements, threshold of proof for intentional emotional are protected by the Free Exercise Clause of the distress was high, plaintiffs were unlikely to First Amendment of the United States succeed on that claim. If Tilton's actions were Constitution. If, as I think, the essential element shown to be a sincere exercise of his religious all plaintiffs' claims share is that Tilton misrep- beliefs, the court acknowledged that resented what God would do, then those imposing tort liability on them would claims are barred, and the district court place a "direct and substantial bur- should be directed to dismiss them" den" on Tilton's religious rights. (italics supplied). At the time, the court said, legal Hecht argued that allowing action might still be justified if lower court consideration of this the conduct at question posed case would create a chilling effect some "substantial threat to pub- on religious exercise. Hecht lic safety, peace, or order."" On noted, too, the impracticality of the question of Tilton's tithe, the the case: "Compensatory dam- court ruled that his personal ages cannot be recovered because tithing records were relevant in Gonzale z noted there is no way to determine the determining the sincerity of his value of what plaintiffs received." beliefs, and thus the trial court that had plaintiffs Hecht reprimanded the majority had not abused its discretion in for ignoring the provisions of the ordering their production." received the Texas Constitution, which clearly Justice Rail Gonzalez, in dis- prohibited state consideration of sent, argued that the intensely answers that they matters of religion." religious nature of plaintiffs' claims, all dealing ultimately sought to their he Battle Continues with unanswered prayers, pre- itThough this ruling of the cluded court consideration. The prayers, they would Texas high court allowed several state's concern for protecting the suits against Tilton to proceed, free exercise of religion, he not have sued. Tilton's lawyers filed a motion argued, far outweighed concerns for rehearing, seeking to block of the plaintiffs. "Moreover," he the suits. J. C. Joyce, counsel for wrote, "trying this case is the first Tilton, is confident Tilton will step down a slippery slope that ends with heresy prevail. Joyce views Tilton's case as the "most trials in this state's courts" (italics supplied). significant religious freedom case to come Gonzalez noted that had plaintiffs received before the courts in many years.' the answers that they sought to their prayers, A diverse group of Texas churches evidently they would not have sued: "The plaintiffs have agrees. Shelby Sharpe, who won a major class alleged that Tilton's statements about what he action suit against the state of Texas in behalf of and God would do caused them severe emo- home schoolers (Leeper v. Arlington), filed an tional distress when the promised events—the amicus curiae brief with the Texas Supreme fulfillment of their prayers—failed to material- Court in Tilton's favor. Sharpe argued that the ize:' To reach the threshold for infliction of Texas Supreme Court should order the trial emotional distress, requiring proof that Tilton's court to dismiss the suit against Tilton, "because representations were outrageous, would every alleged cause of action is directed at reli- inevitably involve the court's consideration of gious beliefs and practices protected by the First "the truth or falsity of religious convictions and Amendment to the Constitution of the United the power of prayer," matters obviously beyond States as read into the Fourteenth Amendment the cognizance of the state." and by Article 1, Section 6, of the Constitution Justice Nathan Hecht, also in dissent, con- of the State of Texas.' cluded that the conduct in question was clear- In the meantime, Tilton's legal battles have ly beyond the legitimate concerns of the state: taken a severe toll. Besides losing his television "In this country religion and its adherents can- audience and most of the members of his

16 LIBERTY JULY/AUGUST 1997 Carrollton church, Tilton's 25-year marriage 114 S.Ct. 925. A subsequent suit was also thrown out of broke up. Tilton has remarried evangelist Leigh court in February 1995 (Wrolstad, J-10). Valentine, but the marriage has been difficult, "Bill Lodge, "Tilton Told to Pay Pair for Fraud; Dallas Morning News, April 22, 1994, pp. Al, A22. Tilton's request and appears to be headed for divorce. He has for an injunction to block rebroadcast of ABC's allegedly sold off most of the properties formerly owned defamatory broadcast was rejected in Tilton v. Capital by his ministry, probably in part to pay his sub- Cities/ABC, Inc. This case also includes a review of Tilton's refutation of allegations aired on Prime Time Live, 827 stantial legal fees." ESupp 672 and 827 F.Supp 674 (N.D. Okla. 1993). Is Tilton simply a misunderstood evangelist 'Tilton v. Moye, 869 S.W.2d 955 (Tex. 1994). who's the victim of government coercion? Or is "869 S.W. 2d 955, 956, 957; new request for restraining he a con artist, a "prophet of profit," using reli- order denied in Tilton v. Smith, 827 F.Supp. 404 (N.D. Tex. gion to defraud the public? Or, from a legal 1993). standpoint, does it really matter? "Tilton v. Marshall, 38 Tex. Sup. Ct. J. 1140; 1995 WL However important those questions, the bigger 453268 (Tex., 1995), 1, 2; the decision was handed down August 1, 1995; petition for rehearing filed August 21, 1995. one remains: At what point should the govern- "1995 WL 453268, 1, 2. Mandamus is a device intended to ment intervene in a religious operation? Suppose force a legal official to take a certain action. Norma Smith's husband had decided to forego "Ibid., 2-4. medical treatment, believing Tilton's promises that because they sent in their "vow of faith," he "Ibid. would be healed? Should the government have "Ibid., 5-8. stepped in then? But if it did, what would stop it "Ibid., 9-10. from going even further in other situations? "Ibid., 14-18. These are crucial issues, and whatever the Texas "Ibid., 19, 25, 27-28, 30. courts decide will have repercussions that go far "Tilton v. Marshall, Motion for Rehearing, No. 94-1231 As beyond either Robert Tilton or Norma Smith. of July 1996 the Texas Supreme Court granted a writ of mandamus requiring dismissal of the plaintiffs' claims of intentional infliction of emotional distress and barring required production of Tilton's tithing records. It allowed FOOTNOTES fraud claims to proceed, cautioning, however, that the court could not consider claims based on religious doctrines. 'Statistics on Tilton's ministry were aired on ABC's Prime Joyce's remarks from author's conversation with J. C. Joyce, Time Live, Nov. 21, 1991. Also, see Mark Wrolstad, "Trying April 9, 1996. Times:' Dallas Morning News, Dec. 3, 1995, pp. J-1, J-10. "J. Shelby Sharpe, brief of amici curiae in support of 'Jack Kelley, "TV Minister's Star on the Rise," USA Today, motion for rehearing, Tilton v. Marshall, No. 94-1233, 2. A Oct. 19, 1990, p. A6. successful suit against Tilton in Florida, Elliott v. Tilton 'Wrolstad. was overturned by the Fifth Circuit Court of Appeals on a technicality. The jury had awarded $1.5 million to Elliott 'Robert Tilton, You Shall Eat the Riches of the Gentiles for damages related to fraud, breach of contract, inten- (Dallas: Robert Tilton Ministries, 1990), pp. 8, 59-66, 72. tional infliction of emotional distress, and conspiracy, 'Prime Time Live, Nov. 21, 1991. Elliott v. Tilton, 62 F.3d 725, 727-29 (5th Cir. 1995). According to the appeals court, Elliott failed to show that °Ole Anthony, "Praying and Preying," Dallas Morning News, members of Tilton's church resided in Florida or other March 1, 1992. In a phone conversation with the author on states besides Texas, to prove the complete diversity on April 9, 1996, Ole Anthony claimed to have on file hundreds which they based their claim to federal jurisdiction. The of complaints against Tilton's ministries. claim arose from Mrs. Elliott's reliance on Tilton's min- 'Some of ABC's allegations must be questioned, as the istry during a period of emotional depression when she information was derived from anonymous sources. had contemplated suicide. The Elliotts had appeared on a testimonial tape following an alleged promise by a Word 'Word of Faith World Outreach Center Church, Inc., v. Dan of Faith employee that money generated from the tape Morales, 787 ESupp. 689 (W.D. Tex. 1992). The probate court would be used to build a national crisis center to help indi- issued a show cause order and set a hearing for March 9, 1992. viduals suffering from depression. Additionally, the Elliotts had been promised that they would be allowed to 9787 F.Supp. 689, 692. Quo warranto proceedings are a approve the testimonial after editing before the tape's air- device used to force an individual to show his or her right to ing. Neither of the alleged promises were fulfilled. Paul exercise a legal authority or privilege. Pettite, a former Word of Faith film producer, testified at 10787 F.Supp. 689, 694, and Word of Faith World Outreach the trial that he had forged the Elliotts' signatures on Center Church, Inc., v. Dan Morales, 986 F.2d 962, 964 (5th release forms. Both Tilton and his former wife denied Cir. 1993). The major question was the relevance of the knowledge of any promise to build a crisis center. Since precedents of Younger and Pullman. the Elliotts' claims were not directly associated with reli- gious beliefs or conduct, they do not present the same dif- "787 F.Supp. 689, 693-695, 697, 694. ficulties for free exercise. See discussion in "Lodge," Dallas '2787 F.Supp. 689, 704. Morning News, pp. A 1 , A16. "Word of Faith World Outreach Center Church, Inc., v. Dan "Wrolstad, J-10. A church spokesman, in a conversa- Morales, 986 F.2d 962, 968, 969 (5th Cir. 1993); certiorari tion with the author on March 9, 1996, reported that denied, 114 S.Ct. 82. the church was doing well, with an attendance of 1,000. Other reports, however, show attendance at 300 and "6 F.3d 683 (10th Cir. 1993); request for certiorari denied, dwindling.

LIBERTY JULY/AUGUST 1997 17

n 1984 drug counselor Alfred Smith was the second cannot be."' The result would be no fired for ingesting peyote in a religious cer- different under a standard embodied in a Iemony for a Native American Church rit- statute such as RFRA. Religious conduct will ual. Though as early as 1964 the California never be absolutely protected, because "to per- Supreme Court noted the significance of peyote mit this would be to make the professed doc- to that church's religious practices,' the State trines of religious belief superior to the law of of Oregon denied Mr. Smith unemployment the land, and in effect every citizen to become a compensation because "the state's interest in law unto himself."' And though the nation has proscribing the use of dangerous not yet clearly decided which types of religious drugs ... justified denying the claim- conduct should be protected from state regula-

AttefEXE ant unemployment benefits."' The United tion, there are steps that can help the courts States Supreme Court upheld that denial, argu- decide how to protect free exercise rights. ing that states can enforce a general prohibition The first step in assessing the level of legal of conduct motivated even by religious convic- protection for free exercise is to determine the tions.' circumstances in which religious conduct is By Congress responded with the Religious likely to conflict with society. There are at least STEVEN G. GEY Freedom Restoration Act, or RFRA,4 which three broad contexts in which this usually hap- reimposed the standard rejected in Smith. pens, and each should lead to different levels of Under the pre-Smith (and new statutory) stan- protection. dard, government may substantially burden a person's exercise of religion only if the burden Harm to Others "is in furtherance of a compelling governmen- The first type arises when the religious con- tal interest" and "is the least restrictive means of duct of one person directly harms another—such furthering that interest."' Though the constitu- as when parents deny a child medical care. The tionality of RFRA itself is being challenged,' the courts have uniformly held that the law doesn't deeper—and more troubling—question per- prevent the state from intervening in order to sists: When should religiously-motivated con- provide critical medical attention (such as blood duct be exempted from laws that otherwise transfusions) denied by parents on religious would prohibit that conduct? In other words, at grounds.' When free exercise of religion involves what point can and should the free exercise of something as dramatic as a child's life, the courts religion be stopped? understandably err on the side protecting the The Supreme Court and the lower courts child, even if it means refusing to respect the par- have grappled with this question in hundreds ents' religious practices. Other courts have held of opinions issued over more than a century. that states may even impose criminal sanctions After all this time, and all these decisions, one on parents whose religiously motivated denial of thing remains clear: no matter how sacred the care results in a child's death.' practice, and no matter what statutory or In other contexts, however, the courts fre- constitutional standard ultimately adopted by quently defer to the religious practices of par- the courts, religious conduct can be subjected ents, even when those practices have a deep to government control. The hard part is and lasting impact on the children. The most deciding when and under what circum- famous Supreme Court case on this subject Steven G. Gey is stances. involved Amish who removed their children the John W. and Ashley Decades ago the Supreme Court said that from school after the eighth grade despite a b. E. Frost professor of law the First Amendment's provision protecting state law requiring school attendance until the at the Florida State the free exercise of religion "embraces two con- age of 16. Though removing children from University College cepts—freedom to believe and freedom to act. school so young would make it extremely diffi- .,t .410:, of Law in Tallahassee. The first is absolute but, in the nature of things, cult for them to leave the Amish community

NeSt4. , 18 LIBERTY JULY/AUGUST 1997 &YAM ,. (and perhaps adopt another religion) as adults, them to inject their personal religious views the Court deferred to the parents and granted into classroom discussions.' the exemption." In the area of taxation, some religious prac- Outside the context of parent/child relations, titioners have sought exemption from general- the recent RFRA case before the Supreme Court ized social welfare programs like Social presents another example of religious conduct Security.' Others have challenged the internal that arguably harms others. A Texas church administration of government benefits pro- challenged a city's historical preservation statute grams. For example, religious practitioners Sure, Our that prevented the church from expanding its often agree to participate in programs like structure. Though the religious activity Social Security, but refuse to comply with Country Allows

Us to Believe in Whatever RCISE S ?• Religion We Want; It Just (expanding the church) "harmed" the public's administrative requirements that violate their interest in preserving its architectural heritage, religious precepts (such as obtaining a Social Doesn't Allow the court of appeals held that the religious Security number)." Others have refused to group's actions were nevertheless subject to comply with more general regulations (one per- RFRA protection.' son objected to getting a driver's license because Unfettered These three situations differ only in degree. on religious grounds she didn't want her picture In the Amish education and blood transfusion taken)." Freedom to Follow cases, the state was being asked to serve in loco Claims by prisoners are perhaps the most parentis—in the place of the parent—to pre- typical context in which free exercise conflicts Those Beliefs. serve the child's freedom eventually to choose with the government. Prisoners have chal- his or her own religious beliefs (in the blood lenged various regulations impinging on When and Where transfusion conflict, if the child died, he would religious activity, including restrictions on have no chance to make a religious choice later attendance at services,' hair and beard length," Should It Draw on) even if those choices would differ from the diet,' access to texts," use of religious names," parents. Likewise, the Texas zoning case is dif- jewelry (such as crucifixes)," and the celebra- the Line? ferent in degree, not in kind, from the others tion of holidays." in that the "harm" is more generalized (it Though these conflicts require the courts to impacts the public rather than one individual) closely examine the questioned government and is more abstract than the concrete, physi- action, in most cases the government program cal form that would come from denying a will be upheld. The reasons are manifold. First, needed blood transfusion. Yet it is argued that many government programs could not operate even abstract "harm" does, indeed, intrude on if authorities were forced to constantly mold the rights and interests of others and thus the programs to an almost unlimited variety of must be addressed. religious practices. Also, permitting religious employers to avoid making Social Security pay- Hampering the Government ments for their employees would endanger the The second type of conflict arises when reli- financial base of the entire program, which gious practitioners engage in conduct that assumes universal participation. (Excluding hampers the government's ability to function, religious employers from the program would even though the conduct does not directly also harm the retirement prospects of employ- harm anyone. In public schools, for example, ees, which would make the case an example of practitioners argue that their religion requires the first type of conflict.) And public schools the school to exempt their children from parts could not function if one religious group of the curriculum." In other cases, public refused to participate in English classes, anoth- school teachers have claimed that their reli- er in biology, and so on. gious faith prevents them from teaching sub- Another reason these cases are often jects prescribed in the curriculum," or compels resolved in favor of the government is the

LIBERTY JULY/AUGUST 1997 19 Establishment Clause. In conflicts, for exam- exercise: when the religious practitioner engages ple, between teachers and the public schools, in conduct that does not directly affect anyone because the teacher is acting as the agent of the but himself or herself, and where the law simply state, his or her conduct will inevitably be seen embodies the political majority's generalized as conduct endorsed by the state. Therefore, if moral or political judgments. the government permitted public school teach- In Smith the state's laws prohibiting drug ers to engage in religious conduct, or even use made no exceptions for religious cere- express their personal religious beliefs in the monies. In a decision prior to Smith the classroom, the school would, in essence, be Oregon Supreme Court explained that it didn't complicit in violating clear-cut Establishment matter if peyote use in religious ceremonies Clause principles. As in the harm cases, the posed no public health or safety threat. It was government must regulate the religious behav- enough that "peyote and mescaline have been ior of one person (the teacher) in order to declared by the legislature to be dangerous Of course, it preserve the religious freedom of others (the drugs as a matter of law."" Under either con- students). Similarly, by requiring religious stitutional or statutory protections, it is diffi- employers to participate in Social Security, the cult to see how this generalized (and inaccu- is not always easy government is ensuring that the employer's rate) legislative assumption justifies punishing religious beliefs do not infringe on the employ- the practitioners' conduct. If protection of ees' freedom to reject those beliefs and their religious practice amounts to anything, it at to determine whether consequences. least prohibits demonstrably untrue legislative On the other hand, the government some- policy assumptions from infringing upon free times refuses to accommodate religious prac- exercise rights. tices restricted by trivial administrative rules Of course, it is not always easy to deter- a case fits within the that should not justify denial of government mine whether a case fits within the "harmless benefits to individuals whose sincerely moti- conduct" category. For example, how should vated religious practices conflict with the law. society deal with cases involving religiously "harmless conduct" For example, why must the government motivated polygamy? Is polygamy a victim- require a picture on the driver's license of less crime, or does it inflict financial and those who demonstrate a sincere religious rea- emotional harm on women? When the category. son for not complying? Or why should the Supreme Court upheld the bigamy conviction government require all participants in social of a Mormon in the past century, the Court welfare programs to obtain Social Security asserted that the government may prohibit numbers, when other means exist to easily only "actions which [are] in violation of social identify recipients? duties or subversive of good order." If this Prison cases raise similar concerns. Clearly a phrase means that the government can assert prison should not be forced to prepare special one form of morality (which itself may have a meals every day for each individual prisoner at religious basis) over conflicting moral views, state expense, nor should the prison be forced to then the government's actions seem contrary accommodate religious behavior that threatens to the principles of religious freedom, which the health of others or general prison security. encourage and protect moral and religious But many cases involve practices that can easily diversity. be accommodated. Allowing religious prison- Likewise, how should society deal with ani- ers to wear clean beards, to receive religious lit- mal sacrifice? Are the harms here—that is, erature, or to worship on the day of their choice nonhuman harms—enough to override the will not result in a fundamental breakdown of practices themselves? The Supreme Court prison discipline. The same goes for other recently struck down a statute prohibiting heavily regulated government activities, such as animal sacrifice because it constituted a prej- military service. It is difficult to justify the udicial attack on a particular religious Supreme Court's decision that the military can group." prohibit an Orthodox Jew from wearing an But suppose the statute had not been unobtrusive yarmulke while on duty.' motivated by animus against an unpopular sect. In that situation it would be difficult to Moral Offenses construct a harm-related justification for The third type of conflict generates the regulating the sacrifices, especially when ani- strongest arguments in favor of protecting free mals are allowed to be killed for other rea-

20 LIBERTY JULY/AUGUST 1997 sons: (The possibility of improper disposal of believe is absolute, but in the nature of sacrificed animals is one harm-related con- things, the freedom to act will never be. cern, but this problem can be addressed with- And it shouldn't. But as Alfred Smith can out prohibiting the action altogether; the testify, determining just when it shouldn't-that state can simply punish improper disposal isn't always easy. itself.) Is a governmental decision based on a moral assumption that cruelty to animals is wrong enough to hamper free exercise rights? FOOTNOTES And if the cruelty of animal sacrifice is no 'People v. Woody, 394 P.2d 813, 817 (1964). greater than the cruelty of animal slaughter 'Smith v. Employment Division, 763 P.2d 146, 147 (Oreg., generally (such as hunting), then laws pro- 1988). hibiting animal sacrifice rest on majoritarian 'Employment Division v. Smith, 494 U.S. 872, 882 (1990). morality, nothing else. This is problematic, because both constitutional and statutory 'See 42 U.S. C. &2000bb (1996). Though the free exercise protections would seem to pro- '42 U.S.C. &2000bb-1(b)(1) &(2) (1996). hibit the government form-on the basis of 'Flores v. City of Boerne, 73 F.3d 1352 (5th Cir.), cert. grant- nothing more than majoritarian morality- ed, 117 S.Ct. 293 (1996). logic of free exercise regulating these, or any other, religious prac- 'Cantwell v. Connecticut, 310 U.S. 296, 303-04 (1940). tices. 'Reynolds v. United States, 98, U.S. 145, 167 (1879). Though the logic of free exercise rights may 'Jehovah's Witnesses v. King County Hospital, 278, E Supp. rights may lead lead to the protection of "victimless" religious 448 (WD. Wash. 1967), aff'd, 390 U.S. 598 (1968); Hoener v. Bertinato, 171, A. 2d 140 (N.J. Super. Ct. 1961); Wallace v. activities, logic at times does run counter to Labrenz, 104 N.E. 2d 769 (III. 1952). political intuition. In the light of practical pol- "Hermanson v. State, 570 So.2d 322 (Fla. Dist. Ct. App. itics, it is doubtful that society or the courts 1990) rev'd on other grounds, 604 So.2d 775 (Fla. 1992); to the protection of would tolerate routine animal sacrifice, Hall v. State, 493 N.E.2d 433 (Ind. 1986); Commonwealth v. Barnhart, 497 A.2d 616 (Pa. Super. 1985). polygamy, or rampant drug use, even during religious ceremonies. But if these practices can "Wisconsin v. Yoder, 406 U.S. 205 (1972). "victimless" be prohibited simply because society declares "Flores v. City of Boerne, 73 F.3d 1352 (5th Cir.), cert. grant- ed, 117 S.Ct. 293 (1996). them morally unpalatable-and if the courts are likely to endorse the much stronger reasons "Brown v. Hot, Sexy, and Safer Productions, Inc., 68 F.3d 525 (1st Cir. 1995) cert. denied, 116 S.Ct. 1044 (1996); Mozert v. religious activities, for regulating harmful religious conduct and Hawkins County Board of Education, 827 F.2d 1058 (6th Cir. religious conduct that impede legitimate state 1987), cert. denied, 484 U.S. 1066 (1988). activities-then how much free exercise pro- "Peloza v. Capistrano Unified School District, 37 F.3d 517 tection really exists? (9th Cir. 1994), cert. denied, 115 S.Ct. 2640 (1995). logic at times The answer may be "Not much," which 'Bishop v. Aronov, 926 F.2d 1066 (11th Cir. 1991), cert. denied, 505 U.S. 1218 (1992); Roberts v. Madigan, 921 F.2d seems to say something about the role that 1047 (10th Cir. 1990), cert. denied, 505 U.S. 1218 (1992). religion plays in the modern world. At a time "United States v. Lee, 455, U.S. 252 (1982). does run counter to when government intercedes more and more "Bowen v. Roy, into daily actions, religion may have been rel- 476, U.S. 693 (1986). egated to the sidelines of public life. Sure, reli- "Quaring v. Peterson, 728 F.2d 1121 (8th Cir. 1984), aff'd, 472 U.S. 478 (1985). political intuition. gion can still provide a spiritual justification "O'Lone v. Estate of Shabazz, for human existence, and it can likewise moti- 482 U.S. 342 (1987). vate secular conduct through the inculcation "Harris v. Chapman, 97 F.3d 499 (11th Cir. 1996); Fromer v. Scully, 817 F.2d 227 (2d Cir. 1987). of a comprehensive moral framework. But purely religious action itself seems to be pro- "Friedman v. South, 92 F.3d 989 (9th Cir. 1996). tected only as it falls within the broad main- "Stefanow v. McFadden, 103 F.3d 1466 (9th Cir. 1996). stream of conduct endorsed by society, not a "Malik v. Brown, 71 F.3d 724 (9th Cir. 1995). particularly good or safe parameter for so "Sasnett v. Sullivan, 91 F.3d 1018 (7th Cir. 1996). basic a right. "O'Leary v. Peters, 80 F.3d 1175 (7th Cir. 1996). "Goldman v. Weinberger, 475 U.S. 503 (1986). Free Exercises? "State v. Soto, 537 P.2d 142, 144 (Oreg., 1975), cell. denied, In the end the Supreme Court-and for 424 U.S. 955 (1976). that matter, society at large-seems unlikely "Reynolds v. United States, 98 U.S. 145, 164 (1879). to deviate from the principle motivating its "Church of the Lukumi Babalu Aye, Inc., v. Hialeah, 508 U.S. early religious conduct cases: the freedom to 520 (1993).

LIBERTY JULY/AUGUST 1997 21 (continued from page 11) asylum for refugees seeking to escape FGM. WINGS A GLOBAL ALLIANCE The United Kingdom, which outlawed the In 1994 the General Assembly of the practice in 1985, has developed an anti-FGM International Federation of Gynecology and movement involving each of their social service Obstetrics passed a resolution directing doctors agencies.' In France, Canada, Denmark, to refuse to perform female genital mutilation. Switzerland, Sweden, and Belgium, FGM is The resolution directed doctors to "oppose any punishable as child abuse under existing laws." attempt to medicalize the procedure or to allow In Paris an estimated 4,000 girls a year are sub- its performance, under any circumstances, in jected to FGM and 19 people have been tried health establishments or by health professionals."'" for performing the procedure. France was one At the 1994 United Nations Conference on of the first countries in Europe to declare the Human Rights, women's groups from every cul- procedure a form of persecution sufficient for ture signed a petition saying, "We demand gen- refugee status." Canadian deputy prime minis- der violence to be recognized as a violation of ter Sheila Cropps has declared that assault and human rights." child abuse laws render FGM a crime in The 1993 Vienna Declaration of the World Canada, and the Immigration and Refugee Conference on Human Rights held that female Board of Canada is granting asylum on a case- genital mutilation is a human rights violation." by-case basis.' At the recommendation of the 1993 United FGM is now thriving in American cities like Nations World Conference on Human Rights, Washington, D.C., New York, and San Francisco, the United Nations General Assembly adopted where there are large communities of African the Declaration on the Elimination of Violence immigrants growing at a rate of 7,000 women Against Women, explicitly stating that "female and girls annually.' genital mutilation and other traditional prac- As a result, the United States judicial and tices harmful to women are forms of violence legislative branches must also address this reli- against women that both violate and impair or gious and cultural issue.' nullify the enjoyment by women of human rights and fundamental freedoms.' RELIGIOUS LIBERTY OR A CASE Major international groups have joined forces FOR JUDICIAL INTERFERENCE? to oppose and eradicate FGM. Delegates from Muslim insistence that female genital mutila- the World Health Organization, a United Nations tion is religious tradition because it has been agency, have proposed a resolution condemning sanctioned as such for generations poses a legit- the practice and urging their respective govern- imate religious liberty question. ments to enact legal penalties. The American Legal expert Mitchell A. Tyner believes that Medical Association has fought to make female even without support from the Koran, Muslims genital mutilation and all medically unnecessary have a valid religious liberty claim: "To say that modification of female genitalia illegal. Working a Muslim religious liberty issue would have to with the AMA are the World Health be supported by the Koran is like saying that a Organization, the World Medical Organization, religious liberty issue for Christians would have UNICEF, and the International Federation of to be supported by the Bible. From a religious Gynecology and Obstetrics to promote aware- perspective, an issue is Christian if it is taught in ness among public health workers and educate the Bible or originates in Christian tradition health professionals on a global basis." based on the Bible. But from a religious liberty Women's rights groups such as Population perspective, or legal perspective, you must give Action International, Equality NOW, RAINBO, the widest possible interpretation for the indi- the Washington Metropolitan Alliance Against vidual to define his or her own religion, then Ritualistic FGM, and the Program for you determine whether the government has a Appropriate Technology and Health form an right or responsibility to intervene:' information and activist network against FGM." Tyner says he classifies FGM as a religious liberty issue because people have the right to say FGM COMES TO AMERICA what is religious for them and what is not. If As immigrants who practice female genital someone believes that their religion requires a mutilation migrate to the West, these countries certain practice, even if religious scholars dis- are confronted with a custom that is abhorrent agree, it's still a religious liberty issue. to them. They are also faced with the issue of He cautions, however, that religious liberty

22 LIBERTY JULY/AUGUST 1997 imi Ramsey, an Ethiopian immigrant nurse, genitally mutilated at 6 and dedicated to the abolishment of FGM, is founder of the African organization Forward U.S.A., located Mat 2040 Forest Avenue, Suite 2, San Jose, CA 95128 (408) 298-3798, Fax: (408) 298-3893.

cases are most difficult to win when the right to practice a religion is in direct conflict with the rights of someone else. "In the United States," says Tyner, "government protects the rights of the child if and when the parents fail to act in the best interest of the child." In law, this is known as parens patriae. That's the rationale behind govern- ment intervention when Jehovah's Witnesses deny their child a blood transfusion, or Christian Scientists deny their child medical treatment. The soci- etal responsibility to the child takes precedence over the rights of the par- ents. This rationale, Tyner insists, fits perfectly in dealing with female genital mutilation. "There is a societal oblig- ation—based on the concept of indi- vidual rights—to prevent child mutilation. The "broad parental authority over minor children" (Above) Minutes after rights of the child take precedence over the rights upheld in previous cases, "a state is not without her organs were severed, of the parents to practice their religious belief." constitutional control over parental discretion in Seita moans, "I'm dying, In Prince v. Massachusetts," one of the most I'm dying, I think I am dealing with children when their physical or men- going to die." The important cases regarding judicial intervention tal health is jeopardi7ed." circumciser sits by, in parental rights, the U. S. Supreme Court held The Model Child Protection Act and the waiting to examine Seita that "the state has a wide range of power for lim- Federal Abuse Prevention and Treatment Act also to see if she was cut iting parental freedom and authority in things provide foundations for protecting young girls properly. If there is any affecting the child's welfare," asserting that "par- part of the clitoris or from FGM. Under the former, a child is consid- labia minora remaining, ents may be free to become martyrs themselves ered abused when her physical and mental health it will be removed. but it does not follow they are free to make mar- or welfare is harmed or threatened. The latter tyrs of their children before they have reached defines child abuse as "physical or mental injury, (Inset) As Seita the age of full and legal discretion where they sexual abuse or exploitation, or negligent treat- grieves her irretrievable can make that choice for themselves." ment of a child." The removal of a child's geni- loss she is comforted Wisconsin v. Yoder," while upholding parental by Lois Towon, her talia and subsequent psychological consequences godmother. rights, also reinforced the allowance for parental constitute physical and mental injury. authority and discretion to be challenged "if it appears that the parental decision will jeopar- CONGRESS TAKES A STAND- dize the health or safety of the child, or have a WHITHER FREE EXERCISE? potential for significant social burdens." On February 14, 1995, Congresswoman Several years later in Parham v. J.R.," the Court Patricia Schroeder (D-Colo.) introduced the declined to allow parents absolute and unreview- Federal Prohibition of Female Genital Mutilation able discretion, noting that while recognizing the Act of 1995. On March 30, 1997, female genital

LIBERTY JULY/AUGUST 1997 23 early in 1997 heard arguments regarding the constitutionality of RFRA. Perhaps in its RFRA decision the Court will spell out what standard it will apply in the future.) It will probably be difficult, however, for individuals with religion-based reasons for FGM to prevail under Smith or Sherbert. In Smith the Court plainly stated that it will not apply the traditional test "to require exemptions from a generally applicable criminal law."" The government purpose in criminalizing FGM would not be to discriminate against the Islamic religion, but to protect the health and welfare of children. In Sherbert the High Court stated that "cer- tain overt acts prompted by religious beliefs or principle, ... even when the action is in accord with one's religious convictions, . . . are not totally free from legislative restrictions." In Reynolds v. United States," the Supreme mutilation became a criminal offense in the (Above) "Why are you Court's first Free Exercise decision, the Court trying to kill me?" a United States. The law states that "whoever held that while the state could not limit reli- young Kenyan woman knowingly circumcises, excises, or infibulates the gious beliefs, it could limit religious practices screams as the village whole or any part of the labia majora or labia that are harmful to society. The govern- women hold down her minora or clitoris of another person who has not ment's right to protect the physical and emo- legs and stifle her cries. attained the age of 18 years shall be fined under Perhaps the saddest tional health of children is a compelling state aspect of this tragedy is this title or imprisoned not more than five years, interest justifying interference in religious that FGM is an or both."" practices. atrocity perpetuated One thing the law does not answer is What by women on will happen to parents who return to their WHERE Do WE Go FROM HERE? women. native countries to subject their daughters to Education, commitment, and cooperative FGM? Also, it is inevitable that a challenge— effort are key to the success of eliminating on religious grounds—to the criminalization FGM nationally and globally. Teachers, nurses, of FGM will be argued before the U.S. and administrators in elementary schools in Supreme Court. How the Court responds will which there are students from Islamic cultures probably turn on two previous decisions, must become involved in information dissemi- Employment Division v. Smith and Sherbert v. nation with parents. Doctors and hospitals Verner. must educate women who have already been Under Sherbert, which established the frame- circumcised regarding the mental and physical work for Free Exercise cases, the plaintiff must health consequences of FGM on their daugh- prove that the government has imposed a sig- ters. States with large immigrant populations nificant burden on the practice of his/her gen- must unite their social service organizations to uine religious conviction. The government inform and educate. The international com- must then justify that burden by showing a munity must pressure cultures that practice compelling state interest that cannot be met by FGM to adhere to United Nations covenants any method less intrusive on the individual's and international law. religious practice." Outreach is more important than censure. In Smith the Court diluted Sherbert holding For young mothers struggling with the decision that a state need no longer show a "compelling to circumcise their daughters, mutilation must interest" when ruling against an individual's no longer be seen as imperative to self-esteem, religious practice if the practice violates a "valid religious tradition, or family loyalty. and neutral law of general applicability."" Seita Lengila in Kenya and the 10-year-old (Congress later passed the Religious Freedom victim in Cairo raised our consciousness. We Restoration Act, which restored use of the tradi- have a social and moral obligation to save their tional test in Sherbert, and the Supreme Court daughters from the same tragedy.

24 LIBERTY JULY/AUGUST 1997 FOOTNOTES Medicine 331 (1994): 713. A dermoid cyst is "a con- Name of Jehovah or Allah: Legitimization of Male genital cyst filled with sebaceous material and con- and Female Circumcision," Medicine and Law 13, 'Catherine L. Annas, "Irreversible Error: The Power taining primary germ-cell layers and, perhaps, fetal No. 575 (1994): 94. and Prejudice of Female Genital Mutilation," Journal remains. Upon removal the cysts are often found to "Marline Simons, "Mutilation of Girls' Genitals: of Contemporary Health Law and Policy 12, No. 325 contain hair, bone, teeth, and cartilage" (Benjamin F. Ethnic Gulf in French Court," New York Times (late (Spring 1996). Miller, M.D., and Claire Brackman Keane, RN., B.S., ed.), Nov. 23, 1993. 'Robin M. Maher, "Female Genital Mutilation: The Encyclopedia and Dictionary of Medicine and Nursing Struggle to Eradicate This Rite of Passage,"Human [1972], p. 263). 40U.S. House of Representatives, 103rd Congress, Minority Health Improvement Act of 1994 (Report Rights Journal 12, No. 23 (Fall 1996). "Hosken, "The Hosken Report," p. 37. See also 103-501), May 11, 1994, pp. 66, 68. 'Robyn C. Smith, "Female Circumcision: Bringing "Female Circumcision" (note 16), p. 32; and Hosken, Women's Perspectives Into the International "Genital Mutilation" (note 11), p. 16. Carolyn Adolph, "Doctors Must Become Advocates for Women," Montreal Gazette, Oct. 1, Debate," Southern California Law Review 65 (1992): "Sophfronia Scott Gregory, "At Risk of Mutilation," 1994, p. A3. See also Deborah Charles, "Medical 2449, 2451. Time, March 21, 1994, pp. 45, 46. Group Calls for Ban on Female Circumcision," 'Fran Hosken, "The Hosken Report: Genital and "Susan Okie, "Female Circumcision Persists Tribal Reuters World Service, Sept. 30, 1994. Sexual Mutilation of Females," 4th ed. (1993), p. 42. Rite Worries Kenyan Health Officials," Washington 42Toubia (see note 19), p. 715. Hosken established the term female genital mutila- Post, April 13, 1993, p. A9. tion. See also Asim Z. Mustafa,"Female Circumcision 'Resolution 48/104 (1993). See also United Nations "See, e.g., H. Lightfoot-Klein, "Pharaonic and Infibulation in the Sudan," Journal of Obstetrics General Assembly, Declaration on the Elimination Circumcision of Females in the Sudan," Medicine Gynaecology 73 (1966): 303; World Health of Violence Against Women (Geneva: U.N. General and Law 2 (1983): 353, 356 (estimating that one Organization, "Female Genital Mutilation: World Assembly, A/RES/48/104, Feb. 23, 1994), pp. 2, 3. Health Assembly Calls for the Elimination of third of all Sudanese FGM victims die); Judy Mann, Harmful Traditional Practices" (Geneva: WHO "Torturing Girls Is Not a Cultural Right," "These organizations include, but are not limited to, Office of Information, Press Release WHA/10, May Washington Post, Feb. 23, 1994, p. E13 (quoting medical associations (Obstetrics and Gynecological 12, 1993), p. I. Rosemary Mburu, a Kenyan gynecologist, who esti- Society), Sudan Family Planning Association, Ahfad mates that 15 percent of all circumcised females die University College for Women, Saluker Badri 'Alice Walker and Pratibha Parmar, Warrior Marks: of bleeding or infections). Scientific Association for Women's Studies, World Female Genital Mutilation and the Sexual Binding of Health Organization, UNICEF, the Swedish Radda 24Abdullahi An-Na'im, "The Rights of Women and Women (Harcourt, Brace & Co., 1993), p. 82. Baren, Swedish Housewives Association, and the International Law in the Muslim Context," Whittier Norwegian Action Group. "African Women Speak on 'Barbara Crossette, "Female Genital Mutilation by Law Review 9 (1987): 491, 493. Immigrants Is Becoming Cause for Concern in the Female Circumcision," case studies presented at U.S.: New York Times, Dec. 10, 1995 (late ed.), p. 18. 'Shannon Brownlee et al., "In the Name of Ritual," workshop, briefing document 2, October 1984. See U.S. News and World Report, Feb. 7, 1994, pp. 56, 57. also Stephanie Nebehay, "United Nations Calls for 'The Weekend Sun (British Columbia), Oct. I, 1997, See also Maher (note 2). End to Female Genital Mutilation," Reuter Newswire- p. B3. Western Europe, May 5, 1994. See also "AMA Calls 26L. F. Lowenstein, "Attitudes and Attitude for Legislation to Eliminate Female Genital sHosken (see note 4), pp. 35, 40. Differences to Female Genital Mutilation in the Mutilation," Pr. Newswire, Dec. 7, 1994. 9Mustafa (see note 4), pp. 302, 303. Sudan: Is There a Change on the Horizon?" Social Science and Medicine 12 (1978): 417. See also 'Burstyn (see note 37), p. 32. l'Hosken (see note 4), p. 33. Hosken, "The Hosken Report," pp. 15, 32. 'The Prohibition of Female Circumcision Act of "Fran P. Hosken, "Genital Mutilation of Women in 'What's Culture Got to Do With It?" (see note 17), 1985 Makes the Practice Illegal" (Dorm Kogbara, Africa," Munger Africana Library Notes 36, No. 7 p. 1952. Andrew Alderson, and E. Jane Dickson, "Harley St. (1976): 7. See also "Female Genital Mutilation in the Surgeon Agreed to Perform Female Circumcision," "Toni Y. Joseph, "Scarring Ritual: Ancient African World Today: A Global Review," International Journal Sunday Times, Oct. 18, 1992). See also Burstyn Custom of Female Circumcision Destines Women to of Health Services 11 (1981): 415, 422. (note 37), p. 30. Life of Subservience," Dallas Morning News, Apr. 18, 12Hosken, "The Hosken Report," p. 40. See also 1993. See also Hosken, "The Hosken Report," pp. 34, 'Layli Miller Bashir, "Female Genital Mutilation in Caryle Murphy, "Mother, This Isn't Fair of You; In 40; Kay Boulware-Miller, "Female Circumcision: the United States: An Examination of Criminal and Egypt, Female Circumcision Is an Unyielding Challenges to the Practice as a Human Rights Asylum Law," American University Journal of Tradition," Washington Post, Aug. 28, 1994. Violation," Harvard Women's Law Journal 8 (1985): Gender and the Law 4: 415 (see notes 7, 108-119). 155, 157. "Hosken, "The Hosken Report," p. 33. See also "Kathryn Hone, "Tackling Africa's Ritual of Female Lawrence R Cutner, "Female Genital Mutilation," "Roger Kaplan, "Prisoners of Ritual," Freedom Circumcision," Irish Times, Oct. 12, 1994. See also Obstetrical and Gynecological Survey 40 (1985): 437, Review 24 (1992): 26. See also Isabelle R. Gunning, Clyde H. Farnsworth, "Canada Gives a Somali 440; Council on Scientific Affairs, American Medical "Arrogant Perception, World-Traveling, and Mother Refugee Status," New York Times (late ed.), Association,"Female Genital Mutilation,"Journal of the Multiple Cultural Feminism: The Case of Female July 21, 1994, p. A14. American Medical Association 274 (1995): 1714. Genital Surgeries," Columbia Human Rights Law "Allan Thompson, "Genital Mutilation Illegal, Review 23, No. 189 (1991-1992): 195. "See Walker and Parmar, p. 212, Hosken, "The Copps Says," Toronto Star (metro ed.), Oct. 4, 1994, Hosken Report," pp. 33, 37, Mustafa, p. 303; Cutner, "Geraldine Brooks, "Against the Verses," Guardian, p. A10. pp. 437, 440. March 11, 1995, p. T12. See also "Attack on Female "Burstyn (see note 37), p. 32. "Maher (see note 2), p. 2. Circumcision," Sacramento Bee, Sept. 4, 1994, p. A 14 (quoting Dr. Aida Abdel-Mohsen). "Maher (see note 2), p. 7. '6"A Traditional Practice That Threatens Health: Female Circumcision," WHO Chronicle 40 (1986): 31, "Loretta M. Kopelman, "Female Circumcision/Genital 52321 U.S. 158, 161, 163 (1944). Mutilation and Ethical Relativism," 20 32. See also Hosken, "The Hosken Report," pp. 15, 33; Second Opinion "406 U.S. 205, 234 (1972). and Cutner (note 13), p.441. (1994): 55, 62. 54442 U.S. 584, 602, 603, 606 (1979). 17 "What's Culture Got to Do With It? Excising the "Maher (see note 2), p. 3. "Public Law 104-208, Title I—Omnibus Harmful Tradition of Female Circumcision," ""What's Culture Got to Do With It?" (note 17). See Appropriations Act of 1997, under Title VI, Subtitle Harvard Law Review 106 (1993): 1944, 1946 (n. 57), also Cutner (note 13), p. 439. 1951. See also Smith (note 3); Anna Funder, "De B: ("Miscellaneous Amendments to the Minimus Non Curat Lex: the Clitoris, Culture and "Barbara Reynolds, "The Move to Outlaw Female Immigration and Nationality Act"), section 645 the Law," Transnational Law and Contemporary Genital Mutilation," Ms., July/August 1994, p. 92. ("Criminalization of Female Genital Mutilation"), subsection 116. Problems 3 (1993): 436 (quoting Abdu'l Band, 1912). "Lori Ann Larson, in Women's Rights Law Reporter "Dottie Lamm, "Egypt: Land of Contrasts, 17, No. 237 (Spring 1996): 8. 56374 U.S. 398, 406, 403 (1963). Contradictions," Denver Post, Oct. 2, 1994, p. D4. See "Annas (see note 1), p. 14. "494 U.S. 872, 883 (1990). also Hosken, "The Hosken Report," p. 37; Smith (note 3), p. 2451. "Linda Burstyn, "Female Circumcision Comes to p. 884. America,"Atlantic Monthly, October 1995, pp. 28-35. Nahid Toubia, M.D., "Female Circumcision as a 5998 U.S. 145 (1878). Public Health Issue," New England Journal of "Sarni A. Aldeeb Abu-Sahlieh, "To Mutilate in the

LIBERTY JULY/AUGUST 1997 25 The Price o By NICHOLAS P. MILLER

AITHt I

n May 1991 a rental car that Gwendolyn Robbins' father was driving in upstate When Jesus Said to New York skidded, plunged down an embankment, and overturned. Both her parents were killed, and Robbins, 55, was Count the Cost 1severely injured. She was rushed to nearby Glens Fall Hospital, where her condition was so of Following Him, critical—chest injuries, a fractured right femur, a fractured ankle, and a fractured hip—that upon admission last rites were administered. He Meant It for the The doctors stabilized her and prepared for surgery to reset displaced bones and ligaments. Individual Believers, The surgery was important for her recovery and critical for any opportunity that she might have to walk again. Not Their Insurance But Robbins refused the surgery. A devout Jehovah's Witness, she believed—based on the Companies. tenets of her faith—that she could undergo no blood transfusions, even if that refusal led to life-threatening progressive anemia. Fortunately, she did survive the immediate threat of infection and was transferred to a hos- pital in New York City. There she was placed in traction for several weeks, where she contin- ued to refuse any treatment that required blood transfusions. Her orthopedic surgeon stated that without joint replacement surgery she would become wheel- chair-bound or bedridden for the rest of her life. Robbins' decision to forgo surgery would thus greatly increase her need of medical services and home care. The story might have ended there except that she then sued her insurance company, a suit that raised difficult moral and legal ques- tions. Though it was

26 LIBERTY JULY/AUGUST 1997 Robbins' First Amendment right to refuse But did the judge, in arriving at the balance surgery, should the insurance company have to of rights and responsibilities, overlook a neces- pay for the ongoing disability suffered by sary corollary of personal freedom: the respon- Robbins directly because of that refusal? sibility to live with the consequences of one's The insurance company, Meritor Capital choices? This principle is also found in the Resources, argued that Robbins had a duty to mit- American legal system under the name igate, or lessen, her injuries when she could rea- "assumption of the risk," which states that a sonably do so. But because she refused an oppor- person cannot recover from another when he or tunity to reasonably lessen the damage from her she knowingly "assumes the risk" that the other injuries, the company argued that it should not person may present to him or her. This princi- have to pay for the results of that choice. ple prevents one from suing if you sprain or Molitor had good legal precedent. The law fracture your ankle while playing basketball, requires that a person injured by the acts of even if the injury is caused by the negligence of another take reasonable steps to mitigate, or another player. Before entering the court, you prevent a worsening of, those injuries. If such knew that basketball was a lively game with a Though it steps are not taken, the person causing the fair amount of incidental contact. By playing, injury can be held responsible only for the ini- you accepted the risk that you may sprain your was Robbins' First tial injury and not for any damage caused by the ankle or worse. The logic is that as you volun- injured person's failure to act reasonably in a tarily and knowingly placed yourself in the way Amendment way that would prevent worsening of the situa- of the possible negligence of others, you cannot tion. Often a jury is called on to decide whether sue even if they negligently injure you. right to refuse surgery, an injured person has done all he or she reason- An application of this doctrine may have ably should have done to treat his or her been appropriate in Robbins' case. To decide if should the insurance injuries. Robbins had assumed the risk of her choices, But here's where the insurance company ran the jury would not have had to assess the rea- company have into a church-state problem. Because Robbins' sonableness of her beliefs. Rather they would decision had been based on her religious convic- merely have had to decide if Robbins knew that to pay for the ongoing tions, the jury would be asked to decide if forgoing surgery could lead to further suffering Robbins' religious convictions and beliefs were and disability, and that she knowingly and vol- disability suffered reasonable. untarily chose to accept this possibility. If they Yet the trial judge was troubled by the idea of had seen the matter this way, they could have by Robbins a jury passing judgment on the reasonableness made Robbins accept the consequences of her of someone's religious beliefs. The Supreme religious choices rather than place those conse- directly because of Court had prohibited juries from passing judg- quences on her insurance company. This ment on the "plausibility of a religious claim" approach would have satisfied the protections that refusal? (see page 28). The trial judge ruled that the insur- of the Free Exercise clause while avoiding the ance company could not argue against the rea- apparent unfairness of imposing the conse- sonableness of Robbins' choice, because it was quences of one person's religious choices on a based on religion. The company would have to third party. take Robbins and her belief system as it found All major Western religions teach that what a them, those of a devout Jehovah's Witness. The man sows, that shall he also reap. They teach court thus ordered that the insurance company personal accountability and responsibility, and would have to pay for all Robbins' damages, that the moral choices that people make will without regard to her refusal of surgery. impact both their earthly lives and their eternal This decision showed a great deal of sensitiv- destinies. If those religious decisions have toxic ity to the protected status granted religious results, the decision-maker will live with the beliefs in the American constitutional system. consequences, at least partially in this life and The picture of a jury deciding the reasonable- fully in the next, according to the various ness or unreasonableness of anyone's religious beliefs. But meanwhile, in this life, the insur- convictions is, indeed, troubling. Under this ance company had to pay Robbins $7,732,900, scenario, the moderate Protestant and Catholic quite a handsome sum for the religious choices would do well, but the Hare Krishna, the of another. Christian Scientist, or the Hindu would likely be denied justice—not an acceptable outcome in Nicholas P. Miller is an attorney in our society of equality under the law. Washington, D. C.

ILLUSTRATION BY TROY THOMAS LIBERTY JULY/AUGUST 1997 27 United States v. Ballard

1=1

n 1944 the U.S. Supreme Court handled be beyond the ken of mortals does not mean one of its most interesting cases, United that they can be made suspect before the law. States v. Ballard. Guy and Edna Ballard Many take their gospel from the New were accused of fraud for claiming that Testament. But it would hardly be supposed 1they could—by virtue of supernatural pow- that they could be tried before a jury charged ers—heal disease and other ailments and with the duty of determining whether those injuries. In the lower court case, the trial judge teachings contained false representations. instructed the jury that they should not decide The miracles of the New Testament, the divin- whether the Ballard claims were true, but only ity of Christ, life after death, the power of if the Ballards believed them to be true. The prayer, are deep in the religious convictions of Supreme Court upheld that decision, saying many. If one could be sent to jail because a essentially that religious beliefs, no matter how jury in a hostile environment found those preposterous or seemingly unreasonable, were teachings false, little indeed would be left of not to be subject to judicial scrutiny. Below is religious freedom. The Fathers of the an excerpt from Justice Douglas's majority Constitution were not unaware of the varied opinion in Ballard. and extreme views of religious sects, of the "But on whichever basis that court rested violence of disagreement among them, and of its actions, we do not agree that the truth or the lack of any one religious creed on which verity of respondents' religious doctrines or all men would agree. They fashioned a char- beliefs should have been submitted to the ter of government which envisaged the widest jury. Whatever this particular indictment possible toleration of conflicting views. Man's might require, the First Amendment pre- relation to his God was made no concern of cludes such a course, as the United States the state. He was granted the right to worship seem to concede. 'The law knows no heresy, as he pleased and to answer to no man for the and is committed to the support of no dogma, verity of his religious views. The religious the establishment of no sect.' Watson v. Jones. views espoused by respondents might seem The First amendment has a dual aspect. It not incredible, if not preposterous, to most peo- only 'forestalls compulsion by law of the ple. But if those doctrines are subject to trial acceptance of any creed or the practice of any before a jury charged with finding their truth form of worship' but also 'safeguards the free or falsity, then the same can be done with the exercise of the chosen form of religion.' religious beliefs of any sect. When the triers Cantwell v. Connecticut. 'Thus the amend- of fact undertake that task, they enter a for- ment embraces two concepts—freedom to bidden domain. The First Amendment does believe and freedom to act. The first is not select any one group or any one type of absolute but, in the nature of things, the sec- religion for preferred treatment. It puts them ond cannot be.' Freedom of thought, which all in that position. 'With man's relations to includes freedom of religious belief, is basic in his Maker and the obligations he may think a society of free men. West Virginia State they impose, and the manner in which an Board of Education v. Barnette. It embraces the expression shall be made by him of his belief right to maintain theories of life and of death on those subjects, no interference can be per- and of the hereafter which are rank heresy to mitted, provided always the laws of society, followers of the orthodox faiths. Heresy trials designed to secure its peace and prosperity, are foreign to our Constitution. Men may and the morals of its people, are not inter- believe what they cannot prove. They may fered with.' So we conclude that the district not be put to the proof of their religious doc- court ruled properly when it withheld from trines or beliefs. Religious experiences which the jury all questions concerning the truth or are as real as life to some may be incompre- falsity of the religious beliefs or doctrines of hensible to others. Yet the fact that they may respondents."—Nicholas P. Miller

28 LIBERTY JULY/AUGUST 1997 AT LIBERIA

CIVIL DISCOURSE

BY VERNON L. ALGER

'low many memorable to-door contact, tent meetings, and for political power. The preachers If religion is to be the moral speeches have you heard other forms of religious evangelism can't write God's law in men's conscience of society, it must be in lately? Probably very few. are being ignored in favor of the hearts, so they try to get it written the role of teacher, through per- The eloquence of Tom electronic media, which—although in statute books. Unable to con- sonal persuasion, and not political Paine, Patrick Henry, and John F reaching the masses—doesn't carry vince people to act morally on their enforcer. Though organized reli- Kennedy has been replaced with the impact of a personal discussion. own, the preachers want to use the gion has the right to influence the sound bites, MTV, and Rush One result of the change in the law to force them instead. In so public square, it does not have the Limbaugh. way we communicate is that our doing, however, churches give up right to control it, to the point of The age of personal persuasion two-party political system is no the high ground. After all, attempt- enforcing religious dogma on the is past. We are a private, mobile longer effective because each elect- ing to use the power of the state nation through law. Americans society, frequently relocating to ed representative acts independent- instead of the power of the pulpit should follow the tenets of their areas where we know no one and ly of the other. When a majority doesn't say much for the power of faith because they have been per- rarely conversing with our neigh- cannot agree on any issue because the pulpit. suaded that it's true; not because bors. We leave the house to go to each representative has a different Abortion and school prayer are their church has resorted to the work and run errands, not much opinion, majority rule no longer prime examples. If churches could power of the government to force else; we exercise indoors on works. The result: gridlock. convince people that abortion is them. Unfortunately, even in an machines advertised on TV; we are Only when we communicate wrong, or that there is a better way, age of so-called "user-friendly" entertained in houses with large- personally can we have the full who would need the controversial churches, many people are no screen video centers; we hire others benefit of each other's knowledge legislation that is tearing the nation longer listening to what is being to do the yardwork; and with air and experience. So often we make apart? If churches could persuade said; so, frustrated, the churches conditioning, we don't even open the the mistake of thinking that parents to pray with their children are asking the government to do windows for fresh air when it's hot. because people are different, they in the morning at home, and to their job for them. But in this retreat from social are wrong. It's easy to be preju- teach them to pray privately during Sure, it's been a long time since discourse, Americans have also diced against a group—it's harder the day, who would need to legis- we've had a Patrick Henry or a ceased to practice civil discourse. to be prejudiced against an individ- late prayer in schools? It has John F. Kennedy. Too long, in fact. Individual religious and political ual we know personally. been said that when liberal church- freedom is the essence of the The result of this change in es can't get what they want by per- American ideal, and a sharing of how we communicate is especially suasion, they go to court; and ideals, ideas, and beliefs is neces- apparent in the church. Still our when conservative churches can't, Vernon L. Alger, Esq., is director of sary to preserving those freedoms. nation's best source of moral guid- they go to Congress. public affairs and religious liberty Personal persuasion of belief, door- ance, the church must have a place A sad commentary on both, to for the Lake Union Conference of in the public square. But organized be sure. Seventh-day Adventists in Berrien religion seems to have abandoned Springs, Michigan. the use of personal moral persua- sion and replaced it with a quest

LIBERTY JULY/AUGUST 1997 29 OBITER

JUSTICE KENNEDY'S

"NOTORIOUS MYSTERY PASSAGE"

hough U.S. Supreme Court briefs dation of subjectivism" that paves have been seen as sweeping sum- are rarely noted for prosody or the way for drug abuse, assisted mary of classical conservatism. style (who confuses Macbeth with suicide, prostitution, and "virtually Putting aside the actual Casey deci- McCollum or Lycidas with anything else": George Will said it sion itself (which is problematic Lemon?), occasionally a phrase or was "gaseously" written; Michael enough)—it's hard to see how in section achieves popular renown. Uhlman labeled it a "thing of almost principle (as opposed to the appli- The most recent example is U.S. infinite plasticity"; the editors of cation) any freedom-loving Supreme Court Justice Anthony First Things called it the "notorious American, especially a classical Kennedy's immortalized words in mystery passage"; and on and on. small-government-lower-taxes-gun- Casey: "At the heart of liberty is the Yet it's ironic that mostly politi- owning-strong-military conservative right to define one's own concept cal conservatives attack it, because could reject Kennedy's basic mes- of existence, of meaning, of the at the heart of Justice Kennedy's at- sage. universe, and of the mystery of the-heart statement is the essential "Our law affords," the justice human life." message of political conservatism, began the paragraph containing the Though sounding more like a and that is personal liberty. infamous phrase, "constitutional discourse on Spinozean meta- On the surface all this meta- protection to personal decisions physics than on constitutional physical "universe," "meaning," and relating to marriage, procreation, jurisprudence, this sentence has "existence" stuff does sound like contraception, family relationships, reached the level of notoriety something uttered from a channel- child rearing, and education." For a among judicial and political conser- er or from Shirley McClaine (Judge nation that prides itself on freedom, vatives that "separate but equal" Robert Beezer of the U.S. Court of what else could the justice have once did among civil libertarians, or Appeals said that the phrase can— said? "Our cases recognize 'the "material substratum" did among especially out of context—sound right of the individual, married or post-Enlightenment idealists. "so broad and melodramatic as to single, to be free from unwarranted No U.S. Supreme Court dictum seem almost comical in its rhetori- intrusion into matters so funda- in decades has faced such vilifica- cal flourish"), but what Kennedy mentally affecting a person as the tion as has poor Justice Kennedy's says does, in fact, encapsulate decision whether to bear or beget a 28 words. Robert Bork called the basic Jeffersonian conservatism, child.' Our precedents 'have phrase indicative of "New Age and had Kennedy written the sen- respected the private realm of fami- jurisprudence"; William Bennett tence in dissent to Casey's affirma- ly life which the state cannot derided it as an "open-ended vali- tion of abortion "rights" (which is at the heart of the rancor over the dictum), this same quote would

30 LIBERTY JULY/AUGUST 1997 enter.'" Again, what better summa- relationship to God," he would have rizes the essence of classical con- been saying the same thing while no servatism? "These matters, involv- doubt sparing himself the ridicule 0 ing the most intimate and personal that the phrase itself, especially choices a person may make in a taken out of context, has engen- lifetime, choices central to personal dered. On the other hand, perhaps dignity and autonomy, are central to Kennedy purposely used desacral-

the liberty protected by the ized language in order to avoid the CO

Fourteenth Amendment." Next problems caused by such state- APHIC. comes the "mystery" passage: "At ments as Justice Douglas's oft-cited the heart of liberty is the right to line in McCollum: "We are a reli- GEOGR define one's own concept of exis- gious people whose institutions pre- NATIONAL

tence, of meaning, of the universe, suppose a Supreme Being" (a EY, AIL and of the mystery of human life." phrase that Douglas supposedly was B JOE Y

And he ends the paragraph with later sorry he made). B this: "Belief about these matters Whatever his motives, Kennedy's PH

could not define the attributes of "notorious mystery passage" is nei- OTOGRA PH personhood were they formed ther notorious nor a mystery; it is, under the compulsion of the state." instead, a politically correct expres- Whether the "right" to an abor- sion of the best principles of a peo- "At the heart of liberty is the right to define tion appropriately expresses this ple who considered rights of con- one's own concept of existence, of meaning, philosophy is surely an open ques- science so fundamental to how they of the universe, and of the mystery of human tion. But so often what's attacked is wanted to live that they framed a life."—JUSTICE ANTHONY KENNEDY the phrase itself, as if those words Constitution to protect those rights. somehow were blatantly hostile to The mystery, instead, is why those sacred constitutional principles. Yet who profess to believe in those despite their somewhat otherworldly same rights should find the passage tone, they clearly reflect the essence so notorious. of what a government designed to Interestingly enough, Kennedy's protect the religious rights—indeed, words aren't even original. Rather all the rights—of its citizens should they reflect the dictum of a Supreme be about. Court majority opinion written In fact, "one's own concept of almost 50 years earlier, in which existence, of meaning, of the uni- Justice Felix Frankfurter included his verse, and of the mystery of human own "mystery" passage: "Certainly life" depicts, essentially, religious the affirmative pursuit of one's con- ideals. After all, what is religion if victions about the ultimate mystery not an attempt to explain existence, of the universe and man's relation to the universe, and human life? Had it is placed beyond the reach of S Kennedy used more Judeo-Christian law." The case? phraseology, like "one's own con- Minersville V. Gobitis (1940). 8 0 cept of Deity, of Creation, of man's

"Certainly the affirmative pursuit of one's convictions about the ultimate mystery of the universe and man's relation to it is placed beyond the reach of law."—JUSTICE FELIX FRANKFURTER

LIBERTY JULY/AUGUST 1997 31 Nonprofit Organizat LIBERTY US Postage 55 W Oak Ridge Drive PAID Hagerstown MD 21740 Hagerstown MD Permit 261

ADDRESS CORRECTION REQUESTED

t's 4*,

he 'establishment of religion' clause of

the First Amendment means at least

this: Neither a state nor the federal government

can set up a church. Neither can pass laws which

aid one religion, aid all religions, or prefer one reli-

gion over another. Neither can force nor influence

a person to go to or to remain away from church

against his will or force him to profess a belief or

disbelief in any religion. . . . S The First Amendment

has erected a wall between church and state. That

wall must be kept high and impregnable. We could

not approve the slightest breach."

HuGo L. BLACK (1886-1971) U.S. Supreme Court justice, writing the majority opinion in Everson v. Board of Education, 330 U.S. 1 (1947).