Did the Supreme Court’s Hobby Lobby decision render the Female Genital Mutilation Act of 1995 null and void? While the Supreme Court specifically mentioned that their decision only applied narrowly to contraception mandated by the ACA, the bulk of the opinion and reasoning centered on the fact that the Religious Freedom and Restoration Act of 1993 (RFRA) applied equally to individuals and private for-profit corporations. From reading the decision’s logical conclusions, it is hard to see how the Female Genital Mutilation Act of 1995 wouldn’t similarly be found unenforceable if a family or church required the circumcision of girls as a religious practice.
Is female circumcision part of religious freedom?
The “Federal Prohibition of Female Genital Mutilation Act of 1995” expressly mentions-
“(c) In applying subsection (b)(1), no account shall be taken of the effect on the person on whom the operation is to be performed of any belief on the part of that or any other person that the operation is required as a matter of custom or ritual.”
In other words, religious and cultural practices are no excuse for female circumcision. See The Female Genital and Cutting Education and Networking Project
Supreme Court cites religious freedom exclusion
However, the Supreme Court quoted the Religious Freedom Restoration Act of 1993 as a foundation for excusing Hobby Lobby and other “closely held” for profit companies from having to comply with the federal mandate on contraception.
RFRA provides that “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” §2000bb–1(a).2 If the Government substantially burdens a person’s exercise of religion, under the Act that person is entitled to an exemption from the rule unless the Government “demonstrates that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” §2000bb–1(b).3
Down load the full text of the Supreme Court’s decision in Burwell v Hobby Lobby at end of post.
Mistaken and unreasonable religious beliefs are covered by RFRA
A scary part of the rational was that the Supreme Court has abdicated any moral judgment of the actions on the part of the plaintiffs seeking relief from federal laws
But RFRA’s question is whether the mandate imposes a substantial burden on the objecting parties’ ability to conduct business in accordance with their religious beliefs. The belief of the Hahns and Greens implicates a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is immoral for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another. It is not for the Court to say that the religious beliefs of the plaintiffs are mistaken or unreasonable. In fact, this Court considered and rejected a nearly identical argument in Thomas v. Review Bd. of Indiana Employment Security Div., 450 U. S. 707. The Court’s “narrow function . . . is to determine” whether the plaintiffs’ asserted religious belief reflects “an honest conviction,” id., at 716, and there is no dispute here that it does. Tilton v. Richardson, 403 U. S. 672, 689; and Board of Ed. of Central School Dist. No. 1 v. Allen, 392 U. S. 236, 248–249, distinguished.
The sentence that really jumps out and grabs a person by the throat is “It is not for the Court to say that the religious beliefs of the plaintiffs are mistaken or unreasonable.” Yes, it is the Court’s discretion to pass judgment on whether religious activities are mistaken or unreasonable. I can’t see how the Supreme Court would allow a human sacrifice as part of a religious practice. Human sacrifices are generally consider an unreasonable expression of one’s religious faith. They would surely determine that RFRA does not give an individual, church or corporation the green light to carry out human sacrifices. Since circumcision only mutilates a non-consenting girl or boy, it sounds as if the Court would give an individual, church or corporation clearance to cut the genitals as prescribed in their religious texts or traditions.
Only birth control is subject to religious freedom
The Supreme Court tried to give themselves cover by inserting a “limited applicability” clause.
(3) This decision concerns only the contraceptive mandate and should not be understood to hold that all insurance-coverage mandates, e.g., for vaccinations or blood transfusions, must necessarily fall if they conflict with an employer’s religious beliefs. Nor does it provide a shield for employers who might cloak illegal discrimination as a religious practice.
To me, this is nothing different than a Presidential signing statement before he or she signs legislation. The Supreme Court is trying to manipulate how their decision will be applied and interpreted because they understand the inherent broad implications of their ruling.
Hobby Lobby now open in Guantanamo Bay
I am neither a constitutional or religious scholar. I am simply a layperson looking at the facts. If a doctor or family was ever prosecuted for the illegal act of female genital mutilation or circumcision, they would surely use the latest Supreme Court decision as part of their defense. We are already witnessing this as the lawyers for the Guantanamo Bay detainees cited Burwell v. Hobby Lobby in their appeal to allow communal prayer sessions during Ramadan which have denied for security reasons. The lawyers are arguing that RFRA protects all individuals and corporations as cited by the Supreme Court in their recent decision.
Will routine infant male circumcision benefits be challenged?
Conversely, an employer may balk at having to pay for benefits associated with the circumcision of baby boys. Many health plans will cover routine infant male circumcision if performed within the first 31 days of birth. If an employer finds paying for this coverage a violation of their religious freedom, can they then not pay for the benefit under RFRA and the Supreme Court’s ruling? As speculated by the Center for American Progress in their article “Discrimination? Corporate Loopholes? Law Avoidance? Hobby Lobby’s Potentially Slippery Slope” we may witness a variety of lawsuits claiming federal laws infringe on the religious liberties of employers.
No employee rights for “those people” either
The LGBT website Queerty.com speculated about five different scenarios that might occur as a result of the Hobby Lobby decision on religious freedom.
- Corporation refuse benefits to same-sex married couple.
- Businesses refuse to hire any openly LGBT employees.
- Company objects to providing HIV prevention drugs.
- Transgender people are excluded from medical benefits.
- Proposed executive order banning workplace discrimination by federal contractors could be jeopardized.
Pushing the envelope on religious freedom exclusions
Even though the Supreme Court explicitly held that their decision was not to be applied to employment, it is hard to imagine that a religiously homophobic employer coupled with a an equally fervent attorney wouldn’t plant the flag of sexual orientation discrimination as allowed under RFRA and the Hobby Lobby decision. The litigation would take years to get through the courts and cost millions in damages and lost wages. From female genital mutilation to issues of lifestyles that are religiously offensive to some employers, the Supreme Court’s Hobby Lobby decision will echo for years to come in our court system as individuals and corporations seek to avoid federal civil rights legislation that they just don’t want to comply with.
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