The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Charles Napier, a 19th century official of the British Empire in India, well understood the limits of cross-cultural tolerance. When told by Hindu leaders that it would be inappropriate for him to interfere with the "national custom" of burning widows alive on their husband's funeral pyre, he responded:
Be it so. This burning of widows is your custom; prepare the funeral pile. But my nation has also a custom. When men burn women alive we hang them, and confiscate all their property. My carpenters shall therefore erect gibbets on which to hang all concerned when the widow is consumed. Let us all act according to national customs.
Napier, by the way, was no Anglo-chauvinist. To the contrary, he was considered an Indophile. But he knew where to draw the line.
Here in the United States, we have a longstanding custom concerning female genital mutilation: We abhor it. Indeed, it is a federal offense to perform it on minors. But when the Maine Legislature had the opportunity to criminalize such behavior under state law as well, the bill failed on essentially a party-line vote. Some of the arguments against it make me wonder if Maine Democrats haven't taken cross-cultural tolerance—if that's what it is—a step too far.
To set the stage, I should say that Maine has a significant Somali community and that female genital mutilation is widely practiced in Somalia as well as many (but by no means all) Muslim and non-Muslim areas in Africa. It is also practiced to a lesser extent in Muslim areas elsewhere and probably in some non-Muslim areas too. During the public debate over the bill, one commentator said the bill existed only to appease "the largest anti-Muslim hate group in the US." Another called the bill "incredibly racist," arguing that "there are many different cultures and each group of people has a different reason for doing this. Maine Democrats said they were worried about alienating the Somali community.
But does anyone really think that Maine Republicans would be fine and dandy with female genital mutilation if it had been adopted as a practice by local Methodists? I can't imagine that. The notion that the bill was intended as a gratuitous slap in the face to Somalis seems very odd to me. The intention seems to be to stop female genital mutilation.
Other arguments cited by Maine Democrats for opposing the bill seemed to be makeweight. For example, some claimed that because there is a federal statute already, there is no need for a Maine statute. But the Maine bill actually went beyond the federal statute by outlawing Maine residents from transporting girls over state lines for the purpose of female genital mutilation. Moreover, policing this kind of activity is much more the traditional province of state prosecutors. Federal prosecutors have enough on their hands.
Similarly, some argued that the Maine criminal code already covers the practice in outlawing "aggravated assault." Yet the Maine Prosecutors Association, which supported the bill, has pointed out that a successful prosecution for aggravated assault would be very difficult, since the parents ordinarily consent to female genital mutilation. That point makes a lot of sense. Note that piercing a child's ears without parental consent is ordinarily a criminal assault, but with that consent it is not. The law allows parents to make most decisions on behalf of their children, but a few of those decisions are over the line. The best way for Maine to decide when parents can consent on behalf of their minor children and when they cannot is to pass specific statutes that identify when parental consent is void. This is essentially what the bill did.
The ACLU of Maine opposed the bill as "nothing more than an attempt to single out behavior that is commonly attributed to certain religious and ethnic communities as different from other forms of abuse." But the prosecutors' point is that singling out behavior is a good thing in this context. Drawing the line on when a practice is so abhorrent (and permanent) that parents should not be able to consent to it on behalf of their minor children is a judgment better made by a legislature before the fact than by a judge or jury after the fact.
A third argument put forth by Maine Democrats was that there is no evidence that female genital mutilation is occurring in Maine. But there is. "People ask, 'Is this happening in Maine?"" Maine Governor Paul LePage said during a press conference on the bill. "The answer is simply, 'Yes.' Doctors and nurses in Maine have seen the brutal results either on the examining table or in the emergency room after it has gone horribly wrong." State Rep. Heather Sirocki also says that she has had conversations with Maine hospital personnel that are seeing the results. Evidently the State has had to pay the medical costs for some of the cases where things went wrong. All this is consistent with arrests being made in Minnesota and Michigan.
If there were better reasons to oppose the bill, I have not heard them articulated by the Maine legislators.
I am not saying that Americans should stamp out all cultural practices of recently-arrived immigrant groups with which they disagree. Our nation of immigrants can't function without a large measure of cross-cultural toleration. But there have to be limits. For Napier, it was burning widows (which, mercifully, was a rare practice in his time) and slavery (which, alas, was more common).
Maine Democrats claim to oppose female genital mutilation (and perhaps they do), but they lacked the intestinal fortitude to criminalize it. Instead, in an effort to save face, they put forth a pathetically watered down version of the bill, lacking any enforcement mechanism. If Maine isn't willing confidently to draw the line at female genital mutilation of young girls, when will it ever have enough confidence in its own principles to enforce them?