Eighth Circuit
Court of Appeals
FGM Laws Are Sexist--Appeals--Page 2

On this page:
Judgment of the Eighth Circuit Court of Appeals
Plaintiffs' Notes on the Appeal's Oral Arguments.

North Dakota has a statute that makes so-called "female circumcision," perhaps better described as female genital mutilation, a crime. N.D. Century Code--12.1-36-01. Circumcision of males, however, is not prohibited. The three plaintiffs in this case contend that the State is in violation of the Equal Protection Clause of the Fourteenth Amendment on account of this distinction.

The plaintiffs are Donna Fishbeck, Jody McLaughlin, and Duane Voskuil. McLaughlin and Voskuil have no standing under any theory. Their convictions are sincere, and they are knowledgeable on the subject, but they have no personal stake in the outcome of this case, one way or the other. They are simply interested in the subject as a matter of public policy. This sort of interest is not sufficient to create a case or controversy for purposes of Article III of the Constitution

Donna Fishbeck has a more personal kind of interest. After the effective date of the statute, her baby son was circumcised. The father consented to this procedure, but Ms. Fishbeck did not. She believes that the circumcision of males is just as wrong as that of females, and that the State is at fault for not treating the two procedures equally. Still, we do not see that the plaintiff Fishbeck has standing to invoke the federal judicial process. The injury that her son has received, if it is an injury, is in the past. Nothing that happens in this lawsuit can change it.  Similarly, there is no measurable likelihood that the situation will recur in the future. It is always possible that Fishbeck will have another child, that the child will be male, that the father will again wish the child to be circumcised, and that the mother will, for some reason, be unable to prevent the procedure. The likelihood of these events' occurring, however, is completely speculative. There is no way to predict that they will occur, and no way to assess the likelihood of such an occurrence.

Accordingly, this case must be dismissed for lack of standing. Even if we were to declare the North Dakota statute invalid because it is underinclusive, and even if, in addition, as plaintiffs request, we could enter some kind of decree that would criminalize male circumcision, there is no assurance at all that the injury claimed by Fishbeck, either on her own behalf or on behalf of her son, would be redressed. The legal victory would be wholly abstract, so far as Fishbeck is concerned. There is no claim for damages, a claim that would apparently, in any case, be barred by the Eleventh Amendment. (endnote 1)

The District Court (endnote 2) dismissed the case for lack of standing. We agree, and the judgment is Affirmed.

A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

(1) We need not decide whether the Eleventh Amendment would bar the relief sought in this case, because we are dismissing it for lack of Article III standing.

(2) The Hon. Patrick A. Conmy, United States District Judge for the District of North Dakota.

Plaintiffs' Attorney's Notes on the Appeal's Oral Arguments
taken before the Judgment above was handed down:

The following are Zenas Baer's 1997 notes on the oral arguments of the appeal in the 8th Circuit Court of Appeals in St. Paul, MN. Notes taken immediately after the oral arguments by Duane Voskuil and Jody McLaughlin., May 1997, follow:

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MEMORANDUM

From:     Zenas Baer  
Date:      May 20, 1997
Subject: Fishbeck et al. v. State of North Dakota  

Oral Argument - Eighth Circuit Court of Appeal

Our case was the third case scheduled for oral argument on Monday,May 19, 1997, before Chief Judge Richard Arnold, Judge Morris Shepard Arnold, and Judge Pasco Bowman. Morris Shepard Arnold is the Republican(Bush appointee); Pasco Bowman is a Reagan appointee; and Richard Arnold isa Carter appointee.         

My strategy on argument was to begin with the cultural basis for the passage of the restrictive law and why it is difficult for our society to look into our own culture and try to critically analyze our culture and  what we do to young baby boys without giving it adequate consideration.         

I told the judges that in my discussions about the circumcisionissue, I was greeted with two responses. The first was, "oh my gosh," aguilt response that parents have who had their children circumcised, but  now regret having done so; and the second more common response is a defensive posture where parents who are circumcised are affronted by the suggestion that they may have lost some of their sexuality as a result of the surgical amputation.          

I then launched into a discussion that our position is that it ismorally unacceptable to surgically alter female or male genitalia unless there is a medical reason.         

When mentioning the moral opposition to either male or femalegenital mutilation, Chief Judge Arnold suggested that we are dealing withAbraham. I responded that the Jewish religion and the Muslim religion do accept, as a sacrifice to Abraham, the surgical removal of the foreskin but that in our society, sacrifice of another is not acceptable.   

Thereafter, I discussed the background of the passage of the statute, namely, the influx of immigrants from Africa and the Mideast who brought with them their
thousands-of-year-old customs which included, not only circumcision of adolescent boys as a rite of passage into manhood, but  also something else unknown to our culture, genital mutilation of femaleinfants and children. The ND statute specifically states that it is not adefense that the mutilation of a girl is required by ritual, custom orstandard of practice. Then the discussion turned to whether or not it is acceptable for our culture to prohibit practices held by foreign cultures,  with equally rich traditions, just because our culture does not hold the same values.          

Chief Judge Arnold very quickly asked about the standing, to which  I responded that Jonathan's mother, Donna Fishbeck, objected to the  procedure but conceded to circumcision to keep harmony in the family andmaintain the marital relationship. Chief Judge Arnold also inquired as to  whether or not the absence of a statute would raise constitutional issues,  to which I responded, "no," the legislature is free to not regulate thispractice. But if it does regulate the practice, it must do so in aconstitutionally firm method.          

Judge Morris Shepard Arnold asked how I would propose the extension of the remedy be provided, and asked whether or not a copy of the completestatute was reproduced in the brief. I could not find it at the moment, but I indicated I thought it could be remedied, not by adding any language, but by striking only one word "female."         

During the State's argument, Morris Shepard Arnold once again came back to that issue and indicated he read the statute in my brief, and that it could be remedied by simply striking the word "female."         

During Douglas Bahr's presentation, Judge Morris Shepard Arnoldasked if the State could pass a law that banned mutilation or abuse of children and restrict it only to girls. Douglas Bahr admitted that thatwould not be constitutionally firm. Douglas Bahr made the same inane argument that because the genitalia of girls are different from boys, that the statute did not rise to an equal protection analysis.         

Additional questions were asked about whether or not the legislature discussed including boys, and I responded that in thelegislative history there is no indication of such a discussion, but that I  was told that the proponents of the bill attempted to have a gender neutral  bill introduced but could not find a full slate of sponsors. I further responded that irrespective of what the legislature did, the Court of Appeals must sit as a referee to determine whether or not they in fact applied the law in a constitutional fashion.         

Pasco Bowman asked why this should not be thrown back to the legislature to make the decision. I responded that the legislature had its opportunity and what it came up with was to arbitrarily divide based ongender and categorically ban surgical alteration [or separating senecial connections] of female genitalia, and do so without so much as discussing  the similarities of some forms of female genital mutilation and male circumcision.         

On balance, I believe the argument went very well. Pasco Bowman also asked Douglas Bahr whether or not this should be sent back for anevidentiary hearing to develop the facts and create findings. Douglas Bahr  responded that it should not because he was convinced that if it were sentback, the State would bring the same motion and it would be right back in the lap of the Eighth Circuit.         

 I was very pleased with the argument and the questions asked. In  response to the question concerning why the State did not pass a gender-neutral law, Morris Shepard Arnold said it was because of religion. The tone of his voice seemed to be critical of the religious aspects of circumcision. 

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The following are highlights of the Eighth Circuit Court of Appeals hearing (as recalled by Jody McLaughlin and Duane Voskuil) May 19, 1997, St. Paul, Minnesota.  Zenas Baer was the Attorney for the Plaintiffs, and Douglas Bahr, Assistant Attorney General of North Dakota represented the defendant. The judges were Richard S. Arnold, Chief Judge and Pasco Bowman II, and Morris S. Arnold.      

Two minutes into his presentation Attorney Zenas Baer was asked by Chief Judge Richard Arnold, "What about Abraham?" "What we are to do about Abraham?" Baer pointed out the ND FGM law does not allow discrimination on the basis of custom or ritual. Also, that Abraham's cutting was considered a sacrifice, and we in this country are not allowed to sacrifice others for our beliefs.    

The question of standing was raised. How does one have standing if one is already circumcised since what would be the remedy? And if one has not yet been circumcised, there is no need for a remedy. Baer, however, pointed out  that Donna Fishbeck could possibly have another son. This child would be in jeopardy unless the law is extended to cover males. This point of  repetition seemed to make sense to the judges. Zenas also cited the extension of Social Security survivors' benefits to widowers as well as widows as an example of how the law could be extended to cover the excluded group, rather than merely striking down the law.      

During Douglas Bahr's arguments for the State of ND, he attempted to strengthen the State's case by saying the precedents outlined by Zenas Baer concerned federal, not state law. Bahr's concerns in this regard seemed not to be shared by the judges.    

Judge Pasco M. Bowman asked Bahr, "If this were a statute enacted to protect only females from child abuse, would it be unconstitutional? "Yes" was Douglas Bahr's answer. The ND law in question does protect minor females from genital abuse, so it would appear that the State of North  Dakota is in agreement regarding the constitutionality of a law which protects only one gender. We were reminded of Pat Schroeder's statement in the congressional record that circumcision is not mutilation unless you consider it amputation [which of course it is]--as she spoke in support of the Federal FGM bill.      

Bahr's statement that the law can legally discriminate between the sexes because the sexes are "differently situated," that is, their sexual organs are different, appeared not to be a significant argument in the judges'  minds.      

The concern was raised that extending the law to cover males would require a re-write of the statute (something courts are reluctant to do, one judge observed). However, Morris Arnold agreed with Baer, after quickly reading  the concise, nine-line statute, that all the court need do is to strike the  one word, "female," to remedy the law.      

During the State's arguments wherein Bahr tried to convince the judges that the legislature obviously did not want males protected, Judge Morris Arnold told Bahr that he doubts Bahr or anyone is capable of reading the minds of the legislators for their intent or motivation.       

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