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On the supposed distinction between culture and religion: A comment on Sir James Munby’s decision in the matter of B and G (children)

On the supposed distinction between culture and religion: A comment on Sir James Munby’s decision in the matter of B and G (children)

By Brian D. Earp (@briandavidearp)

Introduction

What is the difference between ‘culture’ and ‘religion’ … ? From a legal standpoint, this question is important: practices which may be described as being ‘religious’ in nature are typically afforded much greater protection from interference by the state than those that are understood as being ‘merely’ cultural. One key area in which this distinction is commonly drawn is with respect to the non-therapeutic alterations of children’s genitals. When such alteration is done to female children, it is often said to be a ‘cultural’ practice that does not deserve legal protection; whereas, when it is done to male children, it is commonly said to be a ‘religious’ practice – at least for some groups – and must therefore not be restricted (much less forbidden) by law.

Is this a valid distinction?

Background

First, a little background. Last month, a senior British judge — Sir James Munby — handed down a landmark decision concerning ‘female genital mutilation’ or ‘FGM’ (Munby, 2015). In it, he avers that even ‘minor’ forms of ‘FGM’ – such as ritual nicking of the clitoral hood, which does not remove any tissue – constitute ‘significant harms’ in the eyes of the law. As I have argued previously on this blog (Earp, 2014a), as well as elsewhere (Earp, 2013; Earp, 2015; Earp, in press; Earp, under review; Earp & Darby, 2014), such a view has serious implications for the practice of male circumcision.

The views, opinions and positions expressed by these authors and blogs are theirs and do not necessarily represent that of the Bioethics Research Library and Kennedy Institute of Ethics or Georgetown University.