April 14th, 2017

One more thing about religion and law

To yesterday’s discussion of the question of how to legally define “religion,” I want to add one thing, which is that the definition primarily relates to the privileges and protections enjoyed by religions. That is, the legal definition tells you what group can claim tax-exempt status as a religion, or the ability to be a conscientious objector (if that’s part of the religion’s dictates), or that sort of advantage.

It does not apply to the commission of crimes, which are crimes even if the perpetrator cites a religious belief in defense. To take a very obvious example, a terrorist can’t try to use a defense that he read that Islam dictates that he murder people. Nor can Muslim family members who killed a daughter because in their eyes she violated its honor claim any religious defense. We recently have the first federal prosecution of a female genital mutilation case, which is a federal crime in the US and a state crime in many states as well (FMG is both a cultural and a religious phenomenon among those who practice it, who are most commonly Muslims, many of whom believe it to be a religious prescription whether it actually is or not):

Performing FGM on anyone under the age of 18 became illegal in the U.S. in 1997 with the Federal Prohibition of Female Genital Mutilation Act. As of 2015, 24 US states have specific laws against FGM. States that do not have such laws may use other general statutes, such as assault, battery or child abuse. Supported by Equality Now, the Transport for Female Genital Mutilation Act was passed in January 2013, and prohibits knowingly transporting a girl out of the U.S. for the purpose of undergoing FGM.

The first conviction of FGM in the US occurred in 2006. Khalid Adem, an Ethiopian American, was both the first person prosecuted and first person convicted for FGM in the United States…

A doctor working at the Henry Ford Hospital in Detroit was charged in April 2017 after allegedly performing FGM in a medical clinic in Livonia, Michigan, on two girls who traveled there from Minnesota with their parents.

A Christian who murders an abortion doctor cannot use his/her religious beliefs to successfully defend him/herself legally; the murder is a murder. A Christian Scientist risks being charged with various types of abuse or negligence if the refusal to seek medical help for a child causes serious negative consequences for that child. And if Hindus in the US were still encouraging widows to jump on the funeral pyres of their husbands (which they are not; the British banned the practice in India long ago during colonial days), you best believe that they’d be paying a legal price.

In this matter it’s instructive to go back to India and the famous words of General Sir Charles James Napier:

The [Hindu] priests [in colonial India] complained to [Napier] that [suttee or sati] was a customary religious rite, and that customs of a nation should be respected. As recounted by his brother William, he replied:

“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.”

Our legal system is more than a custom, of course. But Napier was correct in that what a nation regards as illegal and what it chooses to prosecute is at least in part a result of that nation’s customs and beliefs—customs and beliefs encoded in law and enforced by the entire panoply of police, prosecutors, judges, and prisons. Pleading “but it’s my religion” does not constitute a defense against crimes, because members of all religions are subject to the laws of the nation in which they live.

12 Responses to “One more thing about religion and law”

  1. Cornhead Says:

    I’m fairly positive that FGM is way, way underreported.

    Just another reason why Islam is fundamentally incompatible with Western civilization. A complete mystery to me why Dems embrace Islam other than their crass identity politics and desire for votes.

  2. Surellin Says:

    Fascinating. I was certain that suttee was a Parsi custom, rather than Hindu. But now, Hindu it is, according to Wiki. But I’ll wager tanything that I got that idea from Around the World in 80 Days. In the book, at least, I thought Aouda was Parsi. Well, live and learn

  3. Roy Lofquist Says:

    “It is old custom that enables people to live together peaceably; the destroyers of custom demolish more than they know or desire. It is through convention—a word much abused in our time—that we contrive to avoid perpetual disputes about rights and duties: law at base is a body of conventions.”


  4. John F. MacMichael Says:

    Interesting that Napier threatened the priests not just with death by hanging but the loss of their property as well. Reminds me of Machiavelli’s advice in “The Prince” that a ruler who found it necessary to execute his opponents should be cautious about confiscating their property as well. Since, as he pointed out with sublime cynicism, men are much more willing to forgive the loss of a father than that of an inheritance.

  5. J.J. Says:

    Could preaching violent jihad be a seditious conspiracy?

    From Wiki:
    “For a seditious conspiracy charge to be effected, a crime need only be planned, it need not be actually attempted. According to Andres Torres and Jose E. Velazquez, the accusation of seditious conspiracy is of political nature and was used almost exclusively against Puerto Rican independentistas in the twentieth century.[1] However, the act was also used in the twentieth century against communists and radicals (United Freedom Front,[2] the Provisional IRA in Massachusetts), neo-Nazis,[3] and Islamic terrorists including Omar Abdel-Rahman.[4] This is irrespective of the state sedition laws, used to persecute hundreds of communists, socialists and labor leaders.[5]”

    Use it to get rid of the inciters/recruiters for jihad. Go after radical imams in U.S mosques and on line recruitment activities.

  6. neo-neocon Says:


    I think we need to be very careful about using sedition laws. But yes, I see no reason why preaching jihad couldn’t be attacked that way, at least in theory. Imans who do this in our country should be treated more harshly, although the left would no doubt object.

    The problem with using seditious conspiracy laws against imans preaching jihadi terrorism is that the laws don’t deal with advocating terrorism; they deal with advocating the overthrow of the government. See this:

    If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both.

    The proper recourse is probably not the sedition laws but some of the anti-terrorism laws.

  7. TommyJay Says:

    I guess we are still debating the earlier interesting post, but I think there are a number of laws (aside from sedition) that can be used to prosecute cases that don’t entail explicit actions.

    Conspiracy to commit (e.g. murder), Aiding and abetting, and RICO can all be used in “creative” ways. Mere knowledge and failure to report can be prosecuted. RICO sounds like it would be precluded in a “lone wolf” scenario, but what if that wolf rented a large murder weapon truck using money provided by a radicalized mosque? Even if the funds were provided for living expenses, but the imam was advocating “death to infidels,” might that not qualify for RICO prosecution on both ends of the money transfer?

  8. TommyJay Says:

    On the topic of this post, I am heartened to see that transport out of the U.S. for purposes of FGM is now a crime. Thanks for the details, as always.

    I’d like to add, that to us, all of these atrocities are just FGM. But to muslims there are two entirely different forms of FGM. I saw a quasi documentary and Q&A with the filmmaker about FGM in Egypt in the early 2000’s. According to her, there was/is a law in Egypt banning the stitching of labia shut and it enjoys 90+% support in the public. However, clitoridectomies were still very widespread. I don’t recall if the latter was illegal or not, but if it was, the law was largely ignored.

  9. J.J. Says:

    Neo, thanks for the insight. You’ve studied the law. I’m just a knuckle dragger looking for solutions. 🙂

  10. LTEC Says:

    You say, “It does not apply to the commission of crimes, which are crimes even if the perpetrator cites a religious belief in defense.”

    Not completely true. Some AmerIndians have the right to do otherwise illegal things, for religious reasons:

  11. neo-neocon Says:


    Those are special exceptions for very special situations. The general rule is as I stated.

  12. ErisGuy Says:

    What excuse is used by feminists who feed hormone blockers to children? Should be good for anyone mutilating children.

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Previously a lifelong Democrat, born in New York and living in New England, surrounded by liberals on all sides, I've found myself slowly but surely leaving the fold and becoming that dread thing: a neocon.

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