On this page:
of the Eighth Circuit Court of Appeals
Plaintiffs' Notes on the Appeal's Oral
Judgment Handed Down in 1997 by the
States Court of
for the Eighth Circuit
Donna Fishbeck, Individually, and as Mother and Natural
Guardian of her Infant Son, Jonathan Fishbeck;
Jody McLaughlin; and Duane Voskuil, Ph.D.,
On Appeal from the
States District Court
or the District of North Dakota.
State of North Dakota,
Submitted: May 19, 1997
Filed: June 3, 1997
Before RICHARD S.
ARNOLD, Chief Judge,
BOWMAN and MORRIS SHEPPARD ARNOLD, Circuit Judges.
RICHARD S. ARNOLD, Chief
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
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.
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.
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:
May 20, 1997
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
(Bush appointee); Pasco Bowman is a Reagan appointee;
and Richard Arnold is
a Carter appointee.
My strategy on
argument was to begin with the cultural basis for what we do to
young baby boys without giving it adequate consideration.
the passage of the restrictive law and why it is difficult for our
to look into our own culture and try to critically analyze our culture
I told the judges
that in my discussions about the circumcision now regret having
done so; and the second more common response is a
issue, I was greeted
with two responses. The first was, "oh my gosh," a
response that parents have who had their children circumcised, but
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 is
unacceptable to surgically alter female or male genitalia unless
there is a medical reason.
the moral opposition to either male or female
Chief Judge Arnold suggested that we are dealing with
responded that the Jewish religion and the Muslim religion do
accept, as a sacrifice to Abraham, the surgical removal of the foreskin
that in our society, sacrifice of another is not acceptable.
discussed the background of the passage of the also something
else unknown to our culture, genital mutilation of female
statute, namely, the influx of immigrants from Africa and the
brought with them their
thousands-of-year-old customs which included, not
circumcision of adolescent boys as a rite of passage into manhood, but
and children. The ND statute specifically states that it is not a
that the mutilation of a girl is required by ritual, custom or
of practice. Then the discussion turned to whether or not it is
acceptable for our culture to prohibit practices held by foreign
with equally rich
traditions, just because our culture does not hold the
Chief Judge Arnold
very quickly asked about the standing, to which whether
or not the absence of a statute would raise constitutional issues,
responded that Jonathan's mother, Donna Fishbeck, objected to the
conceded to circumcision to keep harmony in the family and
the marital relationship. Chief Judge Arnold also inquired as to
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
Shepard Arnold asked how I would propose the extension but by striking
only one word "female."
of the remedy be provided, and asked whether or not a copy of the
statute 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
During the State's
argument, Morris Shepard Arnold once again came
back to that issue and indicated he read the statute in my brief,
it could be remedied by simply striking the word "female."
Bahr's presentation, Judge Morris Shepard Arnold children and
restrict it only to girls. Douglas Bahr admitted that that
asked if the State
could pass a law that banned mutilation or abuse of
not be constitutionally firm. Douglas Bahr made the same inane
argument that because the genitalia of girls are different from boys,
the statute did not rise to an equal protection analysis.
questions were asked about whether or not the legislature
discussed including boys, and I responded that in the was told that the
proponents of the bill attempted to have a gender neutral
history there is no indication of such a discussion, but that I
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 the similarities
of some forms of female genital mutilation and male
opportunity and what it came up with was to arbitrarily divide based on
and categorically ban surgical alteration [or separating senecial
connections] of female genitalia, and do so without so much as
On balance, I
believe the argument went very well. Pasco Bowman also
asked Douglas Bahr whether or not this should be sent back for an responded that it
should not because he was convinced that if it were sent
hearing to develop the facts and create findings. Douglas Bahr
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
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,
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 Baer pointed out the ND FGM law does not allow
discrimination on the basis
Richard Arnold, "What about Abraham?" "What we are to do
of custom or
ritual. Also, that Abraham's cutting was considered a
sacrifice, and we in this country are not allowed to sacrifice others
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 repetition seemed
to make sense to the judges. Zenas also cited the
been circumcised, there is no need for a remedy. Baer, however,
Fishbeck could possibly have another son. This child would be in
jeopardy unless the law is extended to cover males. This point of
extension of Social Security survivors' benefits to widowers as
widows as an example of how the law could be extended to cover
group, rather than merely striking down the law.
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
to be shared by the judges.
Judge Pasco M.
Bowman asked Bahr, "If this were a statute enacted towas Douglas Bahr's answer. The ND law in question does
protect only females from child abuse, would it be unconstitutional?
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
the congressional record that circumcision is not mutilation
consider it amputation [which of course it is]--as she spoke in support
of the Federal FGM bill.
that the law can legally discriminate between the sexesare different, appeared not to be a significant argument
in the judges'
because the sexes are "differently situated," that is, their
The concern was
raised that extending the law to cover males would require the concise,
nine-line statute, that all the court need do is to strike the
a re-write of the statute (something courts are reluctant to do,
observed). However, Morris Arnold agreed with Baer, after quickly
"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
told Bahr that he doubts Bahr or anyone is
capable of reading the minds of
the legislators for their intent or motivation.