I stress again that I'm not sure where the law should draw the
line between permissible discipline and criminal battery. It obviously must,
even if all spankings were outlawed, unless it becomes a crime even to pull a
child to his room, or to forcibly seize a toy from him; but where it should do
so, I don't know.
But this strikes me as among the least appealing cases for a
religion-specific exemption: If religious parents are entitled to an exemption
from battery law but secular parents are not, then this means that a child of
religious parents would have to suffer something that the law plausibly treats
as a battery, simply because he is the child of religious parents. That
strikes me as a very hard inequality to defend, which suggests that even if
we're under a strict scrutiny exemptions regime, the government should be able
to claim a compelling interest in giving all children equal protection against
something that the law sees as battery, whether or not there's a compelling
interest in preventing the battery in the first place.
Eugene
Vance Koven writes:
While in principle Eugene is right that whether the state intervenes shouldn't
be determined by whether the parent is acting out of religious or secular
motives, it is only in the case of religiously motivated parents that there is
a legal hook on which to hang an interest in parenting methodology that
requires the state to justify itself on the basis of compelling
interest--unless you can engineer a free speech interest, which seems to me a
stretch. It would be ironic indeed if the justification for parental authority
is the concept of privacy.
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