Or to put it the other way, if the law can afford a religious exemption here,
it is because a forbidden punishment is doing the child no real harm. But in
that event, the law has probably drawn the line at the wrong place for
everybody.
Quoting "Volokh, Eugene" <vol...@law.ucla.edu>:
> 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.
>
Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI 48109-1215
734-647-9713
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