Vance-- I think what troubles me most about your posts on this topic is the assumption that a "highly influential social subset" is "insidiously'?raising the bar to protect children.??Who is in this "subset"?? In fact, the bar is being raised by those who are doing scientific research into child behavior and needs, the increasingly vocal survivors of child maltreatment, and those who are on the front lines working to create a more protective sphere for children, e.g., the National Association of Regulatory Agencies.? The American Academy of Pediatrics also?is on the leading edge of protecting children from harm, including in families.?? Vilifying those who are working out of a child-protective position does not legitimate a religious exemption.??
In any event, this?thread started with the?Wisconsin case involving the death of a child based on medical neglect, not corporal punishment or non-life-threatening treatment/procedures like circumcision.? Getting back to the death scenario--- ?I think there should be no criminal or civil?religious exemption for medical neglect resulting in the death or disability of a child, and that states need to punish parents who cross this line and educate the public that?parents will be punished for failure to act in these circumstances.? The civil side is also?very important, because?if a?religious parent permits a child to die and?a divorced spouse is not in the home to prevent it, the divorced spouse is suffering a grievous loss.??Moreover, religious entities and co-believers?that encourage such neglect should be named co-defendants.?? Are there?those on the list who would disagree with?where I have drawn the line? Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University ? -----Original Message----- From: Vance R. Koven <vrko...@gmail.com> To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> Sent: Mon, Aug 3, 2009 9:50 am Subject: Re: FW: Wisconsin convicts parents for denial of medical treatment While I don't think it's necessarily profitable to delve into the mists of time to figure out where civilization got the idea that parents should control their children's behavior, I think it's beyond controversy that many people consider it part of their specifically religious duty to discipline their children. While it's conceivable to stretch the ever-extrudable concept of privacy to cover non-religious motivations, it must be said that the right of privacy is the invention of modern times, and parental control distinctly otherwise. My point was simply that inasmuch as religious doctrine in many cases has codified social practices once universally accepted but now under cultural attack from a particular highly influential social subset, we find ourselves in the position of having ready-made legal doctrines to address the religiously motivated, but not really, without such a stretch, available to secular adherents. Just one of those ironies of legal development.? I'm not opposed to the bright-line rule, adopted after adequate discussion and consideration of all viewpoints, that says "if we can see the injury it's subject to legal regulation," I'm just opposed to the insidious extension of the rule to cover all the other ways parents may want to put junior in his place, including the occasional insult to the rump. After all, a parent's glowering is useless without at least the implied credible threat of direct action if diplomacy fails. On Sun, Aug 2, 2009 at 10:04 PM, Steven Jamar <stevenja...@gmail.com> wrote: the parental rights stem not from religion, surely! ?but rather from the constitutional right of privacy. ?or are you claiming, vance, that atheists don't have parental rights that can be protected by the constitution!? Steve On Sun, Aug 2, 2009 at 9:57 PM, Vance R. Koven <vrko...@gmail.com> wrote: Well really, I think some of you are assuming your conclusions. Whether something is child abuse is what is to be determined, not what is to be assumed.? Those of us of a certain age may recall being spanked. It did no lasting harm, and may have done considerable good. However, whether it did or not, it was not considered a matter for state intervention, and civilization did not collapse on that account.? The question is not, as Marci thinks, whether the law takes the side of the parent or the child, it's whether and under what conditions the law (i.e., the state) takes it unto itself to take sides and to intervene in intra-family affairs. We have consensus on serious bodily harm, maybe even on visible physical injuries like black eyes or bloody noses; when you get into speculating about psychological and social "injuries" it starts to shade over into state ownership of children. My smaller point is that religions have always had rather a lot to say about the relationships within families, particularly between parents and children, which is a zone that a free exercise clause worthy of the name ought to respect. And my larger point was, and remains, whether the state is bound, regardless of any other consideration (such as religious freedom) to take whatever view of child-rearing the secular upper middle class decides at any given moment to take. We have developed a rather Dic! kensian, and some might say irrationally sentimental, view of children and childhood, and I wonder if the Constitution really offers no refuge at all from having those sentiments shoved down the throats of dissenters.? 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. So the question remains, can the law come up with reasonably objective standards for determining when it will leave parental decisions on discipline to the parents? Is a black eye to be treated differently from a black-and-blue bum? Are parents to be held prisoner by their children's (purported) eggshell psyches? ? Prof. Steven Jamar Howard University School of Law Associate Director, Institute of Intellectual Property and Social Justice (IIPSJ) Inc. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. ?Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. -- Vance R. Koven Boston, MA USA vrko...@world.std.com _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
