In this thread, no one so far has mentioned the religious right's long-standing opposition to the U.N. Convention on the Rights of the Child, growing largely out of concern that it somehow interferes with parental rights. This has made the U.S the only nation other than Somalia not to ratify the treaty. While not directly applicable, I think this shows the strong presumption in practice in the U.S. to honor parental wishes.
************************************* Howard M. Friedman Disting. Univ. Professor Emeritus University of Toledo College of Law Toledo, OH 43606-3390 Phone: (419) 530-2911, FAX (419) 530-4732 E-mail: howard.fried...@utoledo.edu ************************************* ________________________________ From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Roger Severino Sent: Monday, August 03, 2009 12:41 PM To: religionlaw@lists.ucla.edu Subject: RE: The impropriety of religious exemptions to child abuse laws Let's shift the hypo a little bit and presume that the ban is written as follows "all circumcisions performed on male children under age 16 for ceremonial purposes are hereby prohibited in the state of California." Would the state be justified in such a ban or would we have a Lukumi problem? Or, what if the statute simply banned all circumcision done for "non-medical" reasons. Would this still conflict with the principles laid out in Fraternal Order of Police? ("we conclude that the Department's decision to provide medical exemptions while refusing religious exemptions is sufficiently suggestive of discriminatory intent so as to trigger heightened scrutiny under Smith and Lukumi."). I suppose a ban on all brain surgery done for "non-medical reasons" wouldn't pose a problem, but when a practice is so closely tied to a particular religious expression, and when the health risks are fairly low or up for debate, I wonder if this changes the analysis. Wisconsin v. Yoder comes to mind, which was premised on the Free Exercise rights of parents to keep their children out of high school regardless of the child's (or the state's) wishes. -Roger Severino ________________________________ From: vol...@law.ucla.edu To: religionlaw@lists.ucla.edu Date: Mon, 3 Aug 2009 08:16:06 -0700 Subject: RE: The impropriety of religious exemptions to child abuse laws My analysis would be much the same as with corporal punishment. If the practice is not only valueless (and, as Doug says, it might not be) but seriously medically harmful either in terms of serious risk of other injury or of substantial loss of sensation (and I don't know enough on this to have an informed opinion), I would think that the children of religious parents would be entitled to the same protection against this medical harm as are the children of secular parents, or the children of parents of some other religion. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Monday, August 03, 2009 6:41 AM To: Law & Religion issues for Law Academics; Roger Severino Cc: religionlaw@lists.ucla.edu Subject: RE: The impropriety of religious exemptions to child abuse laws I think that medical opinion has shifted again. There is now substantial evidence that cirumcision reduces the rate of HIV transmission. Quoting Roger Severino <rseveri...@hotmail.com>: > > Eugene, > > > > How would your analysis apply to bans on circumcisions of male > children? >From my limited reading on the subject, it appears that > medical opinion is moving away from believing there are any > substantial health benefits to the practice while recognizing > non-negligible health risks. So let's presume that this is indeed > the case and states begin to ban child circumcisions because of the > risks and because they are irreversible. (A not entirely theoretical > prospect > http://www.cnn.com/2005/LAW/04/08/colb.circumcision/index.html). > > Presumably, Orthodox Jews and observant Muslims would seek exemptions > to any such criminal bans. > > > > -Roger Severino > > > > > From: vol...@law.ucla.edu > To: religionlaw@lists.ucla.edu > Date: Sun, 2 Aug 2009 21:40:52 -0700 > Subject: The impropriety of religious exemptions to child abuse laws > > > > > > 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. > _________________________________________________________________ > Get your vacation photos on your phone! > http://windowsliveformobile.com/en-us/photos/default.aspx?&OCID=0809TL-H M 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 ________________________________ Get back to school stuff for them and cashback for you. Try Bing(tm) now. <http://www.bing.com/cashback?form=MSHYCB&publ=WLHMTAG&crea=TEXT_MSHYCB_ BackToSchool_Cashback_BTSCashback_1x1>
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