Earlier posts raised the issue of male circumcision. I've thought for a long time that one fruitful approach to giving substantive content to "free exercise" of religion would be to look at practices that were considered at the Founding (or maybe in 1868) to be core religious practices (perhaps with a focus on worship and ceremony) and that were at that time tolerated. Of course then the protection of such practices would have to be granted in some way by analogy to new practices of new religions (or of religions new to the US because not present in the US at the relevant historical time or not widely known of at the relevant historical time), so as not to discriminate against new religions. Some kind of mid-level scrutiny then could be applied. Such an approach would protect use of sacramental wine (a mildly intoxicating substance) as it was used in Christian and Jewish ceremonies, and it would protect use of other mildly intoxicating substances as they might be similarly used by new religions. I suppose the use of hoasca tea by the UDV and the use of small amounts of peyote in native American religion probably would be protected by such an approach. Beating of children for religious reasons in such a manner as to cause serious psychological harm or bruising would either not be seen as a core religious practice or perhaps as not tolerated at the relevant time (though I'm not sanguine about how historical research would come out on that issue) or would fail under intermediate scrutiny because of the governmental interest in protecting children. Male circumcision would seem to be protected by such an approach. Yes, it can cause difficulties for boys, but it may also have some benefits (including some protection against infection and in most cases the psychological benefit of the boy's penis looking the same as his father's), and its harms are relatively small as compared to the core place it holds in Judaism. If one wishes to take a broader historical approach, I think Americans, either in 1791 or in 1868, would have seen a ban on circumcision as an attempt to banish Jews from America or to destroy Judaism. But I have not done historical research on the point, and others may know more about the attitudes of Americans towards circumcision at those times. Mark Scarberry Pepperdine
________________________________ From: religionlaw-boun...@lists.ucla.edu on behalf of Douglas Laycock Sent: Tue 8/4/2009 5:48 AM To: religionlaw@lists.ucla.edu Subject: Re: Wisconsin convicts parents for denial of medical treatment Now we're getting somewhere. Terms like corporal punishment are no more helpful than spanking. We simply must make distinctions of degree. And the rhetoric of the movement against corporal punishment speaks in apparent absolutes and makes no distinctions of degree. I suspect this is much of what Vance has been reacting to. Quoting hamilto...@aol.com: > Art- many studies now document the extreme disabilities visited upon > abused children. The cost to society is very high. Is a pat on the > tush abuse? No. Is a whipping with a tree branch? Probably > The term spanking is not terribly helpful > > Marci > Sent from my Verizon Wireless BlackBerry > > -----Original Message----- > From: artspit...@aol.com > > Date: Mon, 3 Aug 2009 21:08:19 > To: <religionlaw@lists.ucla.edu> > Subject: Re: Wisconsin convicts parents for denial of medical treatment > > > _______________________________________________ > 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. > > > 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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_______________________________________________ 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.
