With regard to the US and our 1st Amendment: I've been suggesting for some time informally that we should consider a historical (an historical?) approach to free exercise. Those religious practices that have been accepted for a long time in our society settings (and modern analogues) should be seen as part of the religious exercise that is protected. Use of relatively small amounts of mildly intoxicating substances by adults or near-adults in controlled settings (e.g., communion wine) should be protected. That would cover not only communion wine but also the religious uses of hoasca tea and peyote. Use of large amounts of traditionally accepted intoxicants in a historically societally-accepted setting (drinking of substantial amounts wine in Jewish religious celebrations like the Passover Seder) could arguably be protected.
Circumcision not only has been a historically-accepted practice but also has historically been seen as necessary for the existence in our society of a minority religious community, the Jews. By analogy, similar practices that have only relatively benign and limited physical effects should be protected, including Muslim circumcision (which I suppose but do not know to be very similar to Jewish circumcision). Branding children's faces or female genital mutilation would not be protected, though the details of how they would be distinguished would have to be worked out. Note that circumcision has been widely practiced in the US by Christians as well as by Jews, and has been seen as a kind of familial choice. For Smith purposes, the combination of historically-rooted parental rights with the free exercise claim should be sufficient even under current law to protect circumcision. All of this is apart from the ethics of this German decision, which is reprehensible in its foreseeable effect of destroying or banishing one or more religious communities. Note also that circumcision is not necessarily irreversible. See http://intactnews.org/node/115/1314118161/pioneering-foreskin-regeneration-reverse-circumcision-interview-founder-foregen. Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Sunday, July 01, 2012 8:56 AM To: Law & Religion issues for Law Academics Subject: RE: German circumcision decision Any chance we could have some helpful analysis of the decision, rather than one-liners? The question of the degree to which parents should be able to permanently alter their children's bodies - for religious reasons or otherwise - is not, it seems to me, one that has a completely obvious answer one way or the other. There may indeed be one correct answer that can be demonstrated, but such demonstration requires argument rather than assertion. Eugene
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