But isn't saying that you would accept the argument that refusing medical treatment because it might do more harm than good the same as saying the medical treatment might not be necessary? And if in any particular situation you would accept the argument that doing or not doing something would be valid if you said it was for medical reasons, and oh by the way to do otherwise would be against my religion (and there is independent evidence that the medical argument is genuine), then why condemn someone who neglects to mention the medical rationale? The medical evidence goes to the question of whether, objectively speaking, there is a likelihood of harm. If the medical evidence is to the contrary, or if the matter is subject to substantial debate, the religious motivation shouldn't be weighted negatively, and doing so is simply a point of religious bias rather than objective analysis.
This is why I, like Mark Scarberry, would urge a legal heuristic that courts should be biased in favor of letting people do what they have always done, unless a democratically accountable legislature has clearly indicated the contrary (at which point you could begin analyzing whether the legislature has infringed someone's fundamental rights). Nobody in post-war Germany has ever prosecuted a doctor or parent (never mind a religious official) for performing or permitting a male circumcision, which ought to be evidence that the generally phrased criminal legislation didn't cover it. The judge's rather high-handed and arbitrary statements that in Central Europe there are no medical arguments in favor of circumcision do indicate a mindset that just wanted to take a slap at traditional religious communities. It's just more legislating from the bench (or the post office). Vance On Sun, Jul 1, 2012 at 5:22 PM, Volokh, Eugene <vol...@law.ucla.edu> wrote: > I don’t see why it’s “religio-cultural[ly] insensitiv[e]” > to say that a decision made for medical reasons is permissible but a > decision made for religious reasons is not; or if it is religio-culturally > insensitive, I would be proudly religio-culturally insensitive in many > instances. (This instance I do find hard, for many reasons, but not for > the reasons described below.) For instance, I don’t see why we should > treat (a) a parent’s refusing necessary medical treatment to a child > because there’s a plausible argument that the treatment will do more harm > than good the same as (b) a parent’s refusing such treatment without any > such explanation but simply because he concludes “we should pray instead of > performing the medical procedure, and God will take care of things.” > Perhaps it’s too hard to tease apart such rationales in some situations, > but as a general matter I would think that courts might quite rightly > reject rationale (b) even if they accept rationale (a).**** > > ** ** > > Now of course here the situation is not identical – > indeed, as I’ve argued before, male circumcision is not identical to pretty > much any other procedure – and perhaps the situation should be different > when we’re not talking about refusal of necessary medical treatment but > rather the performance of a medical procedure for which the practical > effect (with regard to possible loss of sexual sensation) is unknown. But > the point is that the mere fact that a decision might permissibly be made > for plausible medical reasons doesn’t mean that it might permissibly be > made for religious reasons (or other nonmedical reasons).**** > > ** ** > > Eugene**** > > ** ** > > *From:* religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Vance R. Koven > *Sent:* Sunday, July 01, 2012 9:38 AM > > *To:* Law & Religion issues for Law Academics > *Subject:* Re: German circumcision decision**** > > ** ** > > Isn't there still a substantial body of medical opinion--perhaps not as > prevalent as in decades past--that recommends circumcision as a preventive > health measure? If the issue is the lack of consent from the subject of the > operation, this certainly affects more than just religious observance, and > more than just this particular operation. And if the decision hinges > specifically on the fact that the motivation (if that can ever be clear) is > primarily religious, that certainly smacks of religio-cultural > insensitivity, to put it mildly. > > Vance**** > > On Sun, Jul 1, 2012 at 12:21 PM, Paul Finkelman <paul.finkel...@yahoo.com> > wrote:**** > > Are they also banning parents from piercing the ears of children? In many > cultures it is common to see infant girls with pierced ears. Does the ban > extend to pierced ears before age 18? And then there is body piercing > before age 18. Is that being banned? Has the Court banned tattoos for > people under 18?**** > > ** ** > > And has this ban spread to Muslim male children, who are circumcised at > age 7, 10 or slightly later depending on the sect. **** > > ** ** > > The fact is, given Germany's history of how it has dealt with Jews, is is > not illegitimate to wonder what the Court is thinking. Germany has one of > the fastest growing Jewish populations in the world -- mostly through > immigration. This decision, if enforced all over the country, would slow > down or stop that population growth. One might at least ponder why this > case has come to the Germany court, and not one involving piercing, > tattoos, or Muslim circumcision.**** > > **** > > ---- > Paul Finkelman > President William McKinley Distinguished Professor of Law > Albany Law School > 80 New Scotland Avenue > Albany, NY 12208**** > > 518-445-3386 (p) > 518-445-3363 (f)**** > > ** ** > > paul.finkel...@albanylaw.edu**** > > ** ** > > www.paulfinkelman.com**** > ------------------------------ > > *From:* "Volokh, Eugene" <vol...@law.ucla.edu>**** > > > *To:* Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> > **** > > *Sent:* Sunday, July 1, 2012 11:56 AM > *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**** > > ** ** > > _______________________________________________ > 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.**** > > > > > -- > 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. > -- 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.
