This strikes me as a textbook example of question-begging. It is precisely what the "best interests of the child" are that is at issue, namely whether social-cultural-religious factors should be considered and what weight they should be given. This is exactly where you *don't* (or at least shouldn't) want judges second-guessing traditional practices in the absence of legislative enactments clarifying what the public considers the relative importance of these factors to be.
Whether actual laws that prohibited, on the one hand, FGM, and on the other, circumcision, would survive First or Fourteenth Amendment challenge (or their foreign equivalents), assuming that the law wasn't some midnight special that the public didn't have a chance to react to, is another question that is interesting but not relevant in a situation where the particular practice hasn't even been prohibited as such. On Wed, Jul 4, 2012 at 5:49 PM, Marci Hamilton <hamilto...@aol.com> wrote: > I have been away and apologize if I am repeating what others already have > said. The legal standard that should be applied in all circumstances > involving children is the best interest of the child. > Regardless of the involvement of religion or conviction or > thoughtlessness. Barbara Woodhouse has been eloquent on this approach. > > If we are dealing w circumcision, the best interest is a tough call, as > much of this thread attests. But that is what judges are for-- to make > judgment calls regarding the best Interest of the child. > > Also-- there are some practices that are beyond the pale. For example, > oral suction by rabbis should be criminally prosecuted given the > significant potential (and sad reality) that some infants die from herpes > as a result. > > Religious groups over the millennia have had to adjust to the culture to > their benefit. And vice versa. When it comes to children, religious > organizations have been disturbingly slow but there does seem to be some > progress. > > Marci > > On Jul 4, 2012, at 4:54 PM, Eric Rassbach <erassb...@becketfund.org> > wrote: > > > > > Eugene -- > > > > I think the problem with your non-medical reasons paragraph below is > that it misstates the proper attitude of the state towards religious > freedom and religious reasons given by parents. The state is supposed to be > neutral on claims of religious obligation, not merely tolerant of them. And > true neutrality (or agnosticism, if you will) means that the state doesn't > just say "Let the Jews do what they want as long as they aren't hurting > anybody." It means saying, "Maybe the Jews are right -- that is, maybe God > really did command them to do what they are doing." The state and its > judges are of course incompetent to *decide* such questions. But the proper > response to such incompetence is not to disregard the religious claim > entirely but to back off from deciding it as much as possible, precisely > because the state cannot exclude the possibility of its truth. Otherwise > the state is deciding a religious truth claim by resort to its own > incompetence. Thus on a question where the medical interests are in > equipoise, the tie has to go to the religious liberty interest, not to > inactivity. That to me seems to be the case with respect to circumcision > (though in my non-expert opinion the medical interests do not seem to be in > equipoise). > > > > I understand that this runs counter to a mere tolerance understanding of > where religious freedom rights come from, especially one heavily inflected > by freedom of speech doctrine (cf. our sincerity discussion on this list a > couple of years ago). But I don't think our system has adopted the mere > tolerance philosophy, and in fact adopted an entirely different philosophy > of rights during the Founding era. For evidence one need look only as far > as the Declaration of Independence. > > > > Eric > > > > > > > > ________________________________________ > > From: religionlaw-boun...@lists.ucla.edu [ > religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene [ > vol...@law.ucla.edu] > > Sent: Wednesday, July 04, 2012 4:24 PM > > To: Law & Religion issues for Law Academics > > Subject: RE: German circumcision decision > > > > Sorry for the delay responding – I was traveling Monday > and Tuesday – but I’m not sure I grasp the argument in the first paragraph. > My view is generally this: > > > > (1) People should generally have the power to make > medical decisions for themselves. > > (2) Infants and children can’t make such decisions. > > (3) Yet some such medical decisions must be made > quickly, before the child becomes mature enough to decide. > > (4) We therefore delegate this power to make medical > decisions to the parents. > > > > But this argument hinges on there being medical reasons > for the decision – I don’t see any reason for parents to have this power > when they exercise it for nonmedical reasons. We may defer to a parent’s > decision, even one we doubt, when it involves a tradeoff of one medical > risk for another medical risk. But I don’t see why we should defer to such > a decision when the parent doesn’t even purport to be making a medical > judgment, but is just deciding based on the judgment that “God wants me to > do this” or “I don’t want to give more profits to Big Pharma.” That’s not > weighing religious motivation negatively because it’s religious – that’s > weighing a nonmedical motivation negatively compared to a medical > motivation because the only justification for letting me order someone to > alter not my body but my son’s body is the need for medical judgment. > > > > This leaves two different arguments. One is “letting > people do what they have always done,” which strikes me as weak for the > reasons I gave in part of my response to Paul Finkelman’s post – especially > give the longstanding tradition of allowing not just parental decisions > about surgery for children but also parental decisions about beating > children, a tradition that I do not think ought to be given much legal > weight. The second, which I think is intriguing and might be correct, is > to have such decisions be made by legislatures directly, rather than by > judges interpreting general human rights norms. I’d love to hear more > thoughts on this institutional question. > > > > Eugene > > > > From: religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu] On Behalf Of Vance R. Koven > > Sent: Monday, July 02, 2012 10:58 AM > > To: Law & Religion issues for Law Academics > > Subject: Re: German circumcision decision > > > > 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 > <mailto: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> [mailto: > 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 > > _______________________________________________ > > 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.
