Chip writes that under our "tradition" (without regard to religious liberty), "the state has the burden of proof that a practice is abusive. So, when reasonable people can and do differ about the social, medical, or hygienic benefits of a practice --as is obviously the case with infant male circumcision -- the state cannot meet its burden of showing the practice is abusive."
I wonder whether this fairly describes our tradition -- let alone any constitutional requirement. Chip's suggestion is not just that the state has the burden of proof by a preponderance, but that the state must demonstrate in some much more compelling way that the practice is, on the whole, harmful -- presumably such that "reasonable people" will no longer differ on the question. But as long as it's a subject of "reasonable disputation," we should or must defer to parents. Is this true, as a descriptive matter of how our law has progressed? Is there any case law to support it? (Not rhetorical questions -- I genuinely don't know.) What makes this case appear easy to me is that (i) this is the rare case where almost (but not quite all) of the purported harms and benefits will occur only in adulthood; (ii) this is also a case in which the decision can't or shouldn't be postponed until adulthood; where (iii) as far as I know, the majority of men who have been circumsized -- even for * nonreligious* reasons -- are at least neutral, if not pleased, about the decision their parents made (in contrast with, e.g., women who have been subject to genital mutilation); and where (iv) there's no consensus yet of severe health or other negative consequences. I'm not sure what this all means for *constitutional* doctrine; but it sure does lead me to think that a legislature (or court) ought not intervene as long as these four things are true. If, on the other hand, many or the majority of men were to become outraged about the decisions their parents made several decades earlier, would it really be the case then that the state should continue to defer to parents until there's a greater societal consensus -- indeed, until reasonable people no longer disagree? On Thu, Jul 5, 2012 at 10:37 AM, Ira Lupu <icl...@law.gwu.edu> wrote: > We are making this so much more complicated than it has to be. I cannot > speak to the particulars of the case in Germany, so I won't try. But in > the U.S, we have a longstanding tradition, initially at common law and > ultimately in constitutional law (Pierce, Meyer, etc.) of parental control > over the upbringing of their children. The state can interfere with that > control only for very good reason, and the state bears the burden of > persuasion that it has such a reason. Compulsory education, compulsory > vaccination, and limiting child labor are the most obvious, specific > policies that interfere with those rights of parental control. (Perhaps > I'm missing something on that list -- happy to learn of other such specific > policies.) Outside of such specific policies, parents (or other lawful > guardians) presumptively control decisions about child well-being, unless > the parents violate general norms about abuse or neglect. > > Parents do all sorts of things that put their children's bodies at risk > for permanent harm -- letting them play tackle football, go out in the sun > all day without enough sunscreen, etc. Whether a particular practice of > (more or less permanent) body-altering -- ear-piercing, nose-straightening, > orthodonture -- is abusive depends on a social and medical judgment on the > actuality of present harm, and in some cases the likelihood of future > harm. > > But two propositions control our approach to this -- 1) all > parents/guardians have the same rights and face the same limits (religious > motivation adds or subtracts nothing to parental rights); 2) the state has > the burden of proof that a practice is abusive. So, when reasonable people > can and do differ about the social, medical, or hygienic benefits of a > practice --as is obviously the case with infant male circumcision -- the > state cannot meet its burden of showing the practice is abusive. The > presence or absence of religious motivation for the practice may explain > parents' behavior, or a faith community's concerns, but -- when the rights > of children are at stake - the state should be constitutionally indifferent > to that motivation. If the practice is abusive, the state should make its > best efforts to put an end to it; if it cannot be shown to be abusive, > everyone is free to engage in it. And liberty -- not religious liberty, > but liberty generally -- resides in the initial allocation of power to > parents/guardians, and the assignment of the burden of proof of abusiveness > to the authorities. > > On Thu, Jul 5, 2012 at 10:08 AM, Vance R. Koven <vrko...@gmail.com> wrote: > >> OK, let's turn this around again. I don't follow Eugene's reasoning here. >> If I do for religious reasons what anyone else could do for secular >> reasons, why should this be penalized? Seems like a fundamental >> equal-treatment issue. >> >> On the second paragraph, Eugene is correct that my point went to >> institutional competence and legitimacy. I have little faith in courts to >> divine a social or moral consensus that isn't heavily biased in favor of >> whatever the upper middle class (the category into which most judges fall) >> thinks it knows. In the absence of an affirmative policy decision by >> elected representatives, therefore, the rule of decision that imposes the >> least harm *to the polity* ought to be that tradition carries prima >> facie probative weight. This is especially true in criminal cases, where >> the standard of statutory interpretation requires that crimes be clearly >> specified--none of this "do no harm" generalizing! >> >> On Wed, Jul 4, 2012 at 4:24 PM, Volokh, Eugene <vol...@law.ucla.edu>wrote: >> >>> 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> >>> 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**** >>> >>> _______________________________________________ >>> 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. >> > > > > -- > Ira C. Lupu > F. Elwood & Eleanor Davis Professor of Law, Emeritus > George Washington University Law School > 2000 H St., NW > Washington, DC 20052 > (202)994-7053 > My SSRN papers are here: > http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg > > _______________________________________________ > 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.
