I would like some clarification from those relying on purported "parental rights." The use of the term "parental right" is freighted w social and cultural value but very little legal value.
Pierce v Society of Sisters is balanced by Prince. So the use of "right" in this context is a dead end in my view. The best interest of the child is not in the context of parental rights as much as it is intended to treat the child as a separate person who deserves protection and respect even in opposition to a parent's demands or needs. Marci On Jul 5, 2012, at 12:42 PM, Eric Rassbach <erassb...@becketfund.org> wrote: > > Eugene -- > > I don't think this makes sense because it posits an impossible universe of > zero-risk parenting. It is far riskier to drive your child on the freeway > (not to mention take him/her skiing, or letting him/her play soccer, or play > football (esp. in Texas)) than it is to baptize him/her. All those risks are > well within the set of risks that parents take in the normal course of > parenting. Indeed, for the state to interfere with the ability of parents to > expose children to those risks would be a gross interference with parental > rights. And I imagine that the danger to infants from either circumcision or > full immersion baptism is far lower than driving them around town, though I > claim no actuarial expertise on the matter. > > Eric > > ________________________________________ > From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] > On Behalf Of Volokh, Eugene [vol...@law.ucla.edu] > Sent: Thursday, July 05, 2012 12:31 PM > To: Law & Religion issues for Law Academics > Subject: RE: Parental rights and physical conduct > > I appreciate Howard’s point, but the question is: Why should > some children who by definition do not share a religious belief drown – or > otherwise be injured – for the sake of the beliefs of the adults who do have > that belief (and even for the sake of those children who, later in life, will > wish that they had been so baptized)? I have great sympathy for people’s > rights to risk their own lives (in the baptism example) or alter their own > bodies (in the circumcision example) for the sake of their religious beliefs, > or for that matter for the sake of their secular beliefs. But why does it > follow that they should have the right to impose such risks on others, even > others to whom they are genetically linked? > > Eugene > > From: religionlaw-boun...@lists.ucla.edu > [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Friedman, Howard M. > Sent: Thursday, July 05, 2012 8:52 AM > To: Law & Religion issues for Law Academics > Subject: RE: Parental rights and physical conduct > > > What has been absent from all of the discussion on this issue is the > importance to Jewish belief of circumcision while the son is an infant. This > ceremony at 8-days of age (except where health precludes it that early) is > the son's initiation into Jewish peoplehood. Waiting until adulthood is not > the functional equivalent. Because the case in Germany involved a Muslim > circumcision at a later age, the issue is muddled. As I understand it, Islam > has varying views on the proper age for circumcision, and even on how > important it is. While centrality of religious belief has been a factor of > declining importance in free exercise cases in recent years, here it perhaps > should be revived. I think a better analogy for trying to come up with a rule > is this: > > Suppose there were a handful of cases in which infants drowned (or almost > drowned) during full immersion baptism, and a court then ruled that because > of the danger parents cannot baptize infants. They must wait until the child > is an adult and then let him or her decide. How would everyone come out on > that case? > > Howard Friedman > > > -----Original Message----- > From: > religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> > on behalf of Volokh, Eugene > Sent: Thu 7/5/2012 10:57 AM > To: Law & Religion issues for Law Academics > Subject: Parental rights and physical conduct > > This raises a fascinating and practically very important > question (because there are more than 10 times as many American parents who > authorize circumcision for nonreligious reasons than for religious reasons): > Do Meyer/Pierce rights extend to the right to raise one's child in the sense > of selecting an education for the child, setting behavior rules for the > child, choosing a place to live with the child, and so on, or do they also > have the constitutional right (not just a common-law right) to physically > alter the child's body, including for nonmedical reasons? When I last > checked the caselaw on the subject, the Supreme Court cases weren't clear on > that. Are there cases I'm missing on that? > > To be sure, I agree that parents are generally allowed to let > their children put themselves at risk in various ways, such as by playing > tackle football and not wearing enough sunscreen. But that doesn't tell us > much about whether that's a constitutional right. And indeed I don't think > that laws banning child labor, for instance, have been judged as interfering > with parental rights (imagine Prince without the religious motivation), even > though many such laws (again, imagine Prince) are pretty clearly overbroad. > Likewise, I would think that a ban on ear piercing, tattooing, etc. of > minors, even when the parents order such actions, would be constitutional, > though of course that's part of the dispute between us. > > Is there dispositive caselaw I'm missing here? > > Eugene > > From: > religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> > [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu > Sent: Thursday, July 05, 2012 7:38 AM > To: Law & Religion issues for Law Academics > Subject: Re: German circumcision decision > > 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. > > _______________________________________________ > 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.
