I would disagree with Chip that the concept of best interest of the child continues to afford a presumption that parents act in the best interest of the child. Children are increasingly being treated as independent persons whose interests must be examined separately.
I do agree w Chip, though, that religious reasons should never be adequate as reasons to water down the best interest inquiry or create a defense in a case involving harm to a child. Marci On Jul 5, 2012, at 3:34 PM, Ira Lupu <icl...@law.gwu.edu> wrote: > Our ordinary, wide-spread, and long-standing presumption is that > parents/guardians act in the best interests of their minor children. The > state may intervene -- overcome that presumption -- when parents/guardians > inflict significant harm on their children. Of course, we can all argue > about what constitutes such harm (e.g., Eric' s example of Amish families > "keeping their children on the farm," or Alan's example of a parent providing > a child with small amounts of alcohol). I am not trying to settle what > constitutes harm sufficient to justify intervention. I am trying to reject > the idea that religion will EVER appropriately affect that judgment by the > state. There is no room for "play in the joints" on these questions, because > the interests of third parties are involved. If the state singles out > religiously motivated conduct for an exemption from a prohibition on what is > otherwise abusive or neglectful, that violates the Establishment Clause. And > if If the state singles out religiously motivated conduct for punishment in > cases where the same conduct with secular motivation is not considered > abusive or neglectful, that violates the Free Exercise Clause. So, Alan, > the answer is yes, both parents who provide alcohol to their children should > have to operate under the same rules -- if a Jewish parent's Seder practices > are OK (and I'm sure that the vast majority of such parents don't abusively > or neglectfully ply their minor children with alcohol), then likewise for the > parent who provides the same amount of alcohol, over the same number of > hours, with the same frequency on the calendar (once a year). Doing this at > every Sabbath, or every Sunday during NFL season, might be abuse or neglect, > but the standard for state intervention would be the same for both parents. > > On Thu, Jul 5, 2012 at 2:59 PM, Marci Hamilton <hamilto...@aol.com> wrote: > 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. > > > > -- > 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.
