I am not sure that you can even rely on a claim that the sexual function was
necessarily reduced; I know that some proponents of circumcision claim that
circumcision actually enhances sexual function. Would you agree that if the
evidence on that point is ambiguous or equivocal, then circumcision falls
within the realm of things that parents can decide? That is reinforced by the
fact that there are health reasons offered for circumcision; if those
rationales are true (or perhaps just plausible?) then it is less like having an
ear cut off and more like having an unsightly mole excised or an extra toe
removed, both of which are easier at a younger age.
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 11:27 PM
To: Law & Religion issues for Law Academics
Subject: RE: Parental rights and physical conduct
I agree that the danger to infants from full immersion baptism is very
low and perhaps zero; the hypothetical was that it happened in "a handful of
cases," but I think that's just a hypothetical. As to what burdens the
government imposes to avoid "a handful" of deaths of infants, I think that
varies from context to context. My sense is that there are quite a few safety
regulations -- though generally not total bans -- that are indeed justified by
the desire to avoid just a handful of deaths.
On the other hand, circumcision involves not a very low risk of death,
but a certainty of loss of part of the body, which in turn involves an
uncertain possible health benefit and an unknown (and likely very hard to
quantify) possibility of loss of some sexual function. That might well be a
materially higher aggregate loss of utility, to borrow the economic term, than
the loss of utility from playing football, even in Texas. Or it might not;
again, much depends on the facts.
Eugene
> -----Original Message-----
> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> boun...@lists.ucla.edu] On Behalf Of Eric Rassbach
> Sent: Thursday, July 05, 2012 9:43 AM
> To: Law & Religion issues for Law Academics
> Subject: RE: Parental rights and physical conduct
>
>
> 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.
>
> _______________________________________________
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