This kind of act-specific discussion on this thread misses the point in my
view. There is a universe of existing law already can protect children and
should be capable of being brought to bear against parents or guardians who
negligently/recklessly/intentionally/knowingly harm/injure/kill their children,
even if it happens for religious purposes. Criminal law and tort law and
statutory law on abuse and neglect. So the parent who starves the infant for
religious reasons should be capable of being prosecuted; same for the parents
who permit their child to have oral suction in an Orthodox circumcision; and
same for the parent who hits/sexually abuses the child for religious reasons.
Ditto for civil claims.
So why is harm to children in religious settings even an issue? (1) In part
because Christian Scientists in the Nixon Administration fomented medical
neglect exemptions in the states as a condition for federal funding and a
number of states still have them. Medical neglect exemptions are not
constitutionally required.
(2) Christian Scientists and other religious lobbyists continue to lobby for
the endangerment of children from medical neglect and even abuse. At one time,
when children were treated as parental property and few children's groups had
traction, legislators gave such religious lobbyists what they requested in a
knee-jerk fashion. The rise in children's advocates and a greater sense of
children as persons has changed that somewhat. But plenty of states still
handcuff prosecutors when the child died or suffered for religious reasons.
(3) Religious parents and their lawyers argue that the First Amendment and any
rfra available protects the parent who harmed their child. Such defenses (even
though meritless in my view) can dissuade prosecutors from investing resources,
and give judges who are sympathetic to religion (or their religion) an opening
to put roadblocks in the way of justice.
(4) A romantic approach to religion in American culture.
So the solution is the repeal of such exemptions, and apply the existing law to
religious parents. I believe that is what Chip is suggesting, but this may go
farther than he would.
So how does this apply to circumcision? There should be no blanket exemption,
and parents and religious leaders need to avoid
negligent/reckless/wilful/knowing actions that harm a child. As research into
the longterm effects of circumcision continues, the judgment on this may well
change in particular cases. And if the evidence of harm becomes overwhelming
(e.g., genital mutilation and polygamy), a blanket ban makes sense. If
religious groups want to continue doing it, they will have to justify it.
Marci
Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Cardozo School of Law
Yeshiva University
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
Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva University
55 Fifth Avenue
New York, NY 10003
(212) 790-0215
hamilto...@aol.com
-----Original Message-----
From: Volokh, Eugene <vol...@law.ucla.edu>
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Sent: Thu, Jul 5, 2012 11:28 pm
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.
>
> _______________________________________________
> 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.
_______________________________________________
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.
