But we do know-- the best interests of the child is based on a totality of the circumstances. A one-time sip of beer does not harm a child A full beer would. Most of these cases are just common sense. Your example is a straw man
Marci On Jul 5, 2012, at 10:44 PM, Eric Rassbach <erassb...@becketfund.org> wrote: > > My Dad gave me a sip of "Dome foam" at an Astros game when I was fairly > young, which had the (almost certainly intended) effect of putting me off of > beer until later than many of my peers. The sad part is that we will never > know whether that act was in the best interests of the child or whether Dad > should've been locked up. > > ________________________________________ > From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] > On Behalf Of Ira Lupu [icl...@law.gwu.edu] > Sent: Thursday, July 05, 2012 9:26 PM > To: Law & Religion issues for Law Academics > Subject: Re: Parental rights and physical conduct > > I am wondering if Marci thinks Troxel v. Granville (unconstitutional for > legislature to provide for grandparent visitation rights over objection of > custodial parent) is correctly decided, or consistent with her views. Her > assertion that "Children are increasingly being treated as independent > persons whose interests must be examined separately" is awfully vague -- 16 > year olds involved in custody fights? What's the context to which you are > referring? > > Now I have to go watch the Nationals and drink some beer with my younger son > -- he'll be 22 in a few weeks. I have a 13 year old grandson coming to visit > tomorrow, and I'll have to think twice about offering him a bottle. > > On Thu, Jul 5, 2012 at 8:19 PM, Marci Hamilton > <hamilto...@aol.com<mailto:hamilto...@aol.com>> wrote: > 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<mailto: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<mailto: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<mailto: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<mailto:religionlaw-boun...@lists.ucla.edu> >> >> [religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>] >> On Behalf Of Volokh, Eugene >> [vol...@law.ucla.edu<mailto: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> >> >> [mailto: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><mailto: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<mailto: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<mailto: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<mailto: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<tel:%28202%29994-7053> > 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<mailto: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<mailto: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.
