Courts routinely rule that such an environment is in the best interests of the child. But specific practices need to be vetted under the standard. It is a fact question.
Shared values and age-old historic traditions do not cut it, however. The Muslims who engage in genital mutilation satisfy that criterion; as do the FLDS who engage in widespread rape of girls and abandonment of boys; and the ultra-Orthodox rabbis who tell their believers not to go the authorities about child sex abuse. Many would argue that it is in the "best interest of the child" to welcome him into a supportive, religious community with shared values and age-old historic traditions-- The question is what is in the interest of this child today. Marci 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: Friedman, Howard M. <howard.fried...@utoledo.edu> To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> Sent: Thu, Jul 5, 2012 3:47 pm Subject: RE: Parental rights and physical conduct Many would argue that it is in the "best interest of the child" to welcome him into a supportive, religious community with shared values and age-old historic traditions-- that include circumcision or full immersion baptism or some other ritual that might create some small risk of injury (just as almost any activity might). The problem is, how do you decide whether or not this is in the child's "best interest" without a prior value judgment about the religious tradition involved? There is no reason to believe that it is in the best interest of the child to raise him or her in a cultural or moral vacuum, or devoid of traditions which can give structure to his or her life, until the child reaches 18. Of course there are some rituals that create an undue risk of harm-- and isn't the question one of how to identify those without imposing our own cultural or religious bias on the question of risk? Howard -----Original Message----- From: religionlaw-boun...@lists.ucla.edu on behalf of Marci Hamilton Sent: Thu 7/5/2012 2:59 PM To: Law & Religion issues for Law Academics Cc: Law & Religion issues for Law Academics Subject: Re: Parental rights and physical conduct 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. _______________________________________________ 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.
