Eugene's tattoo example is very helpful for teeing up what has seemed to me to be the important distinction here (one I've tried to stress in my earlier posts):
I think one big reason that most of us, unlike Eugene, are opposed to an anti-circumcision law is because most men who were circumcised at birth are grateful that they were -- or at least indifferent. That is to say, there's little to no correlation between the law and the honoring of the individual's own wishes. If, at some point, most (or even many) men came to resent this earlier choice of their parents, and were of the view that they'd rather not have been circumcised, then I think many of us would be much more sympathetic to the state stepping in to protect the choice the boy likely "would have made" at birth, notwithstanding what his parents preferred, and even where the parents' religion mandated the circumcision. In that case, this would appear to be far more analogous to tattoos (although even harder to undo) or, more analogous still, to female genital mutilation. But perhaps that's just me. Can I ask the rest of you who agree with me and Chip and Howard, et al. -- and who disagree with Eugene -- that an anti-circumcision law now would be deeply unwise and/or contrary to our constitutional tradition and/or violative of Troxel and/or a Free Exercise or RFRA violation: Would your views change if many or most men regretted the decisions that their parents made to circumcise them -- more men, that is, than those who regret that their parents chose *not *to circumcise them? Would such a law become wiser, more tolerable, more constitutional, in that world? On Fri, Jul 6, 2012 at 12:55 PM, Volokh, Eugene <vol...@law.ucla.edu> wrote: > I agree with Chris entirely when it comes to questions > having to do with what to teach the child, whom to expose the child to, > where to live with the child, and similar child-rearing questions: There, > in an intact family, a court may not intrude simply on the grounds that > some other form of child-rearing – or some other set of child-rearers – > would be more in the child’s best interests, but must show parental > unfitness.**** > > ** ** > > But when it comes to physical injury to the child, or > danger of physical injury, many rules restrain parents without a showing of > parental unfitness. I don’t think that driving a child without a child > safety seat is a mark of parental unfitness; the risk to the child is > fairly low, and I don’t think parents should lose custody of their children > for this. Yet the law may require parents to use child safety seats. > Likewise, having a child work before a certain age might not be a mark of > parental unfitness, but it is forbidden.**** > > ** ** > > Likewise, my sense is that many states, including my own > California, outlaw the tattooing of minors (see, e.g., Cal. Penal Code sec. > 653), which interferes with parents’ ability to get their children > tattooed. I don’t think the rationale is that a parent who authorizes such > a tattoo is an “unfit parent” – just that when it comes to sufficiently > substantial alterations of a person’s body, and absent a medical reason > (there is a medical exemption to the California law, by the way), those > alterations should only happen with *that person’s *consent, which can > only be meaningfully given if the person is an adult.**** > > ** ** > > So I certainly don’t think that the law generally mandates > a “best interests of the child” standard, outside the child custody > context. But I also don’t think that the law generally mandates an > “unfitness [or] child abuse or neglect” standard, when it comes to > decisions that involve physical injury or threat of injury (and I mean > “injury” here to include physical alterations, such as tattoos).**** > > ** ** > > Eugene**** > > ** ** > > ** ** > > *From:* religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Christopher Lund > *Sent:* Friday, July 06, 2012 9:07 AM > > *To:* 'Law & Religion issues for Law Academics' > *Subject:* RE: Parental rights and physical conduct**** > > ** ** > > Yes, I’m feeling some of the same confusion as Paul. **** > > ** ** > > I don’t know much at all about family law. But my understanding was that > the “best interest of the child” standard was emphatically *not* the > standard for judicial or legislative interference with parental decisions. > It is the standard for what happens to the child when custody is disputed > among divorcing or divorced parents. But I thought the standard for > interfering with an intact family was much higher—a showing of unfitness, > of child abuse or neglect. Before this conversation, I assumed that unless > circumcision constitutes abuse or neglect, parents have the right to do it > to their children, with talk of “best interests” being irrelevant. Another > way of putting it is that the law presumes parents act in the best > interests of the children, a presumption that only gets overridden in > exceptional situations, a *constitutional* presumption under the *Troxel*line > of cases. > **** > > ** ** > > So have I gotten this completely wrong? **** > > ** ** > > Best,**** > > Chris**** > > >
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