Yes (to Marty.) I'm someone inclined toward Marty's view, and I think the empirical question of regret is very important. Regret either way is important. If most circumcised men regret their infant circumcisions, then infant circumcision becomes harder to justify. Similarly, if most uncircumcised men regret not being circumcised as an infant, that too enters into it. It's easy to say that an uncircumcised man can always get circumcised (and he can). But it requires surgery and anesthetic in a very sensitive place. And there are a lot of emotional sunk costs too.
I'm generally a strong believer in regulatory exemptions for Free Exercise, even when the rest of the world is doing something totally different. But what the rest of the world is doing is very important here, because it goes to the burden on the child. If 30% of boys are circumcised, allowing me to circumcise my son seems an easy call. My son won't be different from the other kids in his class; his future sexual partners won't think of him as weird. But if only 2% are circumcised, it's a different story. If it's only 2% and those 2% are treated like freaks, then it's a very different story. My understanding is that the circumcision rate in the US is still above 50%, though it's below 50% in some of the western states. Changes in that are highly relevant. But given the demographics now, I'm inclined to think this is an easy call in favor of parental autonomy and free exercise. Marty/Eugene's tattoo point is marvelous, I think. The numbers of 18-25 year olds with tattoos is staggering, something like 40%. If that rises to say 80%, then the tattooing of a child will seem more justifiable, because tattoo regret will probably drop. On the other hand, kids may regret the kind of tattoo that Mom and Dad wanted (and of course they will!), so I guess it's still different than circumcision. Best, Chris From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Friday, July 06, 2012 1:19 PM To: Law & Religion issues for Law Academics Subject: Re: Parental rights and physical conduct 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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