Hi, Just a couple of general thoughts:
1. Most everyone, including Eugene, admits that parents are empowered within broad limits to make all sorts of major decisions, inlcuding decisions with likely irreversible consequences, on behalf of their minor children. These include decisions about education, religious training (or lack of it), form of community (e.g., living in a small rural town vs. living in Manhattan), forms of cultural exposure or immersion, and etc., etc., etc.
I therefore don't see why we should take seriously a bright line between physical interventions such as circumcision and all these other myriad ways that parents (often irreverisbily) influence their children's lives. Indeed, even with respect to the narrow question of sexual gratification, circumcision is probably very low (even if it appears at all) on the list of deeply consequential parental interventions, conscious and unconscious.
2. It also bears emphasis that most everyone, including the non-libertarians among us, admit that adult men should have the right to have themselves circumcised. That is not merely because the adult has the capacity to consent. There are all sorts of things that even "consenting adults" don't have the right to do. Rather, it is because society doesn't understand circumcision -- and in particular circumcision for religious reasons -- to be the sort of dire act that requires its intervention. A doctor who, at a patient's request, cut off a patient's arm for no good medical reason would likely be charged with a crime or at least stripped of his or her license, and the patient would very likely be institutionalized. No such consequence would follow for an adult circumcision procedure. Put another way, when the Supreme Court in the Paris Adult Theatre case gave us its litany of acts that can be criminalized even among consenting adults -- "prostitution, suicide, voluntary self-mutilation, brutalizing 'bare fist' prize fights, and duels" -- it clearly did not have adult circumcision in mind as a form of "self-mutilation."
It seems to me that, in the light of the special role that parents play in the upbringing of their children, the state should bear an added burden when it tries to limit the right of parents to make a decision for their child that it would not keep them from making for themselves themselves. That burden can, I think, be met in at least two circumstances: (1) when the state is trying to prevent an unquestionably grave harm, physical or psychological, to the child, and (2) when the state is making a demonstrably reasonable judgemnt that certain acts are not developmentally appropriate for children even apart from the lack (or for that matter the presence) of consent. The first category clearly doesn't apply here, particularly since even the purely medical evidence about the pros and cons of circumicision remains complicated and controversial. The second category would cover everything from child labor to sexual abuse and so on. But circumcision (need i say more?) is actually more developmentally appropriate for an eight-day old baby than for an adult.
Take care. Perry _______________________________________________ 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.
