I would think that a distinction between physical alteration of
a child's body and other actions would indeed be a sensible one (though not
always a dispositive one), and one that is consistent with our general view
that physical alteration of another's body is an especially serious intrusion
on that person. But let me ask Perry what he thinks of these hypotheticals:
(1) California law, as best I can tell, categorically bans all
tattooing of under-18-year-olds. Let's go back to a time when tattoos were
essentially permanent. Would parents nonetheless have a constitutional right
-- just as the exercise of their parental rights -- to tattoo a child,
especially one too young to have a view on the subject? Or could the state say
that this is a decision that should be left to the person whose body this
actually is, at a time when the person can make the decision?
(2) Say that parents decide to sterilize their child, perhaps
because they believe that either God or Gaea doesn't want more children to be
born on the planet, or perhaps because they have some genetic condition that
they do not want the child to risk spreading. (Set aside the special case when
the child is mentally retarded, unable or unwilling to use contraceptives, and
unlikely to ever be able to make an informed decision about sterilization.) Do
parents have a constitutional right to do this, or should this be left for the
child to decide when he or she becomes an adult? I take it that whatever one
might say of sterilization, one wouldn't say that it is necessarily an
"unquestionably grave harm, physical or psychological"; quite a few sane adults
choose to be sterilized. Of course it may be an unquestionably grave harm when
done without the subject's informed consent; but why wouldn't removal of a
functioning and an apparently quite sexually sensitive part of the body
likewise be seen as a sufficiently grave harm? (Or is the point simply that it
is "questionabl[e]" whether the removal really does affect sexual sensitivity?)
(3) Say that parents have a doctor perform an artificial
insemination of their 14-year-old daughter, with the daughter's agreement;
assume the daughter is sufficiently sexually mature that the pregnancy poses no
medical risk. (There's also no sex involved, so it isn't a statutory rape
question.) Perhaps one of the parents is dying and wants the experience of
being a grandparent as quickly as possible, or perhaps they take "be fruitful
and multiply" to mean "as soon as possible." I take it having a baby, even at
14, is not as such an "unquestionably grave harm, physical or psychological";
and I don't think the problem here is really that pregnancy is not
"developmentally appropriate" as such. Rather, it seems to me that it's
reasonable for the state to say that the decision about whether and when (and
with what sperm) to become a parent is a decision that should optimally be made
by an adult, or at least by someone older than 14. (While of course the
14-year-old could get pregnant the old-fashioned way, assume the law also
prohibits that, by making it statutory rape on the man's part, and by making
any adults who facilitate or encourage such an action accessories to statutory
rape.)
Eugene
> -----Original Message-----
> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> boun...@lists.ucla.edu] On Behalf Of Perry Dane
> Sent: Wednesday, July 11, 2012 1:42 PM
> To: religionlaw@lists.ucla.edu
> Subject: Circumcision
>
> 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
>
>
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