RE: The impropriety of religious exemptions to child abuse laws

[Douglas Laycock]

I think that medical opinion has shifted again.  There is now substantial 
evidence that cirumcision reduces the rate of HIV transmission.   

Quoting Roger Severino :

>
> Eugene,
>
>
>
> How would your analysis apply to bans on circumcisions of male 
> children?  From my limited reading on the subject, it appears that 
> medical opinion is moving away from believing there are any 
> substantial health benefits to the practice while recognizing 
> non-negligible health risks.  So let's presume that this is indeed 
> the case and states begin to ban child circumcisions because of the 
> risks and because they are irreversible.  (A not entirely theoretical 
> prospect 
> http://www.cnn.com/2005/LAW/04/08/colb.circumcision/index.html[1]).
>
> Presumably, Orthodox Jews and observant Muslims would seek exemptions 
> to any such criminal bans.
>
>
>
> -Roger Severino
>
>
>
>
> From: vol...@law.ucla.edu
> To: religionlaw@lists.ucla.edu
> Date: Sun, 2 Aug 2009 21:40:52 -0700
> Subject: The impropriety of religious exemptions to child abuse laws
>
>
>
>
>
>I stress again that I?m not sure where the law should 
> draw the line between permissible discipline and criminal battery.  
> It obviously must, even if all spankings were outlawed, unless it 
> becomes a crime even to pull a child to his room, or to forcibly 
> seize a toy from him; but where it should do so, I don?t know.
>
>But this strikes me as among the least appealing cases 
> for a religion-specific exemption:  If religious parents are entitled 
> to an exemption from battery law but secular parents are not, then 
> this means that a child of religious parents would have to suffer 
> something that the law plausibly treats as a battery, simply because 
> he is the child of religious parents.  That strikes me as a very hard 
> inequality to defend, which suggests that even if we?re under a 
> strict scrutiny exemptions regime, the government should be able to 
> claim a compelling interest in giving all children equal protection 
> against something that the law sees as battery, whether or not 
> there?s a compelling interest in preventing the battery in the first 
> place.
>
>Eugene
>
> Vance Koven writes:
>
>
> While in principle Eugene is right that whether the state intervenes 
> shouldn't be determined by whether the parent is acting out of 
> religious or secular motives, it is only in the case of religiously 
> motivated parents that there is a legal hook on which to hang an 
> interest in parenting methodology that requires the state to justify 
> itself on the basis of compelling interest--unless you can engineer a 
> free speech interest, which seems to me a stretch. It would be ironic 
> indeed if the justification for parental authority is the concept of 
> privacy.
> _
> Get your vacation photos on your phone!
> http://windowsliveformobile.com/en-us/photos/default.aspx?&OCID=0809TL-HM[2]

Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713

Links:
--
[1] http://www.cnn.com/2005/LAW/04/08/colb.circumcision/index.html
[2] 
http://windowsliveformobile.com/en-us/photos/default.aspx?&OCID=0809TL-HM___
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Re: The impropriety of religious exemptions to child abuse laws

[Douglas Laycock]

Or to put it the other way, if the law can afford a religious exemption here, 
it is because a forbidden punishment is doing the child no real harm.  But in 
that event, the law has probably drawn the line at the wrong place for 
everybody. 

Quoting "Volokh, Eugene" :

>I stress again that I'm not sure where the law should 
> draw the line between permissible discipline and criminal battery.  
> It obviously must, even if all spankings were outlawed, unless it 
> becomes a crime even to pull a child to his room, or to forcibly 
> seize a toy from him; but where it should do so, I don't know.
>
>But this strikes me as among the least appealing cases 
> for a religion-specific exemption:  If religious parents are entitled 
> to an exemption from battery law but secular parents are not, then 
> this means that a child of religious parents would have to suffer 
> something that the law plausibly treats as a battery, simply because 
> he is the child of religious parents.  That strikes me as a very hard 
> inequality to defend, which suggests that even if we're under a 
> strict scrutiny exemptions regime, the government should be able to 
> claim a compelling interest in giving all children equal protection 
> against something that the law sees as battery, whether or not 
> there's a compelling interest in preventing the battery in the first 
> place.
>
>Eugene
>
> Vance Koven writes:
>
> While in principle Eugene is right that whether the state intervenes 
> shouldn't be determined by whether the parent is acting out of 
> religious or secular motives, it is only in the case of religiously 
> motivated parents that there is a legal hook on which to hang an 
> interest in parenting methodology that requires the state to justify 
> itself on the basis of compelling interest--unless you can engineer a 
> free speech interest, which seems to me a stretch. It would be ironic 
> indeed if the justification for parental authority is the concept of 
> privacy.
>

Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713___
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Re: FW: Wisconsin convicts parents for denial of medical treatment

[Vance R. Koven]

While I don't think it's necessarily profitable to delve into the mists of
time to figure out where civilization got the idea that parents should
control their children's behavior, I think it's beyond controversy that many
people consider it part of their specifically religious duty to discipline
their children. While it's conceivable to stretch the ever-extrudable
concept of privacy to cover non-religious motivations, it must be said that
the right of privacy is the invention of modern times, and parental control
distinctly otherwise. My point was simply that inasmuch as religious
doctrine in many cases has codified social practices once universally
accepted but now under cultural attack from a particular highly influential
social subset, we find ourselves in the position of having ready-made legal
doctrines to address the religiously motivated, but not really, without such
a stretch, available to secular adherents. Just one of those ironies of
legal development.
I'm not opposed to the bright-line rule, adopted after adequate discussion
and consideration of all viewpoints, that says "if we can see the injury
it's subject to legal regulation," I'm just opposed to the insidious
extension of the rule to cover all the other ways parents may want to put
junior in his place, including the occasional insult to the rump. After all,
a parent's glowering is useless without at least the implied credible threat
of direct action if diplomacy fails.



On Sun, Aug 2, 2009 at 10:04 PM, Steven Jamar  wrote:

> the parental rights stem not from religion, surely!  but rather from the
> constitutional right of privacy.  or are you claiming, vance, that atheists
> don't have parental rights that can be protected by the constitution!?
> Steve
>
> On Sun, Aug 2, 2009 at 9:57 PM, Vance R. Koven  wrote:
>
>> Well really, I think some of you are assuming your conclusions. Whether
>> something is child abuse is what is to be determined, not what is to be
>> assumed.
>> Those of us of a certain age may recall being spanked. It did no lasting
>> harm, and may have done considerable good. However, whether it did or not,
>> it was not considered a matter for state intervention, and civilization did
>> not collapse on that account.
>>
>> The question is not, as Marci thinks, whether the law takes the side of
>> the parent or the child, it's whether and under what conditions the law
>> (i.e., the state) takes it unto itself to take sides and to intervene in
>> intra-family affairs. We have consensus on serious bodily harm, maybe even
>> on visible physical injuries like black eyes or bloody noses; when you get
>> into speculating about psychological and social "injuries" it starts to
>> shade over into state ownership of children. My smaller point is that
>> religions have always had rather a lot to say about the relationships within
>> families, particularly between parents and children, which is a zone that a
>> free exercise clause worthy of the name ought to respect. And my larger
>> point was, and remains, whether the state is bound, regardless of any other
>> consideration (such as religious freedom) to take whatever view of
>> child-rearing the secular upper middle class decides at any given moment to
>> take. We have developed a rather Dickensian, and some might say irrationally
>> sentimental, view of children and childhood, and I wonder if the
>> Constitution really offers no refuge at all from having those sentiments
>> shoved down the throats of dissenters.
>>
>> While in principle Eugene is right that whether the state intervenes
>> shouldn't be determined by whether the parent is acting out of religious or
>> secular motives, it is only in the case of religiously motivated parents
>> that there is a legal hook on which to hang an interest in parenting
>> methodology that requires the state to justify itself on the basis of
>> compelling interest--unless you can engineer a free speech interest, which
>> seems to me a stretch. It would be ironic indeed if the justification for
>> parental authority is the concept of privacy.
>>
>> So the question remains, can the law come up with reasonably objective
>> standards for determining when it will leave parental decisions on
>> discipline to the parents? Is a black eye to be treated differently from a
>> black-and-blue bum? Are parents to be held prisoner by their children's
>> (purported) eggshell psyches?
>>
>>
>
> Prof. Steven Jamar
> Howard University School of Law
> Associate Director, Institute of Intellectual Property and Social Justice
> (IIPSJ) Inc.
>
> ___
> 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 lis

RE: The impropriety of religious exemptions to child abuse laws

[Eric Rassbach]

It would still be interesting to hear Eugene's answer to Roger's hypothetical 
about religious accommodations.  Note that South Africa has a prohibition on 
male circumcision under 16, with religious and medical exemptions:

http://us-cdn.creamermedia.co.za/assets/articles/attachments/02888_childrensact38.pdf
  (on p.36)



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock
Sent: Monday, August 03, 2009 9:41 AM
To: Law & Religion issues for Law Academics; Roger Severino
Cc: religionlaw@lists.ucla.edu
Subject: RE: The impropriety of religious exemptions to child abuse laws


I think that medical opinion has shifted again.  There is now substantial 
evidence that cirumcision reduces the rate of HIV transmission.

Quoting Roger Severino :

>
> Eugene,
>
>
>
> How would your analysis apply to bans on circumcisions of male
> children?  From my limited reading on the subject, it appears that
> medical opinion is moving away from believing there are any
> substantial health benefits to the practice while recognizing
> non-negligible health risks.  So let's presume that this is indeed
> the case and states begin to ban child circumcisions because of the
> risks and because they are irreversible.  (A not entirely theoretical
> prospect
> http://www.cnn.com/2005/LAW/04/08/colb.circumcision/index.html).
>
> Presumably, Orthodox Jews and observant Muslims would seek exemptions
> to any such criminal bans.
>
>
>
> -Roger Severino
>
>
>
>
> From: vol...@law.ucla.edu
> To: religionlaw@lists.ucla.edu
> Date: Sun, 2 Aug 2009 21:40:52 -0700
> Subject: The impropriety of religious exemptions to child abuse laws
>
>
>
>
>
>I stress again that I?m not sure where the law should
> draw the line between permissible discipline and criminal battery.
> It obviously must, even if all spankings were outlawed, unless it
> becomes a crime even to pull a child to his room, or to forcibly
> seize a toy from him; but where it should do so, I don?t know.
>
>But this strikes me as among the least appealing cases
> for a religion-specific exemption:  If religious parents are entitled
> to an exemption from battery law but secular parents are not, then
> this means that a child of religious parents would have to suffer
> something that the law plausibly treats as a battery, simply because
> he is the child of religious parents.  That strikes me as a very hard
> inequality to defend, which suggests that even if we?re under a
> strict scrutiny exemptions regime, the government should be able to
> claim a compelling interest in giving all children equal protection
> against something that the law sees as battery, whether or not
> there?s a compelling interest in preventing the battery in the first
> place.
>
>Eugene
>
> Vance Koven writes:
>
>
> While in principle Eugene is right that whether the state intervenes
> shouldn't be determined by whether the parent is acting out of
> religious or secular motives, it is only in the case of religiously
> motivated parents that there is a legal hook on which to hang an
> interest in parenting methodology that requires the state to justify
> itself on the basis of compelling interest--unless you can engineer a
> free speech interest, which seems to me a stretch. It would be ironic
> indeed if the justification for parental authority is the concept of
> privacy.
> _
> Get your vacation photos on your phone!
> http://windowsliveformobile.com/en-us/photos/default.aspx?&OCID=0809TL-HM



Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713
___
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RE: The impropriety of religious exemptions to child abuse laws

[Volokh, Eugene]

   My analysis would be much the same as with corporal punishment.  
If the practice is not only valueless (and, as Doug says, it might not be) but 
seriously medically harmful either in terms of serious risk of other injury or 
of substantial loss of sensation (and I don't know enough on this to have an 
informed opinion), I would think that the children of religious parents would 
be entitled to the same protection against this medical harm as are the 
children of secular parents, or the children of parents of some other religion.

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock
Sent: Monday, August 03, 2009 6:41 AM
To: Law & Religion issues for Law Academics; Roger Severino
Cc: religionlaw@lists.ucla.edu
Subject: RE: The impropriety of religious exemptions to child abuse laws


I think that medical opinion has shifted again.  There is now substantial 
evidence that cirumcision reduces the rate of HIV transmission.

Quoting Roger Severino :

>
> Eugene,
>
>
>
> How would your analysis apply to bans on circumcisions of male
> children?  From my limited reading on the subject, it appears that
> medical opinion is moving away from believing there are any
> substantial health benefits to the practice while recognizing
> non-negligible health risks.  So let's presume that this is indeed
> the case and states begin to ban child circumcisions because of the
> risks and because they are irreversible.  (A not entirely theoretical
> prospect
> http://www.cnn.com/2005/LAW/04/08/colb.circumcision/index.html).
>
> Presumably, Orthodox Jews and observant Muslims would seek exemptions
> to any such criminal bans.
>
>
>
> -Roger Severino
>
>
>
>
> From: vol...@law.ucla.edu
> To: religionlaw@lists.ucla.edu
> Date: Sun, 2 Aug 2009 21:40:52 -0700
> Subject: The impropriety of religious exemptions to child abuse laws
>
>
>
>
>
>I stress again that I?m not sure where the law should
> draw the line between permissible discipline and criminal battery.
> It obviously must, even if all spankings were outlawed, unless it
> becomes a crime even to pull a child to his room, or to forcibly
> seize a toy from him; but where it should do so, I don?t know.
>
>But this strikes me as among the least appealing cases
> for a religion-specific exemption:  If religious parents are entitled
> to an exemption from battery law but secular parents are not, then
> this means that a child of religious parents would have to suffer
> something that the law plausibly treats as a battery, simply because
> he is the child of religious parents.  That strikes me as a very hard
> inequality to defend, which suggests that even if we?re under a
> strict scrutiny exemptions regime, the government should be able to
> claim a compelling interest in giving all children equal protection
> against something that the law sees as battery, whether or not
> there?s a compelling interest in preventing the battery in the first
> place.
>
>Eugene
>
> Vance Koven writes:
>
>
> While in principle Eugene is right that whether the state intervenes
> shouldn't be determined by whether the parent is acting out of
> religious or secular motives, it is only in the case of religiously
> motivated parents that there is a legal hook on which to hang an
> interest in parenting methodology that requires the state to justify
> itself on the basis of compelling interest--unless you can engineer a
> free speech interest, which seems to me a stretch. It would be ironic
> indeed if the justification for parental authority is the concept of
> privacy.
> _
> Get your vacation photos on your phone!
> http://windowsliveformobile.com/en-us/photos/default.aspx?&OCID=0809TL-HM



Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713
___
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Re: Wisconsin convicts parents for denial of medical treatment

[Steven Jamar]

On Aug 3, 2009, at 9:50 AM, Vance R. Koven wrote:


[snip]

 After all, a parent's glowering is useless without at least the  
implied credible threat of direct action if diplomacy fails.


This is a highly contestable statement at least to the extent it  
implies the necessity of corporal punishment with respect to many if  
not most children.  It may well be true that with some children if you  
spare the rod you spoil the child (even if you aren't an old testament  
adherent the principle may be sound), but with some if you use the rod  
you teach violence, and with others you never ever need corporal  
punishment.  Some restraint of the child's freedom may be necessary at  
times, but even that is not needed with at least some children.  And  
for others corporal punishment will not ever do any good.


As to my prior point -- even if parental control was premised on  
religious teachings (and is for many people still), that hardly makes  
the case that the constitutional right of parents to control their  
children's upbringing is based in freedom of religion.  Again, do you  
mean to suggest that atheists have no rights to control their kids?   
That statutes relating to age of emancipation are constitutionally  
valid only as to religious adherents?  That Jewish kids are  
emancipated at age 14?


Or are the statutes not unconstitutional for another reason?  Surely  
parental rights derive at least in part from IXth Amendment, even if  
you don't like the right of privacy as a basis.  (I submit that that  
is a terminology problem here -- the parental rights existed and exist  
under every theory of constitutional interpretation since the adoption  
of it, even if the term "privacy" is of "recent" vintage.


Steve


--
Prof. Steven D. Jamar vox:  202-806-8017
Associate Director, Institute of Intellectual Property and Social  
Justice http://iipsj.org

Howard University School of Law   fax:  202-806-8567
http://iipsj.com/SDJ/

Hope is not the conviction that something will turn out well, but the  
certainty that something makes sense regardless of how it turns out.

-- Vaclav Havel.







___
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Re: Wisconsin convicts parents for denial of medical treatment

[hamilton02]

Vance-- I think what troubles me most about your posts on this topic is the 
assumption that a "highly influential social subset" is "insidiously'?raising 
the bar to protect children.??Who is in this "subset"?? In fact, the bar is 
being raised by those who are doing scientific research into child behavior and 
needs, the increasingly vocal survivors of child maltreatment, and those who 
are on the front lines working to create a more protective sphere for children, 
e.g., the National Association of Regulatory Agencies.? The American Academy of 
Pediatrics also?is on the leading edge of protecting children from harm, 
including in families.?? Vilifying those who are working out of a 
child-protective position does not legitimate a religious exemption.??

In any event, this?thread started with the?Wisconsin case involving the death 
of a child based on medical neglect, not corporal punishment or 
non-life-threatening treatment/procedures like circumcision.? Getting back to 
the death scenario--- ?I think there should be no criminal or civil?religious 
exemption for medical neglect resulting in the death or disability of a child, 
and that states need to punish parents who cross this line and educate the 
public that?parents will be punished for failure to act in these 
circumstances.? The civil side is also?very important, because?if a?religious 
parent permits a child to die and?a divorced spouse is not in the home to 
prevent it, the divorced spouse is suffering a grievous loss.??Moreover, 
religious entities and co-believers?that encourage such neglect should be named 
co-defendants.??

Are there?those on the list who would disagree with?where I have drawn the line?

Marci


Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva University
? 






-Original Message-
From: Vance R. Koven 
To: Law & Religion issues for Law Academics 
Sent: Mon, Aug 3, 2009 9:50 am
Subject: Re: FW: Wisconsin convicts parents for denial of medical treatment


While I don't think it's necessarily profitable to delve into the mists of time 
to figure out where civilization got the idea that parents should control their 
children's behavior, I think it's beyond controversy that many people consider 
it part of their specifically religious duty to discipline their children. 
While it's conceivable to stretch the ever-extrudable concept of privacy to 
cover non-religious motivations, it must be said that the right of privacy is 
the invention of modern times, and parental control distinctly otherwise. My 
point was simply that inasmuch as religious doctrine in many cases has codified 
social practices once universally accepted but now under cultural attack from a 
particular highly influential social subset, we find ourselves in the position 
of having ready-made legal doctrines to address the religiously motivated, but 
not really, without such a stretch, available to secular adherents. Just one of 
those ironies of legal development.?



I'm not opposed to the bright-line rule, adopted after adequate discussion and 
consideration of all viewpoints, that says "if we can see the injury it's 
subject to legal regulation," I'm just opposed to the insidious extension of 
the rule to cover all the other ways parents may want to put junior in his 
place, including the occasional insult to the rump. After all, a parent's 
glowering is useless without at least the implied credible threat of direct 
action if diplomacy fails.







On Sun, Aug 2, 2009 at 10:04 PM, Steven Jamar  wrote:

the parental rights stem not from religion, surely! ?but rather from the 
constitutional right of privacy. ?or are you claiming, vance, that atheists 
don't have parental rights that can be protected by the constitution!?



Steve


On Sun, Aug 2, 2009 at 9:57 PM, Vance R. Koven  wrote:

Well really, I think some of you are assuming your conclusions. Whether 
something is child abuse is what is to be determined, not what is to be 
assumed.?



Those of us of a certain age may recall being spanked. It did no lasting harm, 
and may have done considerable good. However, whether it did or not, it was not 
considered a matter for state intervention, and civilization did not collapse 
on that account.?




The question is not, as Marci thinks, whether the law takes the side of the 
parent or the child, it's whether and under what conditions the law (i.e., the 
state) takes it unto itself to take sides and to intervene in intra-family 
affairs. We have consensus on serious bodily harm, maybe even on visible 
physical injuries like black eyes or bloody noses; when you get into 
speculating about psychological and social "injuries" it starts to shade over 
into state ownership of children. My smaller point is that religions have 
always had rather a lot to say about the relationships within families, 
particularly between parents and children, which is a zone that a free exercise 
clause worthy of the name ought 

Re: Wisconsin convicts parents for denial of medical treatment

[hamilton02]

In response to Vance's question---Yes, objective standards are available from 
scientific sources.  The question is whether a child is being harmed, and the 
level of harm can be determined by the extraordinary amount of research that is 
being done in the child abuse/child wellness arena.  Legislatures are capable 
of drawing the line on the basis of these objective standards, and courts are 
capable of factfinding on the basis of experts.  Obviously, there will be gray 
areas, but the scientific information goes a long way to rebutting the implicit 
claims by those protecting parental rights that children's well-being is 
improved by pain and/or browbeating.  Thus, the issue is children's rights to 
bodily integrity and protection from serious harm vs. parental rights to 
control their children.  That balancing is built into the law via Pierce v. 
Society of Sisters and Prince v. Massachusetts.

Marci 


-Original Message-
From: Vance R. Koven 
To: Law & Religion issues for Law Academics 
Sent: Sun, Aug 2, 2009 9:57 pm
Subject: Re: FW: Wisconsin convicts parents for denial of medical treatment


Well really, I think some of you are assuming your conclusions. Whether 
something is child abuse is what is to be determined, not what is to be 
assumed. 



Those of us of a certain age may recall being spanked. It did no lasting harm, 
and may have done considerable good. However, whether it did or not, it was not 
considered a matter20for state intervention, and civilization did not collapse 
on that account. 




The question is not, as Marci thinks, whether the law takes the side of the 
parent or the child, it's whether and under what conditions the law (i.e., the 
state) takes it unto itself to take sides and to intervene in intra-family 
affairs. We have consensus on serious bodily harm, maybe even on visible 
physical injuries like black eyes or bloody noses; when you get into 
speculating about psychological and social "injuries" it starts to shade over 
into state ownership of children. My smaller point is that religions have 
always had rather a lot to say about the relationships within families, 
particularly between parents and children, which is a zone that a free exercise 
clause worthy of the name ought to respect. And my larger point was, and 
remains, whether the state is bound, regardless of any other consideration 
(such as religious freedom) to take whatever view of child-rearing the secular 
upper middle class decides at any given moment to take. We have developed a 
rather Dickensian, and some might say irrationally sentimental, view of 
children and childhood, and I wonder if the Constitution really offers no 
refuge at all from having those sentiments shoved down the throats of 
dissenters. 




While in principle Eugene is right that whether the state intervenes shouldn't 
be determined by whether the parent is acting out of religious or secular 
motives, it is only in the case of religiously motivated parents that there
is a legal hook on which to hang an interest in parenting methodology that 
requires the state to justify itself on the basis of compelling 
interest--unless you can engineer a free speech interest, which seems to me a 
stretch. It would be ironic indeed if the justification for parental authority 
is the concept of privacy.




So the question remains, can the law come up with reasonably objective 
standards for determining when it will leave parental decisions on discipline 
to the parents? Is a black eye to be treated differently from a black-and-blue 
bum? Are parents to be held prisoner by their children's (purported) eggshell 
psyches?


On Sun, Aug 2, 2009 at 7:08 PM, Paul Finkelman  wrote:





Eugene:

Are you arguing that forcing a child to stay in his/her room is the equivalent 
of hitting someone hard enough to leave marks/ bruise that person.

Parental authority presumably allows many things that cannot be done to adults, 
starting with sending children to bed against their will.  Beating a child to 
the point of bruising sounds like abuse.  Keeping a child in the house, like 
many other aspects of child rearing, is not likely to lead to physical harms of 
the child.  Beating children does that -- and often leads to their death.. 



Paul Finkelman
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)

pf...@albanylaw.edu

www.paulfinkelman.com


--- On Sun
, 8/2/09, Volokh, Eugene  wrote:


From: Volokh, Eugene 
Subject: FW: Wisconsin convicts parents for denial of medical treatment

To: "Law & Religion issues for Law Academics" 

Date: Sunday, August 2, 2009, 5:39 PM





   I should note, though, that I agree that parents’ rights to 
impose corporal punishment on their children – or absence of such rights, if 
the legal system ultimately comes to that – should not turn on the parents’ 
religiosity.

 

   Eugene

 



From

RE: The impropriety of religious exemptions to child abuse laws

[Mark Sabel]

 

 

From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Monday, August 03, 2009 10:16 AM
To: Law & Religion issues for Law Academics
Subject: RE: The impropriety of religious exemptions to child abuse laws

 

   My analysis would be much the same as with corporal
punishment.  If the practice is not only valueless (and, as Doug says, it
might not be) 

 

In deciding whether a practice is valueless, would one
consider the psychological effects of engaging in a ritual spanning the
globe and practiced continually for millennia despite opposition -sometimes
violent, sometimes fatal -  from myriad forms of state authority?

 

In certain disputes involving Native Americans, the "best
interests of the Tribe" standard is used instead of the "best interests of
the child."  Would it be appropriate or desirable for such a standard to
have any applicability here?  

 

-Mark Sabel

 

 

 

but seriously medically harmful either in terms of serious risk of other
injury or of substantial loss of sensation (and I don't know enough on this
to have an informed opinion), I would think that the children of religious
parents would be entitled to the same protection against this medical harm
as are the children of secular parents, or the children of parents of some
other religion.

 

   Eugene

 

From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock
Sent: Monday, August 03, 2009 6:41 AM
To: Law & Religion issues for Law Academics; Roger Severino
Cc: religionlaw@lists.ucla.edu
Subject: RE: The impropriety of religious exemptions to child abuse laws

 

I think that medical opinion has shifted again.  There is now substantial
evidence that cirumcision reduces the rate of HIV transmission.  

Quoting Roger Severino :

>
> Eugene,
>
>
>
> How would your analysis apply to bans on circumcisions of male 
> children?  From my limited reading on the subject, it appears that 
> medical opinion is moving away from believing there are any 
> substantial health benefits to the practice while recognizing 
> non-negligible health risks.  So let's presume that this is indeed 
> the case and states begin to ban child circumcisions because of the 
> risks and because they are irreversible.  (A not entirely theoretical 
> prospect 
> http://www.cnn.com/2005/LAW/04/08/colb.circumcision/index.html).
>
> Presumably, Orthodox Jews and observant Muslims would seek exemptions 
> to any such criminal bans.
>
>
>
> -Roger Severino
>
>
>
>
> From: vol...@law.ucla.edu
> To: religionlaw@lists.ucla.edu
> Date: Sun, 2 Aug 2009 21:40:52 -0700
> Subject: The impropriety of religious exemptions to child abuse laws
>
>
>
>
>
>I stress again that I?m not sure where the law should 
> draw the line between permissible discipline and criminal battery.  
> It obviously must, even if all spankings were outlawed, unless it 
> becomes a crime even to pull a child to his room, or to forcibly 
> seize a toy from him; but where it should do so, I don?t know.
>
>But this strikes me as among the least appealing cases 
> for a religion-specific exemption:  If religious parents are entitled 
> to an exemption from battery law but secular parents are not, then 
> this means that a child of religious parents would have to suffer 
> something that the law plausibly treats as a battery, simply because 
> he is the child of religious parents.  That strikes me as a very hard 
> inequality to defend, which suggests that even if we?re under a 
> strict scrutiny exemptions regime, the government should be able to 
> claim a compelling interest in giving all children equal protection 
> against something that the law sees as battery, whether or not 
> there?s a compelling interest in preventing the battery in the first 
> place.
>
>Eugene
>
> Vance Koven writes:
>
>
> While in principle Eugene is right that whether the state intervenes 
> shouldn't be determined by whether the parent is acting out of 
> religious or secular motives, it is only in the case of religiously 
> motivated parents that there is a legal hook on which to hang an 
> interest in parenting methodology that requires the state to justify 
> itself on the basis of compelling interest--unless you can engineer a 
> free speech interest, which seems to me a stretch. It would be ironic 
> indeed if the justification for parental authority is the concept of 
> privacy.
> _
> Get your vacation photos on your phone!
> http://windowsliveformobile.com/en-us/photos/default.aspx?

&OCID=0809TL-HM

 

Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713

___

RE: The impropriety of religious exemptions to child abuse laws

[Volokh, Eugene]

  (1)  I do agree that past experience with a practice is relevant to 
determining the likely psychological harm that it causes.  (I focus here on 
harm rather than value; in my original analysis, I should have said that I was 
discussing practices that were "medically valueless" rather than just 
"valueless" - I wasn't referring to judgments about spiritual value, which I 
don't think that courts can determine.)  I wouldn't simply stress that the 
practice has been practiced continually for millennia despite opposition; many 
bad practices, as well as good practices, have been.  But I would look to 
whether men who have been circumcised have indeed had serious problems, medical 
or psychological, as a result; and in the absence of scientific evidence on 
that subject, the felt and reported experiences of such people - including ones 
who don't have a sense of religious obligation on the subject - are certainly 
quite important evidence.

  (2)  On the other hand, I would think that any "best interests of the 
Tribe" standard as to religious groups is certainly not constitutionally 
mandated, and I would think is constitutionally forbidden - first, because of 
excessive entanglement, and, second, because it subordinates the interests of 
certain people (who are the rightsholders under our constitutional scheme) 
because of the religion to which their parents happen to belong, and thus 
treats them unequally based on their parents' religion.  To the extent that 
this is permissible as to Indian tribes, it is because the tribes are seen as 
political entities that have a sort of quasi-sovereign authority over their 
members.  That certainly has not been the view in the U.S., nor should it be 
(though my understanding is that the millet approach to family law in some 
Middle Eastern and South Asian countries does take such a view in certain 
contexts).

  Eugene

   My analysis would be much the same as with corporal punishment.  
If the practice is not only valueless (and, as Doug says, it might not be)

In deciding whether a practice is valueless, would one consider 
the psychological effects of engaging in a ritual spanning the globe and 
practiced continually for millennia despite opposition -sometimes violent, 
sometimes fatal -  from myriad forms of state authority?

In certain disputes involving Native Americans, the "best 
interests of the Tribe" standard is used instead of the "best interests of the 
child."  Would it be appropriate or desirable for such a standard to have any 
applicability here?

-Mark Sabel



but seriously medically harmful either in terms of serious risk of other injury 
or of substantial loss of sensation (and I don't know enough on this to have an 
informed opinion), I would think that the children of religious parents would 
be entitled to the same protection against this medical harm as are the 
children of secular parents, or the children of parents of some other religion.

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock
Sent: Monday, August 03, 2009 6:41 AM
To: Law & Religion issues for Law Academics; Roger Severino
Cc: religionlaw@lists.ucla.edu
Subject: RE: The impropriety of religious exemptions to child abuse laws


I think that medical opinion has shifted again.  There is now substantial 
evidence that cirumcision reduces the rate of HIV transmission.

Quoting Roger Severino :

>
> Eugene,
>
>
>
> How would your analysis apply to bans on circumcisions of male
> children?  From my limited reading on the subject, it appears that
> medical opinion is moving away from believing there are any
> substantial health benefits to the practice while recognizing
> non-negligible health risks.  So let's presume that this is indeed
> the case and states begin to ban child circumcisions because of the
> risks and because they are irreversible.  (A not entirely theoretical
> prospect
> http://www.cnn.com/2005/LAW/04/08/colb.circumcision/index.html).
>
> Presumably, Orthodox Jews and observant Muslims would seek exemptions
> to any such criminal bans.
>
>
>
> -Roger Severino
>
>
>
>
> From: vol...@law.ucla.edu
> To: religionlaw@lists.ucla.edu
> Date: Sun, 2 Aug 2009 21:40:52 -0700
> Subject: The impropriety of religious exemptions to child abuse laws
>
>
>
>
>
>I stress again that I?m not sure where the law should
> draw the line between permissible discipline and criminal battery.
> It obviously must, even if all spankings were outlawed, unless it
> becomes a crime even to pull a child to his room, or to forcibly
> seize a toy from him; but where it should do so, I don?t know.
>
>But this strikes me as among the least appealing cases
> for a religion-specific exemption:  If religious parents are entitled
> to an exemption from battery law but secular parents are not, then
> this means that a child

RE: The impropriety of religious exemptions to child abuse laws

[Roger Severino]

   Let's shift the hypo a little bit and presume that the ban is written as 
follows "all circumcisions performed on male children under age 16 for 
ceremonial purposes are hereby prohibited in the state of California."  Would 
the state be justified in such a ban or would we have a Lukumi problem?


   Or, what if the statute simply banned all circumcision done for 
"non-medical" reasons.  Would this still conflict with the principles laid out 
in Fraternal Order of Police? ("we conclude that the Department's decision to 
provide medical exemptions while refusing religious exemptions is sufficiently 
suggestive of discriminatory intent so as to trigger heightened scrutiny under 
Smith and Lukumi.").  I suppose a ban on all brain surgery done for 
"non-medical reasons" wouldn't pose a problem, but when a practice is so 
closely tied to a particular religious expression, and when the health risks 
are fairly low or up for debate, I wonder if this changes the analysis.  
Wisconsin v. Yoder comes to mind, which was premised on the Free Exercise 
rights of parents to keep their children out of high school regardless of the 
child's (or the state's) wishes. 
  

-Roger Severino

 
 


From: vol...@law.ucla.edu
To: religionlaw@lists.ucla.edu
Date: Mon, 3 Aug 2009 08:16:06 -0700
Subject: RE: The impropriety of religious exemptions to child abuse laws





   My analysis would be much the same as with corporal punishment.  
If the practice is not only valueless (and, as Doug says, it might not be) but 
seriously medically harmful either in terms of serious risk of other injury or 
of substantial loss of sensation (and I don’t know enough on this to have an 
informed opinion), I would think that the children of religious parents would 
be entitled to the same protection against this medical harm as are the 
children of secular parents, or the children of parents of some other religion.
 
   Eugene
 



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock
Sent: Monday, August 03, 2009 6:41 AM
To: Law & Religion issues for Law Academics; Roger Severino
Cc: religionlaw@lists.ucla.edu
Subject: RE: The impropriety of religious exemptions to child abuse laws
 
I think that medical opinion has shifted again.  There is now substantial 
evidence that cirumcision reduces the rate of HIV transmission.  

Quoting Roger Severino :

>
> Eugene,
>
>
>
> How would your analysis apply to bans on circumcisions of male 
> children?  From my limited reading on the subject, it appears that 
> medical opinion is moving away from believing there are any 
> substantial health benefits to the practice while recognizing 
> non-negligible health risks.  So let's presume that this is indeed 
> the case and states begin to ban child circumcisions because of the 
> risks and because they are irreversible.  (A not entirely theoretical 
> prospect 
> http://www.cnn.com/2005/LAW/04/08/colb.circumcision/index.html).
>
> Presumably, Orthodox Jews and observant Muslims would seek exemptions 
> to any such criminal bans.
>
>
>
> -Roger Severino
>
>
>
>
> From: vol...@law.ucla.edu
> To: religionlaw@lists.ucla.edu
> Date: Sun, 2 Aug 2009 21:40:52 -0700
> Subject: The impropriety of religious exemptions to child abuse laws
>
>
>
>
>
>I stress again that I?m not sure where the law should 
> draw the line between permissible discipline and criminal battery.  
> It obviously must, even if all spankings were outlawed, unless it 
> becomes a crime even to pull a child to his room, or to forcibly 
> seize a toy from him; but where it should do so, I don?t know.
>
>But this strikes me as among the least appealing cases 
> for a religion-specific exemption:  If religious parents are entitled 
> to an exemption from battery law but secular parents are not, then 
> this means that a child of religious parents would have to suffer 
> something that the law plausibly treats as a battery, simply because 
> he is the child of religious parents.  That strikes me as a very hard 
> inequality to defend, which suggests that even if we?re under a 
> strict scrutiny exemptions regime, the government should be able to 
> claim a compelling interest in giving all children equal protection 
> against something that the law sees as battery, whether or not 
> there?s a compelling interest in preventing the battery in the first 
> place.
>
>Eugene
>
> Vance Koven writes:
>
>
> While in principle Eugene is right that whether the state intervenes 
> shouldn't be determined by whether the parent is acting out of 
> religious or secular motives, it is only in the case of religiously 
> motivated parents that there is a legal hook on which to hang an 
> interest in parenting methodology that requires the state to justify 
> itself on the basis of compelling interest--unless you can engineer a 
> free speech interest, which seems to me a str

RE: The impropriety of religious exemptions to child abuse laws

[Friedman, Howard M.]

In this thread, no one so far has mentioned the religious right's
long-standing opposition to the U.N. Convention on the Rights of the
Child, growing largely out of concern that it somehow interferes with
parental rights. This has made the U.S the only nation other than
Somalia not to ratify the treaty. While not directly applicable, I think
this shows the strong presumption in practice in the U.S. to honor
parental wishes.

 

*
Howard M. Friedman 
Disting. Univ. Professor Emeritus
University of Toledo College of Law
Toledo, OH 43606-3390 
Phone: (419) 530-2911, FAX (419) 530-4732 
E-mail: howard.fried...@utoledo.edu 
* 



From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Roger Severino
Sent: Monday, August 03, 2009 12:41 PM
To: religionlaw@lists.ucla.edu
Subject: RE: The impropriety of religious exemptions to child abuse laws

 

   Let's shift the hypo a little bit and presume that the ban is
written as follows "all circumcisions performed on male children under
age 16 for ceremonial purposes are hereby prohibited in the state of
California."  Would the state be justified in such a ban or would we
have a Lukumi problem?

   Or, what if the statute simply banned all circumcision done for
"non-medical" reasons.  Would this still conflict with the principles
laid out in Fraternal Order of Police? ("we conclude that the
Department's decision to provide medical exemptions while refusing
religious exemptions is sufficiently suggestive of discriminatory intent
so as to trigger heightened scrutiny under Smith and Lukumi.").  I
suppose a ban on all brain surgery done for "non-medical reasons"
wouldn't pose a problem, but when a practice is so closely tied to a
particular religious expression, and when the health risks are fairly
low or up for debate, I wonder if this changes the analysis.  Wisconsin
v. Yoder comes to mind, which was premised on the Free Exercise rights
of parents to keep their children out of high school regardless of the
child's (or the state's) wishes. 
  
-Roger Severino
 
 



From: vol...@law.ucla.edu
To: religionlaw@lists.ucla.edu
Date: Mon, 3 Aug 2009 08:16:06 -0700
Subject: RE: The impropriety of religious exemptions to child abuse laws

   My analysis would be much the same as with corporal
punishment.  If the practice is not only valueless (and, as Doug says,
it might not be) but seriously medically harmful either in terms of
serious risk of other injury or of substantial loss of sensation (and I
don't know enough on this to have an informed opinion), I would think
that the children of religious parents would be entitled to the same
protection against this medical harm as are the children of secular
parents, or the children of parents of some other religion.

 

   Eugene

 

From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock
Sent: Monday, August 03, 2009 6:41 AM
To: Law & Religion issues for Law Academics; Roger Severino
Cc: religionlaw@lists.ucla.edu
Subject: RE: The impropriety of religious exemptions to child abuse laws

 

I think that medical opinion has shifted again.  There is now
substantial evidence that cirumcision reduces the rate of HIV
transmission.  
Quoting Roger Severino :

>
> Eugene,
>
>
>
> How would your analysis apply to bans on circumcisions of male 
> children?  >From my limited reading on the subject, it appears that 
> medical opinion is moving away from believing there are any 
> substantial health benefits to the practice while recognizing 
> non-negligible health risks.  So let's presume that this is indeed 
> the case and states begin to ban child circumcisions because of the 
> risks and because they are irreversible.  (A not entirely theoretical 
> prospect 
> http://www.cnn.com/2005/LAW/04/08/colb.circumcision/index.html).
>
> Presumably, Orthodox Jews and observant Muslims would seek exemptions 
> to any such criminal bans.
>
>
>
> -Roger Severino
>
>
>
>
> From: vol...@law.ucla.edu
> To: religionlaw@lists.ucla.edu
> Date: Sun, 2 Aug 2009 21:40:52 -0700
> Subject: The impropriety of religious exemptions to child abuse laws
>
>
>
>
>
>I stress again that I?m not sure where the law should 
> draw the line between permissible discipline and criminal battery.  
> It obviously must, even if all spankings were outlawed, unless it 
> becomes a crime even to pull a child to his room, or to forcibly 
> seize a toy from him; but where it should do so, I don?t know.
>
>But this strikes me as among the least appealing cases 
> for a religion-specific exemption:  If religious parents are entitled 
> to an exemption from battery law but secular parents are not, then 
> this means that a child of religious parents would have to suffer 
> something that the 

RE: The impropriety of religious exemptions to child abuse laws

[Volokh, Eugene]

(1)  If the health risks of circumcision - and also the risks of 
substantial loss of sensation - are substantial, and the government therefore 
generally bans the practice, then it seems to me that the government ought not 
deny children of religious parents the protection that it offers to children of 
secular parents.  A person's right to protection from physical harm shouldn't 
turn on whether his parents are religious.  Such selective protection strikes 
me as certainly not constitutionally mandated, or mandated by religious 
exemption regimes.  And I think it would actually be constitutionally 
prohibited as well.

(2)  Nor does limiting this to non-medically-justified 
circumcisions - assuming that's a small subset of circumcisions called for by 
the particular medical needs of the particular patient - change the analysis.  
The premise of the hypothetical circumcision ban would be that circumcision is 
medically harmful.  If there is particularized evidence that for this patient 
circumcision would on balance be more medically beneficial than harmful, the 
premise goes away, and it makes sense to lift the prohibition as well.  Nor do 
I see anything in this that strongly suggests religiously discriminatory intent.

(3)  If, however, circumcision generally doesn't seem to be 
medically risky, or substantially damaging to the subjects' sexual sensation 
(when they become adults), then I don't see much reason to ban it, either for 
religious parents or for secular parents.

(4)  I take it, by the way, that this is entirely consistent with 
the prohibition on female genital mutilation, which I take it that list members 
would generally agree should be fully applicable to religious parents as well 
as to secular ones:  Female genital mutilation, as I understand it, seriously 
interferes with women's sexual sensation, plus poses a serious risk of other 
medical complications.  (I would say that either alone would suffice for 
banning it.)  The reason I would support treat male circumcision differently 
(again, for secular parents as well as religious ones) is that there just 
isn't, to my knowledge, enough evidence of similar harms for male circumcision.

Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Roger Severino
Sent: Monday, August 03, 2009 9:41 AM
To: religionlaw@lists.ucla.edu
Subject: RE: The impropriety of religious exemptions to child abuse laws

   Let's shift the hypo a little bit and presume that the ban is written as 
follows "all circumcisions performed on male children under age 16 for 
ceremonial purposes are hereby prohibited in the state of California."  Would 
the state be justified in such a ban or would we have a Lukumi problem?

   Or, what if the statute simply banned all circumcision done for 
"non-medical" reasons.  Would this still conflict with the principles laid out 
in Fraternal Order of Police? ("we conclude that the Department's decision to 
provide medical exemptions while refusing religious exemptions is sufficiently 
suggestive of discriminatory intent so as to trigger heightened scrutiny under 
Smith and Lukumi.").  I suppose a ban on all brain surgery done for 
"non-medical reasons" wouldn't pose a problem, but when a practice is so 
closely tied to a particular religious expression, and when the health risks 
are fairly low or up for debate, I wonder if this changes the analysis.  
Wisconsin v. Yoder comes to mind, which was premised on the Free Exercise 
rights of parents to keep their children out of high school regardless of the 
child's (or the state's) wishes.

-Roger Severino



From: vol...@law.ucla.edu
To: religionlaw@lists.ucla.edu
Date: Mon, 3 Aug 2009 08:16:06 -0700
Subject: RE: The impropriety of religious exemptions to child abuse laws
   My analysis would be much the same as with corporal punishment.  
If the practice is not only valueless (and, as Doug says, it might not be) but 
seriously medically harmful either in terms of serious risk of other injury or 
of substantial loss of sensation (and I don't know enough on this to have an 
informed opinion), I would think that the children of religious parents would 
be entitled to the same protection against this medical harm as are the 
children of secular parents, or the children of parents of some other religion.

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock
Sent: Monday, August 03, 2009 6:41 AM
To: Law & Religion issues for Law Academics; Roger Severino
Cc: religionlaw@lists.ucla.edu
Subject: RE: The impropriety of religious exemptions to child abuse laws

I think that medical opinion has shifted again.  There is now substantial 
evidence that cirumcision reduces the rate of HIV transmission.
Quoting Roger Severino :

>
> Eugene,
>
>
>
> How

Re: The impropriety of religious exemptions to child abuse laws

[hamilton02]

That is a  large assumption.  In all likelihood, the failure to ratify the 
Convention on the Rights of the Child is a result of particularized lobbying of 
just enough senators to avoid ratification.  That hardly stands for the 
proposition that parents have constitutionally enshrined rights to harm their 
children just because they are parents.  Prince and Pierce are far more 
indicative of where the constitutional line is to be drawn (i.e., between the 
rights of children and rights of parents) than the failure to ratify a treaty, 
which the US fails to do on a regular basis for political, rather than 
constitutional, reasons.

Marci





-Original Message-
From: Friedman, Howard M. 
To: Law & Religion issues for Law Academics 
Sent: Mon, Aug 3, 2009 1:42 pm
Subject: RE: The impropriety of religious exemptions to child abuse laws




In this thread, no one so far has mentioned the religious right’s long-standing 
opposition to the U.N. Convention on the Rights of the Child, growing largely 
out of concern that it somehow interferes with parental rights. This has made 
the U.S the only nation other than Somalia not to ratify the treaty. While not 
directly applicable, I think this shows the strong presumption in practice in 
the U.S. to honor parental wishes.

 


*
Howard M. Friedman
Disting. Univ. Professor Emeritus
University of Toledo College of Law
Toledo, OH 43606-3390
Phone: (419) 530-2911, FAX (4
19) 530-4732
E-mail: howard.fried...@utoledo.edu
*





From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Roger Severino
Sent: Monday, August 03, 2009 12:41 PM
To: religionlaw@lists.ucla.edu
Subject: RE: The impropriety of religious exemptions to child abuse laws


 

   Let's shift the hypo a little bit and presume that the ban is written as 
follows "all circumcisions performed on male children under age 16 for 
ceremonial purposes are hereby prohibited in the state of California."  Would 
the state be justified in such a ban or would we have a Lukumi problem?

   Or, what if the statute simply banned all circumcision done for 
"non-medical" reasons.  Would this still conflict with the principles laid out 
in Fraternal Order of Police? ("we conclude that the Department's decision to 
provide medical exemptions while refusing religious exemptions is sufficiently 
suggestive of discriminatory intent so as to trigger heightened scrutiny under 
Smith and Lukumi.").  I suppose a ban on all brain surgery done for 
"non-medical reasons" wouldn't pose a problem, but when a practice is so 
closely tied to a particular religious expression, and when the health risks 
are fairly low or up for debate, I wonder if this changes the analysis.  
Wisconsin v. Yoder comes to mind, which was premised on the Free Exercise 
rights of parents to keep their children out of high school regardless of the 
child
's (or the state's) wishes. 
 
-Roger Severino
 
 



From: vol...@law.ucla.edu
To: religionlaw@lists.ucla.edu
Date: Mon, 3 Aug 2009 08:16:06 -0700
Subject: RE: The impropriety of religious exemptions to child abuse laws


   My analysis would be much the same as with corporal punishment.  
If the practice is not only valueless (and, as Doug says, it might not be) but 
seriously medically harmful either in terms of serious risk of other injury or 
of substantial loss of sensation (and I don’t know enough on this to have an 
informed opinion), I would think that the children of religious parents would 
be entitled to the same protection against this medical harm as are the 
children of secular parents, or the children of parents of some other religion.

 

   Eugene

 




From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock
Sent: Monday, August 03, 2009 6:41 AM
To: Law & Religion issues for Law Academics; Roger Severino
Cc: religionlaw@lists.ucla.edu
Subject: RE: The impropriety of religious exemptions to child abuse laws



 

I think that medical opinion has shifted again.  There is now substantial 
evidence that cirumcision reduces the rate of HIV transmission. 
Quoting Roger Severino :

>
> Eugene,
>
>
>
> How would your analysis apply to bans=2
0on circumcisions of male
> children?  >From my limited reading on the subject, it appears that
> medical opinion is moving away from believing there are any
> substantial health benefits to the practice while recognizing
> non-negligible health risks.  So let's presume that this is indeed
> the case and states begin to ban child circumcisions because of the
> risks and because they are irreversible.  (A not entirely theoretical
> prospect
> http://www.cnn.com/2005/LAW/04/08/colb.circumcision/index.html).
>
> Presumably, Orthodox Jews and observant Muslims would seek exemptions
> to any such criminal bans.
>
>
>
> -Roger Severino
>
>
>
>
> From: vol...

The U.N. Convention on the Rights of the Child

[Volokh, Eugene]

Well, I'm not a member of the religious right, and I'm glad the 
U.S. hasn't signed this Convention.  For instance, consider art. 3, sec. 1, 
which says "In all actions concerning children, whether undertaken by public or 
private social welfare institutions, courts of law, administrative authorities 
or legislative bodies, the best interests of the child shall be a primary 
consideration."  This would seemingly mean presumably that attempts to 
terminate parental rights must be adjudicated under the "best interests" 
standard rather than under the unfitness standard.  Likewise, it might suggest 
that Palmore v. Sidoti is improper to the extent that it holds that the Equal 
Protection Clause trumps the "best interests" analysis, as are some of the 
state court decisions that find that divorced parents' First Amendment rights 
likewise trump the "best interest" analysis.

Even private social welfare institutions would have to make the child's best 
interests a primary consideration, even when no risk of imminent physical or 
serious psychological harm to the child would take place - presumably such 
social welfare institutions couldn't focus on the parents' preferences, or on 
the institution's and parents' shared religious views.

Likewise, under article 12, section 1, sufficiently old and mature children 
would have to have the legal right "to express [their] views freely in all 
matters affecting the child," and to have "due weight" given to those views.  
Whether that's sensible or not, I don't think that the entirety of the U.S. 
should be bound to such a rule as a matter of international commitment.

Article 13, section 1, protects a broad range of children's "freedom of 
expression," quite possibly against parental restrictions - the provision is 
not limited to actions by "States Parties."

Article 14, section 3 seems to overturn Smith in some measure ("Freedom to 
manifest one's religion or beliefs may be subject only to such limitations as 
are prescribed by law and are necessary to protect public safety, order, health 
or morals, or the fundamental rights and freedoms of others"), if "manifest" is 
read as "act based on"; naturally some in the Religious Right might like that, 
but I don't, since I approve of Smith.

Article 17 calls on states parties to "ensure that [a] child has access to 
information and material from a diversity of national and international 
sources," which again sounds like it might require or at least authorize the 
government to mandate that parents expose children to certain kinds of 
information.  Again, if such a rule is proper, I don't think it should be 
adopted as a matter for the whole country right now as a matter of 
international commitment.  Nor do I think that our government should undertake 
a binding international obligation to, for instance, "Encourage the mass media 
to have particular regard to the linguistic needs of the child who belongs to a 
minority group or who is indigenous," or to "Encourage the development of 
appropriate guidelines for the protection of the child from information and 
material injurious to his or her well-being."

Article 18, section 3 requires the government to "take all appropriate measures 
to ensure that children of working parents have the right to benefit from 
child-care services and facilities for which they are eligible"; I'm not 
certain what it means, but again I don't think that we should be undertaking 
binding commitments along these lines.  Similarly, article 24, section 3 
establishes a right to assistance for disabled children, something that I think 
should be left to the domestic political process, and free to ebb and flow with 
our views about proper welfare benefits in such situations, rather than 
undertaken as a matter of international commitment.  Article 27 likewise 
suggests various welfare state obligations.  Article 28 requires compulsory and 
free primary education, something that is already the American rule but that 
again should be free to ebb and flow with local views.

Article 20, section 3 says that in foster placements, "due regard shall be paid 
to the desirability of continuity in a child's upbringing and to the child's 
ethnic, religious, cultural and linguistic background."  Some of this might be 
sensible, some might be constitutionally troublesome, but in any event none of 
it strikes me as something that we should commit ourselves to in a legally 
binding manner.

Article 37(a) not only bans the death penalty for crimes committed by 
under-18-year-olds, but also bans life imprisonment without parole, again an 
obligation that I don't think we should be undertaking.

To be sure, I expect that nearly all of these things could be evaded in various 
ways, or in any event might not be directly binding to the extent that the 
Convention is not self-executing.  But I don't think that we should undertake 
international commitments with an eye towards expecting that we will evade them

RE: The impropriety of religious exemptions to child abuse laws

[Roger Severino]

>> A person’s right to protection from physical harm shouldn’t turn on 
>> whether his parents are religious.  Such selective protection strikes me as 
>> certainly not constitutionally mandated, or mandated by religious exemption 
>> regimes.  And I think it would actually be constitutionally prohibited as 
>> well.

 

As you mention in another post, psychological harms should be considered as 
well.  But France has used just such harms to justify its banning of head 
scarves in state schools, the rationale being that headscarves stigmatize young 
female students.  If such a rule and rationale were imported to America, but 
legislators are later pressured to add an exemption for religious headwear, are 
you saying they would be constitutionally prohibited from doing so? 

 

Going back to Yoder, there the question of which children received or didn't 
receive some state-mandated high school education turned precisely on the 
religious identity of the parents.  Do you disagree with that holding?  (For 
the record, in my earlier post I said that the parents in Yoder were allowed to 
act "regardless" of the wishes of the child, but that was a presumption on my 
part as the court did not actually rule on that precise issue).

 

> (4)  I take it, by the way, that this is entirely consistent with the 
> prohibition on female genital mutilation, which I take it that list members 
> would generally agree should be fully applicable to religious parents as well 
> as to secular ones:  Female genital mutilation, as I understand it, seriously 
> interferes with women’s sexual sensation, plus poses a serious risk of other 
> medical complications.  (I would say that either alone would suffice for 
> banning it.)  The reason I would support treat male circumcision differently 
> (again, for secular parents as well as religious ones) is that there just 
> isn’t, to my knowledge, enough evidence of similar harms for male 
> circumcision.


 
No argument here.  Female genital mutilation is incredibly destructive and 
unjustifiable, even if done in a hospital setting, which is not likely the 
common practice as I understand it.
 
-Roger Severino
 
 




From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Roger Severino
Sent: Monday, August 03, 2009 9:41 AM
To: religionlaw@lists.ucla.edu
Subject: RE: The impropriety of religious exemptions to child abuse laws
 
   Let's shift the hypo a little bit and presume that the ban is written as 
follows "all circumcisions performed on male children under age 16 for 
ceremonial purposes are hereby prohibited in the state of California."  Would 
the state be justified in such a ban or would we have a Lukumi problem?

   Or, what if the statute simply banned all circumcision done for 
"non-medical" reasons.  Would this still conflict with the principles laid out 
in Fraternal Order of Police? ("we conclude that the Department's decision to 
provide medical exemptions while refusing religious exemptions is sufficiently 
suggestive of discriminatory intent so as to trigger heightened scrutiny under 
Smith and Lukumi.").  I suppose a ban on all brain surgery done for 
"non-medical reasons" wouldn't pose a problem, but when a practice is so 
closely tied to a particular religious expression, and when the health risks 
are fairly low or up for debate, I wonder if this changes the analysis.  
Wisconsin v. Yoder comes to mind, which was premised on the Free Exercise 
rights of parents to keep their children out of high school regardless of the 
child's (or the state's) wishes. 
  
-Roger Severino
 
 



From: vol...@law.ucla.edu
To: religionlaw@lists.ucla.edu
Date: Mon, 3 Aug 2009 08:16:06 -0700
Subject: RE: The impropriety of religious exemptions to child abuse laws

   My analysis would be much the same as with corporal punishment.  
If the practice is not only valueless (and, as Doug says, it might not be) but 
seriously medically harmful either in terms of serious risk of other injury or 
of substantial loss of sensation (and I don’t know enough on this to have an 
informed opinion), I would think that the children of religious parents would 
be entitled to the same protection against this medical harm as are the 
children of secular parents, or the children of parents of some other religion.
 
   Eugene
 



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock
Sent: Monday, August 03, 2009 6:41 AM
To: Law & Religion issues for Law Academics; Roger Severino
Cc: religionlaw@lists.ucla.edu
Subject: RE: The impropriety of religious exemptions to child abuse laws
 
I think that medical opinion has shifted again.  There is now substantial 
evidence that cirumcision reduces the rate of HIV transmission.  
Quoting Roger Severino :

>
> Eugene,
>
>
>
> How would your analysis apply to bans on circumcisions of male 
> children?  >From m

RE: The impropriety of religious exemptions to child abuse laws

[Volokh, Eugene]

I think that if the wearing of head scarves really was accepted as 
very deeply psychologically harmful, then indeed children should be protected 
equally against such harm whether or not their parents are religious. To give 
an example, consider something that we would indeed agree is deeply 
psychologically harmful (say, locking a child up in a dark cellar for a month 
with no human contact).  If we do believe this is so harmful that children 
should be protected by law from this harm, then I think it's neither necessary 
nor even permissible for the government to strip the children of religious 
parents from such protection.

But it seems to me that there is no reason to think that the 
wearing of head scarves is indeed so deeply harmful, and that parents should be 
free to require their children to do this, whether for religious reasons or 
other reasons.  That, I think, is what is doing the work in your and my 
opposition to such bans.

Yoder strikes me as a harder case.  I think Justice Douglas's 
dissent is correct there, but I probably wouldn't conclude that the government 
couldn't exempt religious parents from a law such as the one involved there; I 
would simply say that it doesn't have to so exempt them.  But again what's 
doing the work, I think, is the comparatively slight harm that's involved.  
Imagine, for instance, that some religious group refused to teach their 
children to read and write.  That might well be such a severe harm to the 
child's future prospects in life (since I suspect that learning literacy at 18 
is vastly harder than at earlier ages, and would at least greatly retard the 
young adult's continuing education) that it would be improper to shield all 
children from this harm but refuse to shield the religious group's children 
from the harm.

Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Roger Severino
Sent: Monday, August 03, 2009 11:57 AM
To: religionlaw@lists.ucla.edu
Subject: RE: The impropriety of religious exemptions to child abuse laws

>> A person's right to protection from physical harm shouldn't turn on 
>> whether his parents are religious.  Such selective protection strikes me as 
>> certainly not constitutionally mandated, or mandated by religious exemption 
>> regimes.  And I think it would actually be constitutionally prohibited as 
>> well.

As you mention in another post, psychological harms should be considered as 
well.  But France has used just such harms to justify its banning of head 
scarves in state schools, the rationale being that headscarves stigmatize young 
female students.  If such a rule and rationale were imported to America, but 
legislators are later pressured to add an exemption for religious headwear, are 
you saying they would be constitutionally prohibited from doing so?

Going back to Yoder, there the question of which children received or didn't 
receive some state-mandated high school education turned precisely on the 
religious identity of the parents.  Do you disagree with that holding?  (For 
the record, in my earlier post I said that the parents in Yoder were allowed to 
act "regardless" of the wishes of the child, but that was a presumption on my 
part as the court did not actually rule on that precise issue).

> (4)  I take it, by the way, that this is entirely consistent with the 
> prohibition on female genital mutilation, which I take it that list members 
> would generally agree should be fully applicable to religious parents as well 
> as to secular ones:  Female genital mutilation, as I understand it, seriously 
> interferes with women's sexual sensation, plus poses a serious risk of other 
> medical complications.  (I would say that either alone would suffice for 
> banning it.)  The reason I would support treat male circumcision differently 
> (again, for secular parents as well as religious ones) is that there just 
> isn't, to my knowledge, enough evidence of similar harms for male 
> circumcision.

No argument here.  Female genital mutilation is incredibly destructive and 
unjustifiable, even if done in a hospital setting, which is not likely the 
common practice as I understand it.

-Roger Severino



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Roger Severino
Sent: Monday, August 03, 2009 9:41 AM
To: religionlaw@lists.ucla.edu
Subject: RE: The impropriety of religious exemptions to child abuse laws

   Let's shift the hypo a little bit and presume that the ban is written as 
follows "all circumcisions performed on male children under age 16 for 
ceremonial purposes are hereby prohibited in the state of California."  Would 
the state be justified in such a ban or would we have a Lukumi problem?

   Or, what if the statute simply banned all circumcision done for 
"non-medical" reasons.  Would this still conflict with the principles laid ou

Re: Wisconsin convicts parents for denial of medical treatment

[Vance R. Koven]

I certainly am not saying that atheists *should* be prohibited from
restraining their children, I was merely observing that there doesn't seem
to be a well-developed constitutional doctrine whereby they could prevail
against a legislative move to ban it, whereas there does seem to be such a
doctrine with respect to religious parents. And I'm also not suggesting that
corporal punishment is necessary or desirable in most, or even perhaps many,
cases; but the push to ban it entirely, even in the absence of clear harm to
the child (or based on an exaggerated tendency to find psychological harm)
against conscientious parents who feel a religious compulsion to adhere to
Biblical or traditional models smacks to me of class and religious
prejudice.

On Mon, Aug 3, 2009 at 11:28 AM, Steven Jamar  wrote:

>
> On Aug 3, 2009, at 9:50 AM, Vance R. Koven wrote:
>
> [snip]
>  After all, a parent's glowering is useless without at least the implied
> credible threat of direct action if diplomacy fails.
>
>
> This is a highly contestable statement at least to the extent it implies
> the necessity of corporal punishment with respect to many if not most
> children.  It may well be true that with some children if you spare the rod
> you spoil the child (even if you aren't an old testament adherent the
> principle may be sound), but with some if you use the rod you teach
> violence, and with others you never ever need corporal punishment.  Some
> restraint of the child's freedom may be necessary at times, but even that is
> not needed with at least some children.  And for others corporal punishment
> will not ever do any good.
>
> As to my prior point -- even if parental control was premised on religious
> teachings (and is for many people still), that hardly makes the case that
> the constitutional right of parents to control their children's upbringing
> is based in freedom of religion.  Again, do you mean to suggest that
> atheists have no rights to control their kids?  That statutes relating to
> age of emancipation are constitutionally valid only as to religious
> adherents?  That Jewish kids are emancipated at age 14?
>
> Or are the statutes not unconstitutional for another reason?  Surely
> parental rights derive at least in part from IXth Amendment, even if you
> don't like the right of privacy as a basis.  (I submit that that is a
> terminology problem here -- the parental rights existed and exist under
> every theory of constitutional interpretation since the adoption of it, even
> if the term "privacy" is of "recent" vintage.
>
> Steve
>
>
> --
> Prof. Steven D. Jamar vox:  202-806-8017
> Associate Director, Institute of Intellectual Property and Social Justice
> http://iipsj.org
> Howard University School of Law   fax:  202-806-8567
> http://iipsj.com/SDJ/
>
> Hope is not the conviction that something will turn out well, but the
> certainty that something makes sense regardless of how it turns out.
> *-- Vaclav Havel.*
>
>
>
>
>
>
>
>
> ___
> 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.
>



-- 
Vance R. Koven
Boston, MA USA
vrko...@world.std.com
___
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.

Re: Wisconsin convicts parents for denial of medical treatment

[Vance R. Koven]

To me, "scientific" principles are to be avoided in anything to do with the
law. Phrenology and eugenics (sorry, Eugene) were once state-of-the-art
science. Communism was considered "scientific." Having been trained as a
social scientist, I can tell you that those two words don't even belong in
the same sentence, much less cheek by jowl. All the so-called sciences that
deal with human behavior suffer from the same defect: for ethical and
sometimes logistical reasons, we cannot subject people to a rigorously
applied scientific methodology, and we cannot adequately isolate the thing
being tested from the millions of other things that influence behavior.
That's why so many of the scientific studies on virtually every topic are
contradicted by other equally scientific studies. It does not require a
suspicion of bad faith to draw the conclusion that science and human
behavior are no better than nodding acquaintances; and every so often actual
bad faith, prejudice and hubris manifest themselves in the investigation and
interpretation of social studies (and even hard sciences). Just imagine if
all those "scientific truths" had been ensconced in a legal system based on
stare decisis? It's bad enough when legislative *policy* is based on science
that proves an embarrassment fifty or fewer years later--which to some
extent is a necessity--but to send people to jail based on crackpot
pseudoscience, is something every decent society should resist. A degree of
self-awareness and humility would go a long way here.
Based on my admittedly anecdotal experience (but I've accumulated an awful
lot of anecdotes over my life), children subjected to traditional
child-rearing and discipline, short of battering and other major harm, will
turn out fine or twisted, as their natures dictate. Same story with children
raised on "progressive" principles.

I realize this has strayed a bit from the original question, but I think it
does relate to the deference the law should show--under a unified theory or
multiple theories--to parents' choices of disciplinary philosophy. The law
*ought* to defer to secular parents as much as to religious parents, but the
latter should not be denied this deference just because the law has tied
itself in knots over the basis for such deference to the former.

Vance

On Mon, Aug 3, 2009 at 11:38 AM,  wrote:

> In response to Vance's question---Yes, objective standards are available
> from scientific sources.  The question is whether a child is being harmed,
> and the level of harm can be determined by the extraordinary amount of
> research that is being done in the child abuse/child wellness arena.
> Legislatures are capable of drawing the line on the basis of these objective
> standards, and courts are capable of factfinding on the basis of experts.
> Obviously, there will be gray areas, but the scientific information goes a
> long way to rebutting the implicit claims by those protecting
> parental rights that children's well-being is improved by pain and/or
> browbeating.  Thus, the issue is children's rights to bodily integrity and
> protection from serious harm vs. parental rights to control their
> children.  That balancing is built into the law via Pierce v. Society of
> Sisters and Prince v. Massachusetts.
>
> Marci
>
>
> -Original Message-
> From: Vance R. Koven 
> To: Law & Religion issues for Law Academics 
> Sent: Sun, Aug 2, 2009 9:57 pm
> Subject: Re: FW: Wisconsin convicts parents for denial of medical treatment
>
> Well really, I think some of you are assuming your conclusions. Whether
> something is child abuse is what is to be determined, not what is to be
> assumed.
>  Those of us of a certain age may recall being spanked. It did no lasting
> harm, and may have done considerable good. However, whether it did or not,
> it was not considered a matter for state intervention, and civilization did
> not collapse on that account.
>
>  The question is not, as Marci thinks, whether the law takes the side of
> the parent or the child, it's whether and under what conditions the law
> (i.e., the state) takes it unto itself to take sides and to intervene in
> intra-family affairs. We have consensus on serious bodily harm, maybe even
> on visible physical injuries like black eyes or bloody noses; when you get
> into speculating about psychological and social "injuries" it starts to
> shade over into state ownership of children. My smaller point is that
> religions have always had rather a lot to say about the relationships within
> families, particularly between parents and children, which is a zone that a
> free exercise clause worthy of the name ought to respect. And my larger
> point was, and remains, whether the state is bound, regardless of any other
> consideration (such as religious freedom) to take whatever view of
> child-rearing the secular upper middle class decides at any given moment to
> take. We have developed a rather Dickensian, and some might say irrationally
> sentimental, vi

Re: The impropriety of religious exemptions to child abuse laws

[Vance R. Koven]

For reasons I mentioned in my response to Marci on another (related) thread,
I think that allegations of psychological harm should be accorded the
highest degree of skepticism, and should be based on proof of *actual*
psychological harm rather than suppositions about it. They are subject to
teleological manipulation, and are can be very hypocritically applied--as I
think we're seeing in France. Eugene's example is of course one of those
horror stories you sometimes hear about, but even in such a case rigorous
proof of harm should be required, and parents should be presumptively
protected against witch-hunters. If you want to ban psychological harm to
children, you'll basically have to ban parenting.

On Mon, Aug 3, 2009 at 3:07 PM, Volokh, Eugene  wrote:

>  I think that if the wearing of head scarves really was
> accepted as very deeply psychologically harmful, then indeed children should
> be protected equally against such harm whether or not their parents are
> religious. To give an example, consider something that we would indeed agree
> is deeply psychologically harmful (say, locking a child up in a dark cellar
> for a month with no human contact).  If we do believe this is so harmful
> that children should be protected by law from this harm, then I think it’s
> neither necessary nor even permissible for the government to strip the
> children of religious parents from such protection.
>
>
>
> But it seems to me that there is no reason to think that the
> wearing of head scarves is indeed so deeply harmful, and that parents should
> be free to require their children to do this, whether for religious reasons
> or other reasons.  That, I think, is what is doing the work in your and my
> opposition to such bans.
>
>
>
> *Yoder* strikes me as a harder case.  I think Justice
> Douglas’s dissent is correct there, but I probably wouldn’t conclude that
> the government *couldn’t* exempt religious parents from a law such as the
> one involved there; I would simply say that it doesn’t have to so exempt
> them.  But again what’s doing the work, I think, is the comparatively slight
> harm that’s involved.  Imagine, for instance, that some religious group
> refused to teach their children to read and write.  That might well be such
> a severe harm to the child’s future prospects in life (since I suspect that
> learning literacy at 18 is vastly harder than at earlier ages, and would at
> least greatly retard the young adult’s continuing education) that it would
> be improper to shield all children from this harm but refuse to shield the
> religious group’s children from the harm.
>
>
>
> Eugene
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Roger Severino
> *Sent:* Monday, August 03, 2009 11:57 AM
>
> *To:* religionlaw@lists.ucla.edu
> *Subject:* RE: The impropriety of religious exemptions to child abuse laws
>
>
>
> >> A person’s right to protection from physical harm shouldn’t
> turn on whether his parents are religious.  Such selective protection
> strikes me as certainly not constitutionally mandated, or mandated by
> religious exemption regimes.  And I think it would actually be
> constitutionally *prohibited *as well.
>
> As you mention in another post, psychological harms should be considered as
> well.  But France has used just such harms to justify its banning of head
> scarves in state schools, the rationale being that headscarves stigmatize
> young female students.  If such a rule and rationale were imported to
> America, but legislators are later pressured to add an exemption for
> religious headwear, are you saying they would be constitutionally prohibited
> from doing so?
>
> Going back to *Yoder*, there the question of which children received or
> didn't receive some state-mandated high school education turned precisely on
> the religious identity of the parents.  Do you disagree with that holding?
> (For the record, in my earlier post I said that the parents in *Yoder *were
> allowed to act "regardless" of the wishes of the child, but that was a
> presumption on my part as the court did not actually rule on that precise
> issue).
>
> > (4)  I take it, by the way, that this is entirely consistent with the
> prohibition on female genital mutilation, which I take it that list members
> would generally agree should be fully applicable to religious parents as
> well as to secular ones:  Female genital mutilation, as I understand it,
> seriously interferes with women’s sexual sensation, plus poses a serious
> risk of other medical complications.  (I would say that either alone would
> suffice for banning it.)  The reason I would support treat male circumcision
> differently (again, for secular parents as well as religious ones) is that
> there just isn’t, to my knowledge, enough evidence of similar harms for male
> circumcision.
>
>
>
> No argument here.  Female genital mutilation is in

RE: Wisconsin convicts parents for denial of medical treatment

[Volokh, Eugene]

I appreciate Vance's frustration with science and the law.  But the 
alternative to attempt at scientific analysis of social problems generally 
isn't deep insight or logical moral proof - it's seat-of-the-pants guesswork.

The law does, should, and will constrain some actions by parents 
with respect to their children.  Some such lines may be obviously sound 
(deliberately killing is bad).  But many will be controversial.  And even if 
one has a substantial presumption in favor of parental discretion, presumably 
that presumption would be rebutted in many situations.  Either it would be 
rebutted based on the best studies we have, or it would be rebutted based on 
casual guesses about what's sufficiently harmful and what's not.  And I don't 
see why decisionmaking based on such casual guesses would necessarily be 
superior to decisionmaking based on a combination of such guesses coupled with 
serious studies.

Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Vance R. Koven
Sent: Monday, August 03, 2009 1:38 PM
To: Law & Religion issues for Law Academics
Subject: Re: Wisconsin convicts parents for denial of medical treatment

To me, "scientific" principles are to be avoided in anything to do with the 
law. Phrenology and eugenics (sorry, Eugene) were once state-of-the-art 
science. Communism was considered "scientific." Having been trained as a social 
scientist, I can tell you that those two words don't even belong in the same 
sentence, much less cheek by jowl. All the so-called sciences that deal with 
human behavior suffer from the same defect: for ethical and sometimes 
logistical reasons, we cannot subject people to a rigorously applied scientific 
methodology, and we cannot adequately isolate the thing being tested from the 
millions of other things that influence behavior. That's why so many of the 
scientific studies on virtually every topic are contradicted by other equally 
scientific studies. It does not require a suspicion of bad faith to draw the 
conclusion that science and human behavior are no better than nodding 
acquaintances; and every so often actual bad faith, prejudice and hubris 
manifest themselves in the investigation and interpretation of social studies 
(and even hard sciences). Just imagine if all those "scientific truths" had 
been ensconced in a legal system based on stare decisis? It's bad enough when 
legislative *policy* is based on science that proves an embarrassment fifty or 
fewer years later--which to some extent is a necessity--but to send people to 
jail based on crackpot pseudoscience, is something every decent society should 
resist. A degree of self-awareness and humility would go a long way here.

Based on my admittedly anecdotal experience (but I've accumulated an awful lot 
of anecdotes over my life), children subjected to traditional child-rearing and 
discipline, short of battering and other major harm, will turn out fine or 
twisted, as their natures dictate. Same story with children raised on 
"progressive" principles.

I realize this has strayed a bit from the original question, but I think it 
does relate to the deference the law should show--under a unified theory or 
multiple theories--to parents' choices of disciplinary philosophy. The law 
*ought* to defer to secular parents as much as to religious parents, but the 
latter should not be denied this deference just because the law has tied itself 
in knots over the basis for such deference to the former.

Vance
On Mon, Aug 3, 2009 at 11:38 AM, 
mailto:hamilto...@aol.com>> wrote:
In response to Vance's question---Yes, objective standards are available from 
scientific sources.  The question is whether a child is being harmed, and the 
level of harm can be determined by the extraordinary amount of research that is 
being done in the child abuse/child wellness arena.  Legislatures are capable 
of drawing the line on the basis of these objective standards, and courts are 
capable of factfinding on the basis of experts.  Obviously, there will be gray 
areas, but the scientific information goes a long way to rebutting the implicit 
claims by those protecting parental rights that children's well-being is 
improved by pain and/or browbeating.  Thus, the issue is children's rights to 
bodily integrity and protection from serious harm vs. parental rights to 
control their children.  That balancing is built into the law via Pierce v. 
Society of Sisters and Prince v. Massachusetts.

Marci


-Original Message-
From: Vance R. Koven mailto:vrko...@gmail.com>>
To: Law & Religion issues for Law Academics 
mailto:religionlaw@lists.ucla.edu>>
Sent: Sun, Aug 2, 2009 9:57 pm
Subject: Re: FW: Wisconsin convicts parents for denial of medical treatment
Well really, I think some of you are assuming your conclusions. Whether 
something is child abuse is what is to be determined, not what is to be assumed.

Those of us of a cer

Re: Wisconsin convicts parents for denial of medical treatment

[Paul Finkelman]

Vance's response smacks of "red baiting."  Because Communists use science he 
does not trust it?

The KKK uses he Cross on its Robes?  So I suppose we should all be careful of 
anyone professing to be a Christian?  The Oklahoma City Bombers were veterans 
and "patriots" so beware of anyone who argued for patriotism?

I wonder what Vance means by "so-called science" -- Biology (which surely deals 
with human behavior) does not apply in his world?  Medical science (another of 
those "human sciences) is a "so-called" science -- so that if a physician 
testifies that a the bruises on a child were caused by a use of force by a much 
stronger human being (the parent beat the child) he will reject this as 
"so-called" science.

As for anecdotal evidence, we have very good evidence (even anecdotal evidence 
that apparently works better for Vance than other kinds)  that most people who 
end up doing serious harm to others were abused, beating, "bruised," etc. by 
their parents.



Paul Finkelman

President William McKinley Distinguished Professor of Law

Albany Law School

80 New Scotland Avenue

Albany, NY  12208



518-445-3386 (p)

518-445-3363 (f)



pf...@albanylaw.edu



www.paulfinkelman.com

--- On Mon, 8/3/09, Vance R. Koven  wrote:

From: Vance R. Koven 
Subject: Re: Wisconsin convicts parents for denial of medical treatment
To: "Law & Religion issues for Law Academics" 
Date: Monday, August 3, 2009, 4:38 PM

To me, "scientific" principles are to be avoided in anything to do with the 
law. Phrenology and eugenics (sorry, Eugene) were once state-of-the-art 
science. Communism was considered "scientific." Having been trained as a social 
scientist, I can tell you that those two words don't even belong in the same 
sentence, much less cheek by jowl. All the so-called sciences that deal with 
human behavior suffer from the same defect: for ethical and sometimes 
logistical reasons, we cannot subject people to a rigorously applied scientific 
methodology, and we cannot adequately isolate the thing being tested from the 
millions of other things that influence behavior. That's why so many of the 
scientific studies on virtually every topic are contradicted by other equally 
scientific studies. It does not require a suspicion of bad faith to draw the 
conclusion that science and human behavior are no better than nodding 
acquaintances; and every so often actual bad faith,
 prejudice and hubris manifest themselves in the investigation and 
interpretation of social studies (and even hard sciences). Just imagine if all 
those "scientific truths" had been ensconced in a legal system based on stare 
decisis? It's bad enough when legislative *policy* is based on science that 
proves an embarrassment fifty or fewer years later--which to some extent is a 
necessity--but to send people to jail based on crackpot pseudoscience, is 
something every decent society should resist. A degree of self-awareness and 
humility would go a long way here.

Based on my admittedly anecdotal experience (but I've accumulated an awful lot 
of anecdotes over my life), children subjected to traditional child-rearing and 
discipline, short of battering and other major harm, will turn out fine or 
twisted, as their natures dictate. Same story with children raised on 
"progressive" principles.

I realize this has strayed a bit from the original question, but I think it 
does relate to the deference the law should show--under a unified theory or 
multiple theories--to parents' choices of disciplinary philosophy. The law 
*ought* to defer to secular parents as much as to religious parents, but the 
latter should not be denied this deference just because the law has tied itself 
in knots over the basis for such deference to the former.

Vance

On Mon, Aug 3, 2009 at 11:38 AM,   wrote:

In response to Vance's question---Yes, objective standards are available from 
scientific sources.  The question is whether a child is being harmed, and the 
level of harm can be determined by the extraordinary amount of research that is 
being done in the child abuse/child wellness arena.  Legislatures are capable 
of drawing the line on the basis of these objective standards, and courts are 
capable of factfinding on the basis of experts.  Obviously, there will be gray 
areas, but the scientific information goes a long way to rebutting the implicit 
claims by those protecting parental rights that children's well-being is 
improved by pain and/or browbeating.  Thus, the issue is children's rights to 
bodily integrity and protection from serious harm vs. parental rights to 
control their children.  That balancing is built into the law via Pierce v. 
Society of Sisters and Prince v. Massachusetts.




Marci  





-Original Message-

From: Vance R. Koven 

To: Law & Religion issues for Law Academics 

Sent: Sun, Aug 2, 2009 9:57 pm

Subject: Re: FW: Wisconsin convicts parents for denial of medical treatment





Well really, I think some of you are assumin

Re: Wisconsin convicts parents for denial of medical treatment

[Volokh, Eugene]

Huh?  I don’t agree with Vance, but what’s with the red baiter 
baiting?  Vance certainly wasn’t saying that “because Communists use science he 
does not trust it” – rather, he was saying that many unsound theories, such as 
Communism (presumably its approaches to economics and history), phrenology, 
eugenics, and the like were once seen by many as “scientifically” sound.

Nor is Vance saying that any people who profess various views 
should be shunned – simply that certain approaches have a poor track record 
when applied to legal decisionmaking.  And his focus was on sciences that deal 
with human behavior, which I take it does not include scientific testimony 
about bruises, or much biology.  (I realize that one could read “sciences that 
deal with human behavior” so broadly as to cover the likely physical cause of a 
bruise, but I don’t see why one should read fellow list members’ posts so as to 
make them least plausible, rather than more plausible.)

Again, I don’t agree with Vance, for reasons that I mentioned in a 
separate post.  But there’s no need, it seems to me, to lash out against 
arguments that Vance didn’t make.

Eugene





From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Paul Finkelman
Sent: Monday, August 03, 2009 3:43 PM
To: Law & Religion issues for Law Academics
Subject: Re: Wisconsin convicts parents for denial of medical treatment

Vance's response smacks of "red baiting."  Because Communists use science he 
does not trust it?

The KKK uses he Cross on its Robes?  So I suppose we should all be careful of 
anyone professing to be a Christian?  The Oklahoma City Bombers were veterans 
and "patriots" so beware of anyone who argued for patriotism?

I wonder what Vance means by "so-called science" -- Biology (which surely deals 
with human behavior) does not apply in his world?  Medical science (another of 
those "human sciences) is a "so-called" science -- so that if a physician 
testifies that a the bruises on a child were caused by a use of force by a much 
stronger human being (the parent beat the child) he will reject this as 
"so-called" science.

As for anecdotal evidence, we have very good evidence (even anecdotal evidence 
that apparently works better for Vance than other kinds)  that most people who 
end up doing serious harm to others were abused, beating, "bruised," etc. by 
their parents.


Paul Finkelman
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)

pf...@albanylaw.edu

www.paulfinkelman.com

--- On Mon, 8/3/09, Vance R. Koven  wrote:

From: Vance R. Koven 
Subject: Re: Wisconsin convicts parents for denial of medical treatment
To: "Law & Religion issues for Law Academics" 
Date: Monday, August 3, 2009, 4:38 PM
To me, "scientific" principles are to be avoided in anything to do with the 
law. Phrenology and eugenics (sorry, Eugene) were once state-of-the-art 
science. Communism was considered "scientific." Having been trained as a social 
scientist, I can tell you that those two words don't even belong in the same 
sentence, much less cheek by jowl. All the so-called sciences that deal with 
human behavior suffer from the same defect: for ethical and sometimes 
logistical reasons, we cannot subject people to a rigorously applied scientific 
methodology, and we cannot adequately isolate the thing being tested from the 
millions of other things that influence behavior. That's why so many of the 
scientific studies on virtually every topic are contradicted by other equally 
scientific studies. It does not require a suspicion of bad faith to draw the 
conclusion that science and human behavior are no better than nodding 
acquaintances; and every so often actual bad faith, prejudice and hubris 
manifest themselves in the investigation and interpretation of social studies 
(and even hard sciences). Just imagine if all those "scientific truths" had 
been ensconced in a legal system based on stare decisis? It's bad enough when 
legislative *policy* is based on science that proves an embarrassment fifty or 
fewer years later--which to some extent is a necessity--but to send people to 
jail based on crackpot pseudoscience, is something every decent society should 
resist. A degree of self-awareness and humility would go a long way here.

Based on my admittedly anecdotal experience (but I've accumulated an awful lot 
of anecdotes over my life), children subjected to traditional child-rearing and 
discipline, short of battering and other major harm, will turn out fine or 
twisted, as their natures dictate. Same story with children raised on 
"progressive" principles.

I realize this has strayed a bit from the original question, but I think it 
does relate to the deference the law should show--under a unified theory or 
multiple theories--to parents' choices of disciplinary philosop

Re: Wisconsin convicts parents for denial of medical treatment

[hamilton02]

Paul is correct here.  If you want to evidence of the causal connection between 
the home situation and criminal behavior, read the files of the individuals who 
are on death row.  Not infrequently, it is hard to figure out who acted more 
heinously -- the parents of the death row inmate or the death row inmate 
himself.  I'm not saying that home circumstances should be an adequate defense 
to murder.  Rather, as a society it is foolish not to make every effort to stem 
harm to children.

Marci


-Original Message-
From: Paul Finkelman 
To: Law & Religion issues for Law Academics 
Sent: Mon, Aug 3, 2009 6:42 pm
Subject: Re: Wisconsin convicts parents for denial of medical treatment






Vance's response smacks of "red baiting."  Because Communists use science he 
does not trust it?

The KKK uses he Cross on its Robes?  So I suppose we should all be careful of 
anyone professing to be a Christian?  The Oklahoma City Bombers were veterans 
and "patriots" so beware of anyone who argued for patriotism?

I wonder what Vance means by "so-called science" -- Biology (which surely deals 
with human behavior) does not apply in his world?  Medical science (another of 
those "human sciences) is a "so-called" science -- so that if a physician 
testifies that a the bruises on a child were caused by a use of force by a much 
stronger human being (the parent beat the child) he will reject this as 
"so-called" science.

As20for anecdotal evidence, we have very good evidence (even anecdotal evidence 
that apparently works better for Vance than other kinds)  that most people who 
end up doing serious harm to others were abused, beating, "bruised," etc. by 
their parents.


Paul Finkelman
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)

pf...@albanylaw.edu

www.paulfinkelman.com

--- On Mon, 8/3/09, Vance R. Koven  wrote:


From: Vance R. Koven 
Subject: Re: Wisconsin convicts parents for denial of medical treatment
To: "Law & Religion issues for Law Academics" 
Date: Monday, August 3, 2009, 4:38 PM


To me, "scientific" principles are to be avoided in anything to do with the 
law. Phrenology and eugenics (sorry, Eugene) were once state-of-the-art 
science. Communism was considered "scientific." Having been trained as a social 
scientist, I can tell you that those two words don't even belong in the same 
sentence, much less cheek by jowl. All the so-called sciences that deal with 
human behavior suffer from the same defect: for ethical and sometimes 
logistical reasons, we cannot subject people to a rigorously applied scientific 
methodology, and we cannot adequately isolate the thing being tested from the 
millions of other things that influence behavior. That's why so many of the 
scientific studies on virtually every topic are contradicted by other equally 
scientific studies. It does not require
a suspicion of bad faith to draw the conclusion that science and human behavior 
are no better than nodding acquaintances; and every so often actual bad faith, 
prejudice and hubris manifest themselves in the investigation and 
interpretation of social studies (and even hard sciences). Just imagine if all 
those "scientific truths" had been ensconced in a legal system based on stare 
decisis? It's bad enough when legislative *policy* is based on science that 
proves an embarrassment fifty or fewer years later--which to some extent is a 
necessity--but to send people to jail based on crackpot pseudoscience, is 
something every decent society should resist. A degree of self-awareness and 
humility would go a long way here.



Based on my admittedly anecdotal experience (but I've accumulated an awful lot 
of anecdotes over my life), children subjected to traditional child-rearing and 
discipline, short of battering and other major harm, will turn out fine or 
twisted, as their natures dictate. Same story with children raised on 
"progressive" principles.




I realize this has strayed a bit from the original question, but I think it 
does relate to the deference the law should show--under a unified theory or 
multiple theories--to parents' choices of disciplinary philosophy. The law 
*ought* to defer to secular parents as much as to religious parents, but the 
latter should not be denied this deference just because the law has tied itself 
in knots over the basis for such deference to the former.




Vance


On Mon
, Aug 3, 2009 at 11:38 AM,  wrote:

In response to Vance's question---Yes, objective standards are available from 
scientific sources.  The question is whether a child is being harmed, and the 
level of harm can be determined by the extraordinary amount of research that is 
being done in the child abuse/child wellness arena.  Legislatures are capable 
of drawing the line on the basis of these objective standards, and courts are 
capable of factfinding on the basis of experts.  Obviously, there will be gray 
a

Re: Wisconsin convicts parents for denial of medical treatment

[ArtSpitzer]

Because a few seriously abused children become murderers, society needs to
prohibit spanking?


In a message dated 8/3/09 9:05:21 PM, hamilto...@aol.com writes:


> Paul is correct here.  If you want to evidence of the causal connection
> between the home situation and criminal behavior, read the files of the
> individuals who are on death row.  Not infrequently, it is hard to figure out
> who acted more heinously -- the parents of the death row inmate or the death
> row inmate himself.  I'm not saying that home circumstances should be an
> adequate defense to murder.  Rather, as a society it is foolish not to make
> every effort to stem harm to children.
>




**
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Re: Wisconsin convicts parents for denial of medical treatment

[Paul Finkelman]

Art:

This discussion began with a defense of "bruising" children. That is hardly 
spanking.  I think if you look at those beyond death row -- simply violent 
criminals - you will find abuse in almost every circumstance.  



Paul Finkelman

President William McKinley Distinguished Professor of Law

Albany Law School

80 New Scotland Avenue

Albany, NY  12208



518-445-3386 (p)

518-445-3363 (f)



pf...@albanylaw.edu



www.paulfinkelman.com

--- On Mon, 8/3/09, artspit...@aol.com  wrote:

From: artspit...@aol.com 
Subject: Re: Wisconsin convicts parents for denial of medical treatment
To: religionlaw@lists.ucla.edu
Date: Monday, August 3, 2009, 9:08 PM

Because a few seriously abused children become murderers, society needs to 
prohibit spanking?





In a message dated 8/3/09 9:05:21 PM, hamilto...@aol.com writes:





Paul is correct here.  If you want to evidence of the causal connection between 
the home situation and criminal behavior, read the files of the individuals who 
are on death row.  Not infrequently, it is hard to figure out who acted more 
heinously -- the parents of the death row inmate or the death row inmate 
himself.  I'm not saying that home circumstances should be an adequate defense 
to murder.  Rather, as a society it is foolish not to make every effort to stem 
harm to children.








**
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-Inline Attachment Follows-

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Re: Wisconsin convicts parents for denial of medical treatment

[hamilton02]

Art-  many studies now document the extreme disabilities visited upon abused 
children.  The cost to society is  very high.  Is a pat on the tush abuse?  No. 
Is a whipping with a tree branch?  Probably 
The term spanking is not terribly helpful 

Marci 
Sent from my Verizon Wireless BlackBerry

-Original Message-
From: artspit...@aol.com

Date: Mon, 3 Aug 2009 21:08:19 
To: 
Subject: Re: Wisconsin convicts parents for denial of medical treatment


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Re: Wisconsin convicts parents for denial of medical treatment

[ArtSpitzer]

I'm certainly with you on tush-patting and branch-whipping.   And on not
taking an 11-year old who stops walking, speaking and eating to the hospital.
 I suspect (almost?) everyone on the list is.   It's in-between that raises
issues. I have no doubt that child abuse has a very high cost to society.
I'm also confident that any effort to wipe out child abuse would also have
a very high cost to society.   Just look at the war on drugs.   Who would
ever have thought that we'd have SWAT teams breaking into innocent people's
homes looking for marijuana, until we did?   The costs of law enforcement need
to be kept in mind, along with the costs of child abuse.   There are no
perfect solutions.

Art

In a message dated 8/3/09 10:48:33 PM, hamilto...@aol.com writes:

> Art-  many studies now document the extreme disabilities visited upon
> abused children.  The cost to society is  very high.  Is a pat on the tush
> abuse?  No. Is a whipping with a tree branch?  Probably
> The term spanking is not terribly helpful
>




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