RE: Parental rights and physical conduct
Chip, setting aside whether the Court in Smith adequately distinguished Yoder, was Yoder decided incorrectly? If it was correctly decided, how does it fit with a regime under which we are to be indifferent to religious motivations and are to ignore historically-recognized religious practices? Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Thursday, July 05, 2012 2:45 PM To: Law Religion issues for Law Academics Subject: Re: Parental rights and physical conduct If Smith's hybrid rights explanation of Yoder is all there is against my argument that religious motivation should add or subtract nothing from parental rights to engage in particular child-rearing practices, I'll happily rest my case. All I'm suggesting is that once we have a general set of constitutional rights to protect a practice, religious motivation for the practice should add or subtract nothing. The Phelps (in Snyder v. Phelps) would not be on weaker First A ground if their obnoxious protests were wholly secular. The children's rights context may be the strongest one for rejecting permissive, religion-specific accommodations, because of the third party harms. But it's not the only such context, with or without other enumerated rights in the picture (see Texas Monthly). On Thu, Jul 5, 2012 at 4:58 PM, Scarberry, Mark mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu wrote: If I recall correctly, the Court in Yoder relied on the free exercise clause in holding that the Amish had the right to an exemption from the otherwise applicable law with respect to sending children to school. Religion does not seem, in the Court's view, to be irrelevant to parental rights. Smith even recognized this in the way it distinguished Yoder. It is strange to me that a specifically enumerated right to free exercise of religion would be reduced to or made subordinate to a religion-neutral unenumerated right of parents to control their children's upbringing. Of course, if we want to focus on unenumerated rights, I believe the Justice with the most restrictive view, Justice Scalia, is willing to recognize rights that have been accepted throughout our history, as long as we consider the most specific level at which a relevant tradition protecting, or denying protection to, the asserted right can be identified. See Michael H. v. Gerald D. Circumcision of male infants for religious or community-maintaining purposes has never before, as far as I know, been challenged as being something a Jewish family could be prohibited from doing. It has been understood as a part of what is required for a religious community to exist and for parents to bring their children into such a community. It is a very specific practice that has been recognized in our traditions. Mark S. Scarberry Pepperdine Univ. School of Law Malibu, CA 90263 (310)506-4667tel:%28310%29506-4667 ___ 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: Parental rights and physical conduct
This kind of act-specific discussion on this thread misses the point in my view. There is a universe of existing law already can protect children and should be capable of being brought to bear against parents or guardians who negligently/recklessly/intentionally/knowingly harm/injure/kill their children, even if it happens for religious purposes. Criminal law and tort law and statutory law on abuse and neglect. So the parent who starves the infant for religious reasons should be capable of being prosecuted; same for the parents who permit their child to have oral suction in an Orthodox circumcision; and same for the parent who hits/sexually abuses the child for religious reasons. Ditto for civil claims. So why is harm to children in religious settings even an issue? (1) In part because Christian Scientists in the Nixon Administration fomented medical neglect exemptions in the states as a condition for federal funding and a number of states still have them. Medical neglect exemptions are not constitutionally required. (2) Christian Scientists and other religious lobbyists continue to lobby for the endangerment of children from medical neglect and even abuse. At one time, when children were treated as parental property and few children's groups had traction, legislators gave such religious lobbyists what they requested in a knee-jerk fashion. The rise in children's advocates and a greater sense of children as persons has changed that somewhat. But plenty of states still handcuff prosecutors when the child died or suffered for religious reasons. (3) Religious parents and their lawyers argue that the First Amendment and any rfra available protects the parent who harmed their child. Such defenses (even though meritless in my view) can dissuade prosecutors from investing resources, and give judges who are sympathetic to religion (or their religion) an opening to put roadblocks in the way of justice. (4) A romantic approach to religion in American culture. So the solution is the repeal of such exemptions, and apply the existing law to religious parents. I believe that is what Chip is suggesting, but this may go farther than he would. So how does this apply to circumcision? There should be no blanket exemption, and parents and religious leaders need to avoid negligent/reckless/wilful/knowing actions that harm a child. As research into the longterm effects of circumcision continues, the judgment on this may well change in particular cases. And if the evidence of harm becomes overwhelming (e.g., genital mutilation and polygamy), a blanket ban makes sense. If religious groups want to continue doing it, they will have to justify it. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Cardozo School of Law Yeshiva University I agree that the danger to infants from full immersion baptism is very low and perhaps zero; the hypothetical was that it happened in a handful of cases, but I think that's just a hypothetical. As to what burdens the government imposes to avoid a handful of deaths of infants, I think that varies from context to context. My sense is that there are quite a few safety regulations -- though generally not total bans -- that are indeed justified by the desire to avoid just a handful of deaths. On the other hand, circumcision involves not a very low risk of death, but a certainty of loss of part of the body, which in turn involves an uncertain possible health benefit and an unknown (and likely very hard to quantify) possibility of loss of some sexual function. That might well be a materially higher aggregate loss of utility, to borrow the economic term, than the loss of utility from playing football, even in Texas. Or it might not; again, much depends on the facts. Eugene Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Volokh, Eugene vol...@law.ucla.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Thu, Jul 5, 2012 11:28 pm Subject: RE: Parental rights and physical conduct I agree that the danger to infants from full immersion baptism is very low and perhaps zero; the hypothetical was that it happened in a handful of cases, but I think that's just a hypothetical. As to what burdens the government imposes to avoid a handful of deaths of infants, I think that varies from context to context. My sense is that there are quite a few safety regulations -- though generally not total bans -- that are indeed justified by the desire to avoid just a handful of deaths. On the other hand, circumcision involves not a very low risk of death, but a certainty of loss of part of the body, which in turn involves an uncertain possible health benefit and an unknown (and
Re: Parental rights and physical conduct
But we do know-- the best interests of the child is based on a totality of the circumstances. A one-time sip of beer does not harm a child A full beer would. Most of these cases are just common sense. Your example is a straw man Marci On Jul 5, 2012, at 10:44 PM, Eric Rassbach erassb...@becketfund.org wrote: My Dad gave me a sip of Dome foam at an Astros game when I was fairly young, which had the (almost certainly intended) effect of putting me off of beer until later than many of my peers. The sad part is that we will never know whether that act was in the best interests of the child or whether Dad should've been locked up. From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu [icl...@law.gwu.edu] Sent: Thursday, July 05, 2012 9:26 PM To: Law Religion issues for Law Academics Subject: Re: Parental rights and physical conduct I am wondering if Marci thinks Troxel v. Granville (unconstitutional for legislature to provide for grandparent visitation rights over objection of custodial parent) is correctly decided, or consistent with her views. Her assertion that Children are increasingly being treated as independent persons whose interests must be examined separately is awfully vague -- 16 year olds involved in custody fights? What's the context to which you are referring? Now I have to go watch the Nationals and drink some beer with my younger son -- he'll be 22 in a few weeks. I have a 13 year old grandson coming to visit tomorrow, and I'll have to think twice about offering him a bottle. On Thu, Jul 5, 2012 at 8:19 PM, Marci Hamilton hamilto...@aol.commailto:hamilto...@aol.com wrote: I would disagree with Chip that the concept of best interest of the child continues to afford a presumption that parents act in the best interest of the child. Children are increasingly being treated as independent persons whose interests must be examined separately. I do agree w Chip, though, that religious reasons should never be adequate as reasons to water down the best interest inquiry or create a defense in a case involving harm to a child. Marci On Jul 5, 2012, at 3:34 PM, Ira Lupu icl...@law.gwu.edumailto:icl...@law.gwu.edu wrote: Our ordinary, wide-spread, and long-standing presumption is that parents/guardians act in the best interests of their minor children. The state may intervene -- overcome that presumption -- when parents/guardians inflict significant harm on their children. Of course, we can all argue about what constitutes such harm (e.g., Eric' s example of Amish families keeping their children on the farm, or Alan's example of a parent providing a child with small amounts of alcohol). I am not trying to settle what constitutes harm sufficient to justify intervention. I am trying to reject the idea that religion will EVER appropriately affect that judgment by the state. There is no room for play in the joints on these questions, because the interests of third parties are involved. If the state singles out religiously motivated conduct for an exemption from a prohibition on what is otherwise abusive or neglectful, that violates the Establishment Clause. And if If the state singles out religiously motivated conduct for punishment in cases where the same conduct with secular motivation is not considered abusive or neglectful, that violates the Free Exercise Clause. So, Alan, the answer is yes, both parents who provide alcohol to their children should have to operate under the same rules -- if a Jewish parent's Seder practices are OK (and I'm sure that the vast majority of such parents don't abusively or neglectfully ply their minor children with alcohol), then likewise for the parent who provides the same amount of alcohol, over the same number of hours, with the same frequency on the calendar (once a year). Doing this at every Sabbath, or every Sunday during NFL season, might be abuse or neglect, but the standard for state intervention would be the same for both parents. On Thu, Jul 5, 2012 at 2:59 PM, Marci Hamilton hamilto...@aol.commailto:hamilto...@aol.com wrote: I would like some clarification from those relying on purported parental rights. The use of the term parental right is freighted w social and cultural value but very little legal value. Pierce v Society of Sisters is balanced by Prince. So the use of right in this context is a dead end in my view. The best interest of the child is not in the context of parental rights as much as it is intended to treat the child as a separate person who deserves protection and respect even in opposition to a parent's demands or needs. Marci On Jul 5, 2012, at 12:42 PM, Eric Rassbach erassb...@becketfund.orgmailto:erassb...@becketfund.org wrote: Eugene -- I don't think this makes sense because it
Re: Parental rights and physical conduct
Courts routinely rule that such an environment is in the best interests of the child. But specific practices need to be vetted under the standard. It is a fact question. Shared values and age-old historic traditions do not cut it, however. The Muslims who engage in genital mutilation satisfy that criterion; as do the FLDS who engage in widespread rape of girls and abandonment of boys; and the ultra-Orthodox rabbis who tell their believers not to go the authorities about child sex abuse. Many would argue that it is in the best interest of the child to welcome him into a supportive, religious community with shared values and age-old historic traditions-- The question is what is in the interest of this child today. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Friedman, Howard M. howard.fried...@utoledo.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Thu, Jul 5, 2012 3:47 pm Subject: RE: Parental rights and physical conduct Many would argue that it is in the best interest of the child to welcome him into a supportive, religious community with shared values and age-old historic traditions-- that include circumcision or full immersion baptism or some other ritual that might create some small risk of injury (just as almost any activity might). The problem is, how do you decide whether or not this is in the child's best interest without a prior value judgment about the religious tradition involved? There is no reason to believe that it is in the best interest of the child to raise him or her in a cultural or moral vacuum, or devoid of traditions which can give structure to his or her life, until the child reaches 18. Of course there are some rituals that create an undue risk of harm-- and isn't the question one of how to identify those without imposing our own cultural or religious bias on the question of risk? Howard -Original Message- From: religionlaw-boun...@lists.ucla.edu on behalf of Marci Hamilton Sent: Thu 7/5/2012 2:59 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: Parental rights and physical conduct I would like some clarification from those relying on purported parental rights. The use of the term parental right is freighted w social and cultural value but very little legal value. Pierce v Society of Sisters is balanced by Prince. So the use of right in this context is a dead end in my view. The best interest of the child is not in the context of parental rights as much as it is intended to treat the child as a separate person who deserves protection and respect even in opposition to a parent's demands or needs. Marci On Jul 5, 2012, at 12:42 PM, Eric Rassbach erassb...@becketfund.org wrote: Eugene -- I don't think this makes sense because it posits an impossible universe of zero-risk parenting. It is far riskier to drive your child on the freeway (not to mention take him/her skiing, or letting him/her play soccer, or play football (esp. in Texas)) than it is to baptize him/her. All those risks are well within the set of risks that parents take in the normal course of parenting. Indeed, for the state to interfere with the ability of parents to expose children to those risks would be a gross interference with parental rights. And I imagine that the danger to infants from either circumcision or full immersion baptism is far lower than driving them around town, though I claim no actuarial expertise on the matter. Eric From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene [vol...@law.ucla.edu] Sent: Thursday, July 05, 2012 12:31 PM To: Law Religion issues for Law Academics Subject: RE: Parental rights and physical conduct I appreciate Howard's point, but the question is: Why should some children who by definition do not share a religious belief drown - or otherwise be injured - for the sake of the beliefs of the adults who do have that belief (and even for the sake of those children who, later in life, will wish that they had been so baptized)? I have great sympathy for people's rights to risk their own lives (in the baptism example) or alter their own bodies (in the circumcision example) for the sake of their religious beliefs, or for that matter for the sake of their secular beliefs. But why does it follow that they should have the right to impose such risks on others, even others to whom they are genetically linked? Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Friedman, Howard M. Sent: Thursday, July 05, 2012 8:52 AM To: Law Religion
RE: Parental rights and physical conduct
This has been a very interesting discussion. I confess that at this point, I am quite confused about the meaning of best interests of the child. I understand it is a complex, context-driven, and multivalent test. But it would certainly help to understand the foundational values and defaults here and what interests are considered admissible or inadmissible. In some sense, the thinner the exposition of the test becomes, the more I wonder what thick assumptions underlie it. Take, for instance, the claim that [m]any would argue that it is in the best interest of the child to welcome him into a supportive, religious community with shared values and age-old historic traditions, and the response that [t]he question is what is in the interest of this child today. It's my own fault, I'm sure, but I'm having trouble figuring out exactly where this leaves us. Is it that it may be in the interest of the child today to welcome him into a supportive religious community but that it is not dispositive, or that the fact that the community is well-established and has shared values is not dispositive of the child's best interests? Is it that the possibility of a supportive religious community should never be relevant as between two possible custody dispositions? Is it an empirical question to be decided in each case? If it is potentially relevant but we acknowledge that some religious communities may risk harm to the child, what counts as harm? Only serious physical/emotional harm, or any suboptimal outcome, and by what definition of optimization? I'm not asking to be made an expert in family law overnight, but I can't help but feel that the best interests of the child is the beginning rather than the end of the discussion, and I would welcome some--indeed, any--clarification. Best wishes, Paul HorwitzUniversity of Alabama School of Law ___ 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: Parental rights and physical conduct
I am with Paul in my confusion, and will add only a further question. If we accept the principle that the best interests of the child prevails, does that mean that judges and not parents will always have the decisive say? (As a parent, for example, I think I am always acting in the best interest of my children, even when -- indeed, especially when -- they don't know it!) Might be worth thinking about this story, about the judge ordering (not really accurate) a mother to cut her daughter's hair: http://www.deseretnews.com/article/865557954/Judge-orders-Price-woman-to-cut-off-daughters-ponytail-in-court.html Richard Dougherty On Fri, Jul 6, 2012 at 10:22 AM, Paul Horwitz phorw...@hotmail.com wrote: This has been a very interesting discussion. I confess that at this point, I am quite confused about the meaning of best interests of the child. I understand it is a complex, context-driven, and multivalent test. But it would certainly help to understand the foundational values and defaults here and what interests are considered admissible or inadmissible. In some sense, the thinner the exposition of the test becomes, the more I wonder what thick assumptions underlie it. Take, for instance, the claim that [m]any would argue that it is in the best interest of the child to welcome him into a supportive, religious community with shared values and age-old historic traditions, and the response that [t]he question is what is in the interest of this child today. It's my own fault, I'm sure, but I'm having trouble figuring out exactly where this leaves us. Is it that it may be in the interest of the child today to welcome him into a supportive religious community but that it is not dispositive, or that the fact that the community is well-established and has shared values is not dispositive of the child's best interests? Is it that the possibility of a supportive religious community should never be relevant as between two possible custody dispositions? Is it an empirical question to be decided in each case? If it is potentially relevant but we acknowledge that some religious communities may risk harm to the child, what counts as harm? Only serious physical/emotional harm, or any suboptimal outcome, and by what definition of optimization? I'm not asking to be made an expert in family law overnight, but I can't help but feel that the best interests of the child is the beginning rather than the end of the discussion, and I would welcome some--indeed, any--clarification. Best wishes, Paul Horwitz University of Alabama School of Law ___ 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: Parental rights and physical conduct
Yes, I'm feeling some of the same confusion as Paul. I don't know much at all about family law. But my understanding was that the best interest of the child standard was emphatically not the standard for judicial or legislative interference with parental decisions. It is the standard for what happens to the child when custody is disputed among divorcing or divorced parents. But I thought the standard for interfering with an intact family was much higher-a showing of unfitness, of child abuse or neglect. Before this conversation, I assumed that unless circumcision constitutes abuse or neglect, parents have the right to do it to their children, with talk of best interests being irrelevant. Another way of putting it is that the law presumes parents act in the best interests of the children, a presumption that only gets overridden in exceptional situations, a constitutional presumption under the Troxel line of cases. So have I gotten this completely wrong? Best, Chris From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Paul Horwitz Sent: Friday, July 06, 2012 11:23 AM To: Law Religion issues for Law Academics Subject: RE: Parental rights and physical conduct This has been a very interesting discussion. I confess that at this point, I am quite confused about the meaning of best interests of the child. I understand it is a complex, context-driven, and multivalent test. But it would certainly help to understand the foundational values and defaults here and what interests are considered admissible or inadmissible. In some sense, the thinner the exposition of the test becomes, the more I wonder what thick assumptions underlie it. Take, for instance, the claim that [m]any would argue that it is in the best interest of the child to welcome him into a supportive, religious community with shared values and age-old historic traditions, and the response that [t]he question is what is in the interest of this child today. It's my own fault, I'm sure, but I'm having trouble figuring out exactly where this leaves us. Is it that it may be in the interest of the child today to welcome him into a supportive religious community but that it is not dispositive, or that the fact that the community is well-established and has shared values is not dispositive of the child's best interests? Is it that the possibility of a supportive religious community should never be relevant as between two possible custody dispositions? Is it an empirical question to be decided in each case? If it is potentially relevant but we acknowledge that some religious communities may risk harm to the child, what counts as harm? Only serious physical/emotional harm, or any suboptimal outcome, and by what definition of optimization? I'm not asking to be made an expert in family law overnight, but I can't help but feel that the best interests of the child is the beginning rather than the end of the discussion, and I would welcome some--indeed, any--clarification. Best wishes, Paul Horwitz University of Alabama School of Law ___ 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: Parental rights and physical conduct
Mark asks me whether Yoder was correctly decided. In some ways, this is a very difficult question for me. I think the grounds on which Yoder explicitly rests (communitarian view of free exercise, not a parental right generally) cannot be justified. If parents have a constitutional right to home educate children (after 8th grade, or 14 years old? Those were the Yoder facts), then the right should belong to all parents, with or without religious motivation, with or without a religious community behind them. And such parents should have to show they are making adequate provision for alternative education (as the Amish did, though it was gendered and very narrow). In the wake of Yoder, after a number of unsuccessful constitutional claims in the state courts by other parents (some religious and some secular), pitched political battles led to a situation in which virtually every state now has some statutory or regulatory provision for home education (always requiring an education plan approved by state or local authorities). So the system has come around to a religion-neutral result, supportive of home education, though not by way of constitution law. And that seems like a good thing. I would guess that Yoder as a religion-specific precedent (a hybrid rights case) has not had much generative power. I''d be happy to learn of examples to the contrary, On Fri, Jul 6, 2012 at 3:13 AM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: Chip, setting aside whether the Court in Smith adequately distinguished Yoder, was Yoder decided incorrectly? If it was correctly decided, how does it fit with a regime under which we are to be indifferent to religious motivations and are to ignore historically-recognized religious practices? ** ** Mark ** ** Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law ** ** ** ** ** ** *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Ira Lupu *Sent:* Thursday, July 05, 2012 2:45 PM *To:* Law Religion issues for Law Academics *Subject:* Re: Parental rights and physical conduct ** ** If Smith's hybrid rights explanation of Yoder is all there is against my argument that religious motivation should add or subtract nothing from parental rights to engage in particular child-rearing practices, I'll happily rest my case. All I'm suggesting is that once we have a general set of constitutional rights to protect a practice, religious motivation for the practice should add or subtract nothing. The Phelps (in Snyder v. Phelps) would not be on weaker First A ground if their obnoxious protests were wholly secular. The children's rights context may be the strongest one for rejecting permissive, religion-specific accommodations, because of the third party harms. But it's not the only such context, with or without other enumerated rights in the picture (see Texas Monthly). On Thu, Jul 5, 2012 at 4:58 PM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: If I recall correctly, the Court in Yoder relied on the free exercise clause in holding that the Amish had the right to an exemption from the otherwise applicable law with respect to sending children to school. Religion does not seem, in the Court’s view, to be irrelevant to parental rights. Smith even recognized this in the way it distinguished Yoder. It is strange to me that a specifically enumerated right to free exercise of religion would be reduced to or made subordinate to a religion-neutral unenumerated right of parents to control their children’s upbringing. Of course, if we want to focus on unenumerated rights, I believe the Justice with the most restrictive view, Justice Scalia, is willing to recognize rights that have been accepted throughout our history, as long as we consider “the most specific level at which a relevant tradition protecting, or denying protection to, the asserted right can be identified.” See Michael H. v. Gerald D. Circumcision of male infants for religious or community-maintaining purposes has never before, as far as I know, been challenged as being something a Jewish family could be prohibited from doing. It has been understood as a part of what is required for a religious community to exist and for parents to bring their children into such a community. It is a very specific practice that has been recognized in our traditions. Mark S. Scarberry Pepperdine Univ. School of Law Malibu, CA 90263 (310)506-4667 ** ** ___ 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
Relevance of Parham v JR To Circumcision Debate
I think some guidance on relative rights of parents and children to make a decision that could arguably either harm the child or be in the child's best interest are found in the Supreme Court's 1979 decision in Parham v. J.R. on parental commitment of a minor to a state mental hospital. While there is language in Chief Justice Burger's opinion that may point more than one way in the circumcision example, I call your attention to these excerpts: Simply because the decision of a parent is not agreeable to a child, or because it involves risks, does not automatically transfer the power to make that decision from the parents to some agency or officer of the state. The same characterizations can be made for a tonsillectomy, appendectomy, or other medical procedure. Most children, even in adolescence, simply are not able to make sound judgments concerning many decisions, including their need for medical care or treatment. Parents can and must make those judgments. Here, there is no finding by the District Court of even a single instance of bad faith by any parent of any member of appellees' class The fact that a child may balk at hospitalization or complain about a parental refusal to provide cosmetic surgery does not diminish the parents' authority to decide what is best for the child ... [W]e conclude that our precedents permit the parents to retain a substantial, if not the dominant, role in the decision, absent a finding of neglect or abuse, and that the traditional presumption that the parents act in the best interests of their child should apply. We also conclude, however, that the child's rights and the nature of the commitment decision are such that parents cannot always have absolute and unreviewable discretion to decide whether to have a child institutionalized. They, of course, retain plenary authority to seek such care for their children, subject to a physician's independent examination and medical judgment. Howard Friedman ___ 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: Parental rights and physical conduct
I agree with Chris entirely when it comes to questions having to do with what to teach the child, whom to expose the child to, where to live with the child, and similar child-rearing questions: There, in an intact family, a court may not intrude simply on the grounds that some other form of child-rearing - or some other set of child-rearers - would be more in the child's best interests, but must show parental unfitness. But when it comes to physical injury to the child, or danger of physical injury, many rules restrain parents without a showing of parental unfitness. I don't think that driving a child without a child safety seat is a mark of parental unfitness; the risk to the child is fairly low, and I don't think parents should lose custody of their children for this. Yet the law may require parents to use child safety seats. Likewise, having a child work before a certain age might not be a mark of parental unfitness, but it is forbidden. Likewise, my sense is that many states, including my own California, outlaw the tattooing of minors (see, e.g., Cal. Penal Code sec. 653), which interferes with parents' ability to get their children tattooed. I don't think the rationale is that a parent who authorizes such a tattoo is an unfit parent - just that when it comes to sufficiently substantial alterations of a person's body, and absent a medical reason (there is a medical exemption to the California law, by the way), those alterations should only happen with that person's consent, which can only be meaningfully given if the person is an adult. So I certainly don't think that the law generally mandates a best interests of the child standard, outside the child custody context. But I also don't think that the law generally mandates an unfitness [or] child abuse or neglect standard, when it comes to decisions that involve physical injury or threat of injury (and I mean injury here to include physical alterations, such as tattoos). Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Christopher Lund Sent: Friday, July 06, 2012 9:07 AM To: 'Law Religion issues for Law Academics' Subject: RE: Parental rights and physical conduct Yes, I'm feeling some of the same confusion as Paul. I don't know much at all about family law. But my understanding was that the best interest of the child standard was emphatically not the standard for judicial or legislative interference with parental decisions. It is the standard for what happens to the child when custody is disputed among divorcing or divorced parents. But I thought the standard for interfering with an intact family was much higher-a showing of unfitness, of child abuse or neglect. Before this conversation, I assumed that unless circumcision constitutes abuse or neglect, parents have the right to do it to their children, with talk of best interests being irrelevant. Another way of putting it is that the law presumes parents act in the best interests of the children, a presumption that only gets overridden in exceptional situations, a constitutional presumption under the Troxel line of cases. So have I gotten this completely wrong? Best, Chris From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Paul Horwitz Sent: Friday, July 06, 2012 11:23 AM To: Law Religion issues for Law Academics Subject: RE: Parental rights and physical conduct This has been a very interesting discussion. I confess that at this point, I am quite confused about the meaning of best interests of the child. I understand it is a complex, context-driven, and multivalent test. But it would certainly help to understand the foundational values and defaults here and what interests are considered admissible or inadmissible. In some sense, the thinner the exposition of the test becomes, the more I wonder what thick assumptions underlie it. Take, for instance, the claim that [m]any would argue that it is in the best interest of the child to welcome him into a supportive, religious community with shared values and age-old historic traditions, and the response that [t]he question is what is in the interest of this child today. It's my own fault, I'm sure, but I'm having trouble figuring out exactly where this leaves us. Is it that it may be in the interest of the child today to welcome him into a supportive religious community but that it is not dispositive, or that the fact that the community is well-established and has shared values is not dispositive of the child's best interests? Is it that the possibility of a supportive religious community should never be relevant as between two possible custody dispositions? Is it an empirical question to be decided in each case? If it is potentially relevant but we
RE: Relevance of Parham v JR To Circumcision Debate
I think that accurately captures the rule - and likely the right rule - with regard to decisions made for medical reasons, when the decisions are within the range of plausible medical decisions. (As I've said all along, I think circumcision decisions may well fall in this category.) But I don't think it disposes of a parent's decision made for nonmedical reasons, or if the decision (1) has substantial and possibly harmful permanent physical effects and (2) there comes to be a medical consensus that the decision is not medically justified. An analogy: Say that parents want prescription-only psychotropic drugs administered to their child, and they make clear that the reason is not a medical judgment but purely a religious one. (The drug happens to be a sacrament to them, for instance.) It seems to me that Parham doesn't dispose of this situation. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Friedman, Howard M. Sent: Friday, July 06, 2012 9:35 AM To: Law Religion issues for Law Academics Subject: Relevance of Parham v JR To Circumcision Debate I think some guidance on relative rights of parents and children to make a decision that could arguably either harm the child or be in the child's best interest are found in the Supreme Court's 1979 decision in Parham v. J.R. on parental commitment of a minor to a state mental hospital. While there is language in Chief Justice Burger's opinion that may point more than one way in the circumcision example, I call your attention to these excerpts: Simply because the decision of a parent is not agreeable to a child, or because it involves risks, does not automatically transfer the power to make that decision from the parents to some agency or officer of the state. The same characterizations can be made for a tonsillectomy, appendectomy, or other medical procedure. Most children, even in adolescence, simply are not able to make sound judgments concerning many decisions, including their need for medical care or treatment. Parents can and must make those judgments. Here, there is no finding by the District Court of even a single instance of bad faith by any parent of any member of appellees' class The fact that a child may balk at hospitalization or complain about a parental refusal to provide cosmetic surgery does not diminish the parents' authority to decide what is best for the child ... [W]e conclude that our precedents permit the parents to retain a substantial, if not the dominant, role in the decision, absent a finding of neglect or abuse, and that the traditional presumption that the parents act in the best interests of their child should apply. We also conclude, however, that the child's rights and the nature of the commitment decision are such that parents cannot always have absolute and unreviewable discretion to decide whether to have a child institutionalized. They, of course, retain plenary authority to seek such care for their children, subject to a physician's independent examination and medical judgment. Howard Friedman ___ 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: German circumcision decision
I don't think that such agnosticism is generally sound, or even possible. Maybe God did command Jews to circumcise their children, or command Sikhs to wear turbans in a way that makes it impossible for them to wear motorcycle helmets, or command Rastafarians to smoke marijuana, or command white supremacist church members not to hire non-whites, or command Muslims to wage jihad; but our legal system, I think, must necessarily evaluate these things based on our judgments about what has impermissible secular effects, and I don't see how we can meaningful take into account the possibility that God has commanded the contrary. But in any event, even if such agnosticism is proper when deciding whether to protect someone against his own decisions - a situation where one can reasonably conclude that we shouldn't impose our paternalistic cost-benefit balancing on that person, given that he might be considering benefits that we don't - I don't see it as proper when it comes to deciding whether to let A cut off a part of B's body rather than of A's own (even when A is B's parent). After all, the child might well not believe in the religious command to circumcise when he grows up; and maybe he's right. Or maybe he'll come to believe that God doesn't want people to alter their bodies without strong reason (perhaps an analogy to the Jewish prohibition on tattooing, see http://www.myjewishlearning.com/practices/Ethics/Our_Bodies/Adorning_the_Body/Tattoos.shtml, though applied to circumcision instead). So if we choose not to decide, we still have made a choice, as some philosopher or other said - we have chosen to let someone, for religious reasons, alter the body of another person who by definition does not believe in that religion, and who might or might not grow up to believe in that religion. However we resolve that question, I don't think this sort of agnosticism has any helpful role to play here. Eugene Eric Rassbach writes: I think the problem with your non-medical reasons paragraph below is that it misstates the proper attitude of the state towards religious freedom and religious reasons given by parents. The state is supposed to be neutral on claims of religious obligation, not merely tolerant of them. And true neutrality (or agnosticism, if you will) means that the state doesn't just say Let the Jews do what they want as long as they aren't hurting anybody. It means saying, Maybe the Jews are right -- that is, maybe God really did command them to do what they are doing. The state and its judges are of course incompetent to *decide* such questions. But the proper response to such incompetence is not to disregard the religious claim entirely but to back off from deciding it as much as possible, precisely because the state cannot exclude the possibility of its truth. Otherwise the state is deciding a religious truth claim by resort to its own incompetence. Thus on a question where the medical interests are in equipoise, the tie has to go to the religious liberty interest, not to inactivity. That to me seems to be the case with respect to circumcision (though in my non-expert opinion the medical interests do not seem to be in equipoise). I understand that this runs counter to a mere tolerance understanding of where religious freedom rights come from, especially one heavily inflected by freedom of speech doctrine (cf. our sincerity discussion on this list a couple of years ago). But I don't think our system has adopted the mere tolerance philosophy, and in fact adopted an entirely different philosophy of rights during the Founding era. For evidence one need look only as far as the Declaration of Independence. Eric From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [religionlaw- boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene [vol...@law.ucla.edu] Sent: Wednesday, July 04, 2012 4:24 PM To: Law Religion issues for Law Academics Subject: RE: German circumcision decision Sorry for the delay responding - I was traveling Monday and Tuesday - but I'm not sure I grasp the argument in the first paragraph. My view is generally this: (1) People should generally have the power to make medical decisions for themselves. (2) Infants and children can't make such decisions. (3) Yet some such medical decisions must be made quickly, before the child becomes mature enough to decide. (4) We therefore delegate this power to make medical decisions to the parents. But this argument hinges on there being medical reasons for the decision - I don't see any reason for parents to have this power when they exercise it for nonmedical reasons. We may
Re: Parental rights and physical conduct
Eugene's tattoo example is very helpful for teeing up what has seemed to me to be the important distinction here (one I've tried to stress in my earlier posts): I think one big reason that most of us, unlike Eugene, are opposed to an anti-circumcision law is because most men who were circumcised at birth are grateful that they were -- or at least indifferent. That is to say, there's little to no correlation between the law and the honoring of the individual's own wishes. If, at some point, most (or even many) men came to resent this earlier choice of their parents, and were of the view that they'd rather not have been circumcised, then I think many of us would be much more sympathetic to the state stepping in to protect the choice the boy likely would have made at birth, notwithstanding what his parents preferred, and even where the parents' religion mandated the circumcision. In that case, this would appear to be far more analogous to tattoos (although even harder to undo) or, more analogous still, to female genital mutilation. But perhaps that's just me. Can I ask the rest of you who agree with me and Chip and Howard, et al. -- and who disagree with Eugene -- that an anti-circumcision law now would be deeply unwise and/or contrary to our constitutional tradition and/or violative of Troxel and/or a Free Exercise or RFRA violation: Would your views change if many or most men regretted the decisions that their parents made to circumcise them -- more men, that is, than those who regret that their parents chose *not *to circumcise them? Would such a law become wiser, more tolerable, more constitutional, in that world? On Fri, Jul 6, 2012 at 12:55 PM, Volokh, Eugene vol...@law.ucla.edu wrote: I agree with Chris entirely when it comes to questions having to do with what to teach the child, whom to expose the child to, where to live with the child, and similar child-rearing questions: There, in an intact family, a court may not intrude simply on the grounds that some other form of child-rearing – or some other set of child-rearers – would be more in the child’s best interests, but must show parental unfitness. ** ** But when it comes to physical injury to the child, or danger of physical injury, many rules restrain parents without a showing of parental unfitness. I don’t think that driving a child without a child safety seat is a mark of parental unfitness; the risk to the child is fairly low, and I don’t think parents should lose custody of their children for this. Yet the law may require parents to use child safety seats. Likewise, having a child work before a certain age might not be a mark of parental unfitness, but it is forbidden. ** ** Likewise, my sense is that many states, including my own California, outlaw the tattooing of minors (see, e.g., Cal. Penal Code sec. 653), which interferes with parents’ ability to get their children tattooed. I don’t think the rationale is that a parent who authorizes such a tattoo is an “unfit parent” – just that when it comes to sufficiently substantial alterations of a person’s body, and absent a medical reason (there is a medical exemption to the California law, by the way), those alterations should only happen with *that person’s *consent, which can only be meaningfully given if the person is an adult. ** ** So I certainly don’t think that the law generally mandates a “best interests of the child” standard, outside the child custody context. But I also don’t think that the law generally mandates an “unfitness [or] child abuse or neglect” standard, when it comes to decisions that involve physical injury or threat of injury (and I mean “injury” here to include physical alterations, such as tattoos). ** ** Eugene ** ** ** ** *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Christopher Lund *Sent:* Friday, July 06, 2012 9:07 AM *To:* 'Law Religion issues for Law Academics' *Subject:* RE: Parental rights and physical conduct ** ** Yes, I’m feeling some of the same confusion as Paul. ** ** I don’t know much at all about family law. But my understanding was that the “best interest of the child” standard was emphatically *not* the standard for judicial or legislative interference with parental decisions. It is the standard for what happens to the child when custody is disputed among divorcing or divorced parents. But I thought the standard for interfering with an intact family was much higher—a showing of unfitness, of child abuse or neglect. Before this conversation, I assumed that unless circumcision constitutes abuse or neglect, parents have the right to do it to their children, with talk of “best interests” being irrelevant. Another way of putting it is that the law presumes parents act in the best interests of the
RE: Parental rights and physical conduct
Yes (to Marty.) I'm someone inclined toward Marty's view, and I think the empirical question of regret is very important. Regret either way is important. If most circumcised men regret their infant circumcisions, then infant circumcision becomes harder to justify. Similarly, if most uncircumcised men regret not being circumcised as an infant, that too enters into it. It's easy to say that an uncircumcised man can always get circumcised (and he can). But it requires surgery and anesthetic in a very sensitive place. And there are a lot of emotional sunk costs too. I'm generally a strong believer in regulatory exemptions for Free Exercise, even when the rest of the world is doing something totally different. But what the rest of the world is doing is very important here, because it goes to the burden on the child. If 30% of boys are circumcised, allowing me to circumcise my son seems an easy call. My son won't be different from the other kids in his class; his future sexual partners won't think of him as weird. But if only 2% are circumcised, it's a different story. If it's only 2% and those 2% are treated like freaks, then it's a very different story. My understanding is that the circumcision rate in the US is still above 50%, though it's below 50% in some of the western states. Changes in that are highly relevant. But given the demographics now, I'm inclined to think this is an easy call in favor of parental autonomy and free exercise. Marty/Eugene's tattoo point is marvelous, I think. The numbers of 18-25 year olds with tattoos is staggering, something like 40%. If that rises to say 80%, then the tattooing of a child will seem more justifiable, because tattoo regret will probably drop. On the other hand, kids may regret the kind of tattoo that Mom and Dad wanted (and of course they will!), so I guess it's still different than circumcision. Best, Chris From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Friday, July 06, 2012 1:19 PM To: Law Religion issues for Law Academics Subject: Re: Parental rights and physical conduct Eugene's tattoo example is very helpful for teeing up what has seemed to me to be the important distinction here (one I've tried to stress in my earlier posts): I think one big reason that most of us, unlike Eugene, are opposed to an anti-circumcision law is because most men who were circumcised at birth are grateful that they were -- or at least indifferent. That is to say, there's little to no correlation between the law and the honoring of the individual's own wishes. If, at some point, most (or even many) men came to resent this earlier choice of their parents, and were of the view that they'd rather not have been circumcised, then I think many of us would be much more sympathetic to the state stepping in to protect the choice the boy likely would have made at birth, notwithstanding what his parents preferred, and even where the parents' religion mandated the circumcision. In that case, this would appear to be far more analogous to tattoos (although even harder to undo) or, more analogous still, to female genital mutilation. But perhaps that's just me. Can I ask the rest of you who agree with me and Chip and Howard, et al. -- and who disagree with Eugene -- that an anti-circumcision law now would be deeply unwise and/or contrary to our constitutional tradition and/or violative of Troxel and/or a Free Exercise or RFRA violation: Would your views change if many or most men regretted the decisions that their parents made to circumcise them -- more men, that is, than those who regret that their parents chose not to circumcise them? Would such a law become wiser, more tolerable, more constitutional, in that world? On Fri, Jul 6, 2012 at 12:55 PM, Volokh, Eugene vol...@law.ucla.edu wrote: I agree with Chris entirely when it comes to questions having to do with what to teach the child, whom to expose the child to, where to live with the child, and similar child-rearing questions: There, in an intact family, a court may not intrude simply on the grounds that some other form of child-rearing - or some other set of child-rearers - would be more in the child's best interests, but must show parental unfitness. But when it comes to physical injury to the child, or danger of physical injury, many rules restrain parents without a showing of parental unfitness. I don't think that driving a child without a child safety seat is a mark of parental unfitness; the risk to the child is fairly low, and I don't think parents should lose custody of their children for this. Yet the law may require parents to use child safety seats. Likewise, having a child work before a certain age might not be a mark of parental unfitness, but it is forbidden. Likewise, my sense is that many states, including my own California, outlaw the
Re: RE: Parental rights and physical conduct
But that is invoking a non-Jewish standard of Jewishness (and I speak as someone intensely exasperated by refusal to acknowledge any distinction between ethnic and religious Jewishness.*) Someone can say I spit on G_d, I spit on Torah, I spit on halakhah.; He can spend Sabbath behind a desk, and never have seen the inside of a synagogue. No one will say You aren't Jewish'. All that matters is who his mother was. And yes, I am acutely aware of the cognitive dissonance in play when as soon as someone says I believe in Jesus, it suddenly ceases to matter who his mother was (and the israeli courts will say so officially in applying the Law of Return.) (* not to mention the frustration of being Jewish enough for any real anti-Semites, but not for the Jews.)On 07/05/12, Volokh, Eugenevol...@law.ucla.edu wrote: The difficulty is that newborn males aren’t Jewish in the sense of actually believing in the Jewish religion – they are, after all, newborns. ___ 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: RE: Parental rights and physical conduct
And that “non-Jewish standard of ‘Jewishness’” – that newborn males aren’t Jewish – is, I think, precisely the standard that our government must adopt. Our law cannot (with some excepts related to political distinctions, such as membership in an Indian tribe) accept a notion of rights or protections that turns on the ethnicity of a child’s forebears. To be sure, to religious Jews an 8-day-old baby is Jewish, and bound by God’s law. But the government must, I think, accept that child as someone who has no religious beliefs of his own, and who may one day become a Christian, an atheist, a religious Jew, or anything else. Whatever rationale courts or legislatures may use in reaching whatever result they reach on the circumcision question, I think they cannot rely on the notion that somehow circumcising the baby protects the baby’s own religious interests as a Jew. (That is a separate question as to whether they can rely on arguments about what the child is empirically likely to prefer when he becomes an adult.) Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of wlind...@verizon.net Sent: Friday, July 06, 2012 11:02 AM To: religionlaw@lists.ucla.edu Subject: Re: RE: Parental rights and physical conduct But that is invoking a non-Jewish standard of Jewishness (and I speak as someone intensely exasperated by refusal to acknowledge any distinction between ethnic and religious Jewishness.*) Someone can say I spit on G_d, I spit on Torah, I spit on halakhah.; He can spend Sabbath behind a desk, and never have seen the inside of a synagogue. No one will say You aren't Jewish'. All that matters is who his mother was. And yes, I am acutely aware of the cognitive dissonance in play when as soon as someone says I believe in Jesus, it suddenly ceases to matter who his mother was (and the israeli courts will say so officially in applying the Law of Return.) (* not to mention the frustration of being Jewish enough for any real anti-Semites, but not for the Jews.) On 07/05/12, Volokh, Eugenevol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: The difficulty is that newborn males aren’t Jewish in the sense of actually believing in the Jewish religion – they are, after all, newborns. ___ 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.
Equivocal evidence, and the right to choose
From what I understand, think the health arguments for circumcision are substantial, and, as I've noted before, to the extent that parents are making a medical choice in favor of circumcision, I think it makes sense to defer to their judgment, just as it does for other medical choices. Likewise, I'm inclined to say that if there was reason to think (though also reason to doubt) that circumcision would enhance sexual function, parents could also reasonable choose that as a medical matter. The interesting question, I think, is how we should resolve the matter if (1) the medical consensus comes to be that there was no medical benefit of circumcision and no sexual function benefits, but (2) there comes to be no consensus on whether there is a sexual function cost. My inclination would be to say that the uncertainty should not be resolved in favor of parental choice, but rather resolved in favor of patient choice: the principle that - absent medical need - practically irreversible and potentially harmful surgery should not be undertaken without the actual consent of the adult subject of the surgery. Eugene Eric Rassbach writes: I am not sure that you can even rely on a claim that the sexual function was necessarily reduced; I know that some proponents of circumcision claim that circumcision actually enhances sexual function. Would you agree that if the evidence on that point is ambiguous or equivocal, then circumcision falls within the realm of things that parents can decide? That is reinforced by the fact that there are health reasons offered for circumcision; if those rationales are true (or perhaps just plausible?) then it is less like having an ear cut off and more like having an unsightly mole excised or an extra toe removed, both of which are easier at a younger age. ___ 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: Parental rights and physical conduct
As I mentioned, I think that statutory law on this is quite a mix. The best way to characterize it, I think, is that (1) there's a broad consensus that, for overdetermined reasons (practical to some, moral to others), most decisions about children are left to parents, (2) there's a broad consensus that, when a medical decision is to be made, a minor patient's parents generally make it, within the range of what is seen by the medical profession as reasonable, (3) constitutional precedents hold that parents have broad authority over educational decisions and similar childrearing decisions that likely don't have a physical effect on the child, but (4) legislatures step in, in a wide range of cases, to restrict parents when there's a risk of physical injury, whether the issue is corporal punishment, safety belts, tattoos, permission to have sex, or a wide range of other things. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Thursday, July 05, 2012 8:07 AM To: Law Religion issues for Law Academics Subject: Re: Parental rights and physical conduct I don't know why we should be limited to the particulars of Supreme Court decisions when we think about this. I suggest that the approach I outlined is deeply embedded in the statutory and judge-made law of all the states. And, if I'm right about, then the relevant constitutional doctrines of substantive due process liberty would indeed give great weight to that long-standing and wide-spread legal tradition (Troxel v. Granville). On Thu, Jul 5, 2012 at 10:57 AM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: This raises a fascinating and practically very important question (because there are more than 10 times as many American parents who authorize circumcision for nonreligious reasons than for religious reasons): Do Meyer/Pierce rights extend to the right to raise one's child in the sense of selecting an education for the child, setting behavior rules for the child, choosing a place to live with the child, and so on, or do they also have the constitutional right (not just a common-law right) to physically alter the child's body, including for nonmedical reasons? When I last checked the caselaw on the subject, the Supreme Court cases weren't clear on that. Are there cases I'm missing on that? To be sure, I agree that parents are generally allowed to let their children put themselves at risk in various ways, such as by playing tackle football and not wearing enough sunscreen. But that doesn't tell us much about whether that's a constitutional right. And indeed I don't think that laws banning child labor, for instance, have been judged as interfering with parental rights (imagine Prince without the religious motivation), even though many such laws (again, imagine Prince) are pretty clearly overbroad. Likewise, I would think that a ban on ear piercing, tattooing, etc. of minors, even when the parents order such actions, would be constitutional, though of course that's part of the dispute between us. Is there dispositive caselaw I'm missing here? Eugene From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Thursday, July 05, 2012 7:38 AM To: Law Religion issues for Law Academics Subject: Re: German circumcision decision We are making this so much more complicated than it has to be. I cannot speak to the particulars of the case in Germany, so I won't try. But in the U.S, we have a longstanding tradition, initially at common law and ultimately in constitutional law (Pierce, Meyer, etc.) of parental control over the upbringing of their children. The state can interfere with that control only for very good reason, and the state bears the burden of persuasion that it has such a reason. Compulsory education, compulsory vaccination, and limiting child labor are the most obvious, specific policies that interfere with those rights of parental control. (Perhaps I'm missing something on that list -- happy to learn of other such specific policies.) Outside of such specific policies, parents (or other lawful guardians) presumptively control decisions about child well-being, unless the parents violate general norms about abuse or neglect. Parents do all sorts of things that put their children's bodies at risk for permanent harm -- letting them play tackle football, go out in the sun all day without enough sunscreen, etc. Whether a particular practice of (more or less permanent) body-altering -- ear-piercing, nose-straightening, orthodonture -- is abusive depends on a social and medical judgment on the actuality of present harm, and in some cases the likelihood of future harm. But two propositions
Re: Equivocal evidence, and the right to choose
Eugene: Without regard to what adult subjects generally think of the procedure having been done (or not done) to them? Shouldn't we defer to parents at least until such time as there are many adults who are outraged that the state didn't step in? On Fri, Jul 6, 2012 at 6:19 PM, Volokh, Eugene vol...@law.ucla.edu wrote: From what I understand, think the health arguments for circumcision are substantial, and, as I've noted before, to the extent that parents are making a medical choice in favor of circumcision, I think it makes sense to defer to their judgment, just as it does for other medical choices. Likewise, I'm inclined to say that if there was reason to think (though also reason to doubt) that circumcision would enhance sexual function, parents could also reasonable choose that as a medical matter.** ** ** ** The interesting question, I think, is how we should resolve the matter if (1) the medical consensus comes to be that there was no medical benefit of circumcision and no sexual function benefits, but (2) there comes to be no consensus on whether there is a sexual function cost. My inclination would be to say that the uncertainty should *not* be resolved in favor of parental choice, but rather resolved in favor of patient choice: the principle that – absent medical need – practically irreversible and potentially harmful surgery should not be undertaken without the actual consent of the adult subject of the surgery. ** ** Eugene ** ** Eric Rassbach writes: ** ** I am not sure that you can even rely on a claim that the sexual function was necessarily reduced; I know that some proponents of circumcision claim that circumcision actually enhances sexual function. Would you agree that if the evidence on that point is ambiguous or equivocal, then circumcision falls within the realm of things that parents can decide? That is reinforced by the fact that there are health reasons offered for circumcision; if those rationales are true (or perhaps just plausible?) then it is less like having an ear cut off and more like having an unsightly mole excised or an extra toe removed, both of which are easier at a younger age. ___ 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. ___ 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: Equivocal evidence, and the right to choose
I appreciated Marty's arguments in favor of considering how most circumcised adults view their parents' decision to circumcise them as babies, and perhaps there is something to them. I have two reservations, though, about this (albeit ones that I might be persuaded out of). First, while adult circumcision is much more painful than child circumcision (or at least the pain is more likely to be remembered), my sense is that it's still much easier to circumcise than to undo a circumcision (if undoing a circumcision, in the sense of replacing the tissue with comparably sensitive tissue, is possible). If that's so, then the sizes of the groups - those who wish they hadn't been circumcised, those who are happy they were circumcised, those who wish they had been circumcised, and those who are happy they weren't circumcised - would need to be adjusted accordingly (though I don't know exactly how). Second, and more fundamentally, I think there is a general moral principle that people usually have a right not to have their bodies altered without their permission, at least in a way that involves some substantial risk of substantial loss of function (thus setting aside the ear piercing example). I think that principle can be trumped by parents' reasonable medical judgments, on the theory that someone has to make these medical choices, and the parents are the best people to make them. But I don't think that principle can be trumped by parents' personal religious preferences, which might not match the religious preferences of the adult into whom the child grows. (On that, I think Marty and I may agree.) And, tentatively, I don't think that principle can be trumped by a desire to make life easier for other adults into whom other children will grow. If John Doe asks, Why did the law let my parents cut off part of my body?, I don't think the answer that We thought most people whose parents ordered this would be happier with it removed, for religious reasons suffices, because that's not a sufficient reason to justify such surgery in the absence of the patient's own mature consent. Does that make sense? Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Friday, July 06, 2012 3:26 PM To: Law Religion issues for Law Academics Subject: Re: Equivocal evidence, and the right to choose Eugene: Without regard to what adult subjects generally think of the procedure having been done (or not done) to them? Shouldn't we defer to parents at least until such time as there are many adults who are outraged that the state didn't step in? On Fri, Jul 6, 2012 at 6:19 PM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: From what I understand, think the health arguments for circumcision are substantial, and, as I've noted before, to the extent that parents are making a medical choice in favor of circumcision, I think it makes sense to defer to their judgment, just as it does for other medical choices. Likewise, I'm inclined to say that if there was reason to think (though also reason to doubt) that circumcision would enhance sexual function, parents could also reasonable choose that as a medical matter. The interesting question, I think, is how we should resolve the matter if (1) the medical consensus comes to be that there was no medical benefit of circumcision and no sexual function benefits, but (2) there comes to be no consensus on whether there is a sexual function cost. My inclination would be to say that the uncertainty should not be resolved in favor of parental choice, but rather resolved in favor of patient choice: the principle that - absent medical need - practically irreversible and potentially harmful surgery should not be undertaken without the actual consent of the adult subject of the surgery. Eugene Eric Rassbach writes: I am not sure that you can even rely on a claim that the sexual function was necessarily reduced; I know that some proponents of circumcision claim that circumcision actually enhances sexual function. Would you agree that if the evidence on that point is ambiguous or equivocal, then circumcision falls within the realm of things that parents can decide? That is reinforced by the fact that there are health reasons offered for circumcision; if those rationales are true (or perhaps just plausible?) then it is less like having an ear cut off and more like having an unsightly mole excised or an extra toe removed, both of which are easier at a younger age. ___ To post, send message to Religionlaw@lists.ucla.edumailto: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
