Ban on Feeding Homeless
For those not picking up on Philadelphia area stories, this might be of interest, perhaps especially to those researching and writing in the area. For some time, religious and other organizations have been feeding homeless people at outdoor sites in Philadelphia. Citing public health and other concerns, the city banned the practice. The religious organizations have challenged the ban, claiming that it violates their (and their members') First Amendment free exercise rights (What they will not compromise on, however, is what they described as a God-directed mission to minister to the needs of homeless people where they live - on the parkway.) Yesterday testimony concluded, and oral argument will now take place. Enforcement of the ban has been stayed pending the litigation. http://www.philly.com/philly/news/breaking/20120710_Nutter__Ban_on_feeding_part_of_plan_to_end_homelessness.html Jim Maule Professor of Law Villanova University School of Law ma...@law.villanova.edu http://vls.law.villanova.edu/prof/maule ___ 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: Ban on Feeding Homeless
The city (in particular, the mayor) argue that operating the feeding stations on the parkway could rob homeless people of dignity, spread food-borne disease, and degrade the park with trash and human waste. The religious organizations claim that this is a red herring because they have been certified after taking the city's food-sanitation course, and clean the area. They claim that the city is trying to take over the feeding by funneling the homeless into inside operations run by the city, but point out that the city lacks the necessary facilities to handle all of the homeless. The city responded with a proposal for a temporary transition, letting the organizations do outside feedings in the city hall plaza. The religious organizations reply that the feedings need to take place where the homeless live, and that this is a matter of religious principle for them. Others - including commentators not connected with the organizations - claim that the entire issue is a desire by the city to move the homeless people who live on the parkway to other locations. The parkway, for those not familiar with the city, is one of two grand avenues of culture, with the Art Museum at the head, the Franklin Institute, the newly relocated Barnes Art Museum, several other museums, the Roman Catholic cathedral, etc, gracing the parkway (the other avenue is the Avenue of the Arts - Broad Street - with concert halls and some other institutions). In his testimony, the mayor denied that the relocation of the Barnes was a factor, claiming that his goal to end homelessness has existed for decades, and that feeding the homeless doesn't end homelessness but perhaps even enables it. During his testimony, to quote the article, Nutter testified somberly and described his opposition to feeding homeless people in public in religious terms, as 'a calling.' That seems to infuse the case with the additional question of whether the mayor is injecting HIS theological beliefs (about how to deal with homelessness) into the dispute. That opens up interesting questions about dealing with the private theological beliefs of a public official that color or even morph into the official's political positions. Are they protected? Are they relevant to the issue? It's unclear how the city's health and safety concerns are alleviated by moving the feeding areas from the parkway to city hall plaza. The only difference is that it relieves the parkway of trash and waste, but city officials testified that their goal was not to remove the homeless from the parkway. According to another article, a pastor of one of the organizations explained in her testimony that the congregation holds worship services at the location where they subsequently feed the homeless. The ordinance bans feeding, not worship. But what if the feeding is considered by the religious organization to be part of worship? (I don't know if it so thinks or believes, and it doesn't appear as though that question was asked or answered.) In some respects, the case seems to involve a variety of contested factual questions. What is the city's goal and purpose? Is it really trying to regulate public health or is it trying to accomplish something else? Is there less risk of food contamination if the feedings occur at city hall plaza rather than the parkway? How does moving the feeding locations improve the dignity of the homeless? That would suggest the case is one that turns on the facts. Yet the U.S. District Judge hearing the case said, when setting oral argument for tomorrow, This may be a little more complex than it seemed before. But that doesn't necessarily mean it's more challenging than a final exam question in a First Amendment course. Jim Maule From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Finkelman, Paul paul.finkel...@albanylaw.edu Sent: Wednesday, July 11, 2012 10:40 AM To: Law Religion issues for Law Academics Subject: RE: Ban on Feeding Homeless Is this a standard, time, place, manner restriction with pretty standard police powers to regulate public health? Would the church members be allowed to hold a public march on the same parkway, or leaflet cars on the parkway? This story almost sounds like some final exam question in a First Amendment course. -- Paul Finkelman President William McKinley Distinguished Professor of Law and Public Policy Albany Law School 80 New Scotland Avenue Albany, NY 12208-3494 518-445-3386 (o) 518-445-3363 (f) www.paulfinkelman.com From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of James Edward Maule Sent: Wednesday, July 11, 2012 10:35 AM To: Law Religion issues for Law Academics Subject: Ban on Feeding Homeless For those not picking up on Philadelphia area stories, this might be of interest, perhaps especially to those researching and writing in the area. For some time,
RE: Ban on Feeding Homeless
Jim, is this only a First Amendment claim? Or is there also a Pennsylvania RFRA claim? Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of James Edward Maule Sent: Wednesday, July 11, 2012 10:35 AM To: Law Religion issues for Law Academics Subject: Ban on Feeding Homeless For those not picking up on Philadelphia area stories, this might be of interest, perhaps especially to those researching and writing in the area. For some time, religious and other organizations have been feeding homeless people at outdoor sites in Philadelphia. Citing public health and other concerns, the city banned the practice. The religious organizations have challenged the ban, claiming that it violates their (and their members') First Amendment free exercise rights (What they will not compromise on, however, is what they described as a God-directed mission to minister to the needs of homeless people where they live - on the parkway.) Yesterday testimony concluded, and oral argument will now take place. Enforcement of the ban has been stayed pending the litigation. http://www.philly.com/philly/news/breaking/20120710_Nutter__Ban_on_feeding_p art_of_plan_to_end_homelessness.html Jim Maule Professor of Law Villanova University School of Law ma...@law.villanova.edu http://vls.law.villanova.edu/prof/maule ___ 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: Ban on Feeding Homeless
The Eleventh Circuit sees neither a free speech nor a free exercise problem with time, place, and frequency restrictions on public feedings in traditional public fora. First Vagabonds Church of God v. City of Orlando, 638 F.3d 756 (11th Cir. 2011) (en banc) (assuming without deciding that feeding is expressive conduct, restriction upheld under O'Brien), reinstating First Vagabonds Church of God v. City of Orlando, 610 F.3d 1274, 1285-1292 (11th Cir. 2010) (public feeding restrictions are generally applicable laws that do not violate the free exercise clause, applying Smith, or Florida's RFRA). Michael R. Masinter 3305 College Avenue Professor of Law Fort Lauderdale, FL 33314 Nova Southeastern University 954.262.6151 (voice) masin...@nova.edu954.262.3835 (fax) Quoting James Edward Maule ma...@law.villanova.edu: The city (in particular, the mayor) argue that operating the feeding stations on the parkway could rob homeless people of dignity, spread food-borne disease, and degrade the park with trash and human waste. The religious organizations claim that this is a red herring because they have been certified after taking the city's food-sanitation course, and clean the area. They claim that the city is trying to take over the feeding by funneling the homeless into inside operations run by the city, but point out that the city lacks the necessary facilities to handle all of the homeless. The city responded with a proposal for a temporary transition, letting the organizations do outside feedings in the city hall plaza. The religious organizations reply that the feedings need to take place where the homeless live, and that this is a matter of religious principle for them. Others - including commentators not connected with the organizations - claim that the entire issue is a desire by the city to move the homeless people who live on the parkway to other locations. The parkway, for those not familiar with the city, is one of two grand avenues of culture, with the Art Museum at the head, the Franklin Institute, the newly relocated Barnes Art Museum, several other museums, the Roman Catholic cathedral, etc, gracing the parkway (the other avenue is the Avenue of the Arts - Broad Street - with concert halls and some other institutions). In his testimony, the mayor denied that the relocation of the Barnes was a factor, claiming that his goal to end homelessness has existed for decades, and that feeding the homeless doesn't end homelessness but perhaps even enables it. During his testimony, to quote the article, Nutter testified somberly and described his opposition to feeding homeless people in public in religious terms, as 'a calling.' That seems to infuse the case with the additional question of whether the mayor is injecting HIS theological beliefs (about how to deal with homelessness) into the dispute. That opens up interesting questions about dealing with the private theological beliefs of a public official that color or even morph into the official's political positions. Are they protected? Are they relevant to the issue? It's unclear how the city's health and safety concerns are alleviated by moving the feeding areas from the parkway to city hall plaza. The only difference is that it relieves the parkway of trash and waste, but city officials testified that their goal was not to remove the homeless from the parkway. According to another article, a pastor of one of the organizations explained in her testimony that the congregation holds worship services at the location where they subsequently feed the homeless. The ordinance bans feeding, not worship. But what if the feeding is considered by the religious organization to be part of worship? (I don't know if it so thinks or believes, and it doesn't appear as though that question was asked or answered.) In some respects, the case seems to involve a variety of contested factual questions. What is the city's goal and purpose? Is it really trying to regulate public health or is it trying to accomplish something else? Is there less risk of food contamination if the feedings occur at city hall plaza rather than the parkway? How does moving the feeding locations improve the dignity of the homeless? That would suggest the case is one that turns on the facts. Yet the U.S. District Judge hearing the case said, when setting oral argument for tomorrow, This may be a little more complex than it seemed before. But that doesn't necessarily mean it's more challenging than a final exam question in a First Amendment course. Jim Maule From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Finkelman, Paul paul.finkel...@albanylaw.edu Sent: Wednesday, July 11,
Re: Ban on Feeding Homeless
There is also a Pennsylvania RFRA claim. The ACLU's complaint is at http://www.aclupa.org/downloads/Chosen300Complaint.pdf I hope that helps, Allen Asch -Original Message- From: Douglas Laycock dlayc...@virginia.edu To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu Sent: Wed, Jul 11, 2012 9:01 am Subject: RE: Ban on Feeding Homeless Jim, is this only a First Amendment claim? Or is there also a Pennsylvania RFRA claim? Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of James Edward Maule Sent: Wednesday, July 11, 2012 10:35 AM To: Law Religion issues for Law Academics Subject: Ban on Feeding Homeless For those not picking up on Philadelphia area stories, this might be of interest, perhaps especially to those researching and writing in the area. For some time, religious and other organizations have been feeding homeless people at outdoor sites in Philadelphia. Citing public health and other concerns, the city banned the practice. The religious organizations have challenged the ban, claiming that it violates their (and their members’) First Amendment free exercise rights (“What they will not compromise on, however, is what they described as a God-directed mission to minister to the needs of homeless people where they live - on the parkway.”) Yesterday testimony concluded, and oral argument will now take place. Enforcement of the ban has been stayed pending the litigation. http://www.philly.com/philly/news/breaking/20120710_Nutter__Ban_on_feeding_part_of_plan_to_end_homelessness.html Jim Maule Professor of Law Villanova University School of Law ma...@law.villanova.edu http://vls.law.villanova.edu/prof/maule ___ 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: Ban on Feeding Homeless
OOPS, ACLU complaint at http://www.aclupa.org/downloads/Chosen300Complaint.pdf -Original Message- From: Allen Asch aa...@aol.com To: religionlaw religionlaw@lists.ucla.edu Sent: Wed, Jul 11, 2012 9:17 am Subject: Re: Ban on Feeding Homeless There is also a Pennsylvania RFRA claim. The ACLU's complaint is at http://www.aclupa.org/downloads/Chosen300Complaint.pdf I hope that helps, Allen Asch -Original Message- From: Douglas Laycock dlayc...@virginia.edu To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu Sent: Wed, Jul 11, 2012 9:01 am Subject: RE: Ban on Feeding Homeless Jim, is this only a First Amendment claim? Or is there also a Pennsylvania RFRA claim? Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of James Edward Maule Sent: Wednesday, July 11, 2012 10:35 AM To: Law Religion issues for Law Academics Subject: Ban on Feeding Homeless For those not picking up on Philadelphia area stories, this might be of interest, perhaps especially to those researching and writing in the area. For some time, religious and other organizations have been feeding homeless people at outdoor sites in Philadelphia. Citing public health and other concerns, the city banned the practice. The religious organizations have challenged the ban, claiming that it violates their (and their members’) First Amendment free exercise rights (“What they will not compromise on, however, is what they described as a God-directed mission to minister to the needs of homeless people where they live - on the parkway.”) Yesterday testimony concluded, and oral argument will now take place. Enforcement of the ban has been stayed pending the litigation. http://www.philly.com/philly/news/breaking/20120710_Nutter__Ban_on_feeding_part_of_plan_to_end_homelessness.html Jim Maule Professor of Law Villanova University School of Law ma...@law.villanova.edu http://vls.law.villanova.edu/prof/maule ___ 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: Ban on Feeding Homeless
Doug, I don't know. I tried to find the actual complaint but it's not yet available, as best as I can tell. The second-hand reports - in print as well as on radio and television - refer to First Amendment and I've not heard any reference to the Pennsylvania RFRA (but that doesn't mean it's not in the complaint, as it might slip by reporters or be trimmed out of a report by an editor). Jim From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Wednesday, July 11, 2012 12:00 PM To: 'Law Religion issues for Law Academics' Subject: RE: Ban on Feeding Homeless Jim, is this only a First Amendment claim? Or is there also a Pennsylvania RFRA claim? Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of James Edward Maule Sent: Wednesday, July 11, 2012 10:35 AM To: Law Religion issues for Law Academics Subject: Ban on Feeding Homeless For those not picking up on Philadelphia area stories, this might be of interest, perhaps especially to those researching and writing in the area. For some time, religious and other organizations have been feeding homeless people at outdoor sites in Philadelphia. Citing public health and other concerns, the city banned the practice. The religious organizations have challenged the ban, claiming that it violates their (and their members') First Amendment free exercise rights (What they will not compromise on, however, is what they described as a God-directed mission to minister to the needs of homeless people where they live - on the parkway.) Yesterday testimony concluded, and oral argument will now take place. Enforcement of the ban has been stayed pending the litigation. http://www.philly.com/philly/news/breaking/20120710_Nutter__Ban_on_feeding_part_of_plan_to_end_homelessness.html Jim Maule Professor of Law Villanova University School of Law ma...@law.villanova.edumailto:ma...@law.villanova.edu http://vls.law.villanova.edu/prof/maule ___ 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: Ban on Feeding Homeless
Thanks, Allen. For some reason none of my search “techniques” pulled that up. Jim Maule From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Allen Asch Sent: Wednesday, July 11, 2012 12:17 PM To: religionlaw@lists.ucla.edu Subject: Re: Ban on Feeding Homeless There is also a Pennsylvania RFRA claim. The ACLU's complaint is at http://www.aclupa.org/downloads/Chosen300Complaint.pdfhttp://www.aclupa.org/downloahttp:/www.aclupa.org/downloads/Chosen300Complaint.pdfds/Chosen300Complaint.pdf I hope that helps, Allen Asch -Original Message- From: Douglas Laycock dlayc...@virginia.edu To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu Sent: Wed, Jul 11, 2012 9:01 am Subject: RE: Ban on Feeding Homeless Jim, is this only a First Amendment claim? Or is there also a Pennsylvania RFRA claim? Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 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 James Edward Maule Sent: Wednesday, July 11, 2012 10:35 AM To: Law Religion issues for Law Academics Subject: Ban on Feeding Homeless For those not picking up on Philadelphia area stories, this might be of interest, perhaps especially to those researching and writing in the area. For some time, religious and other organizations have been feeding homeless people at outdoor sites in Philadelphia. Citing public health and other concerns, the city banned the practice. The religious organizations have challenged the ban, claiming that it violates their (and their members’) First Amendment free exercise rights (“What they will not compromise on, however, is what they described as a God-directed mission to minister to the needs of homeless people where they live - on the parkway.”) Yesterday testimony concluded, and oral argument will now take place. Enforcement of the ban has been stayed pending the litigation. http://www.philly.com/philly/news/breaking/20120710_Nutter__Ban_on_feeding_part_of_plan_to_end_homelessness.html Jim Maule Professor of Law Villanova University School of Law ma...@law.villanova.edumailto:ma...@law.villanova.edu http://vls.law.villanova.edu/prof/maule ___ 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 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.
Circumcision
Hi, Just a couple of general thoughts: 1. Most everyone, including Eugene, admits that parents are empowered within broad limits to make all sorts of major decisions, inlcuding decisions with likely irreversible consequences, on behalf of their minor children. These include decisions about education, religious training (or lack of it), form of community (e.g., living in a small rural town vs. living in Manhattan), forms of cultural exposure or immersion, and etc., etc., etc. I therefore don't see why we should take seriously a bright line between physical interventions such as circumcision and all these other myriad ways that parents (often irreverisbily) influence their children's lives. Indeed, even with respect to the narrow question of sexual gratification, circumcision is probably very low (even if it appears at all) on the list of deeply consequential parental interventions, conscious and unconscious. 2. It also bears emphasis that most everyone, including the non-libertarians among us, admit that adult men should have the right to have themselves circumcised. That is not merely because the adult has the capacity to consent. There are all sorts of things that even consenting adults don't have the right to do. Rather, it is because society doesn't understand circumcision -- and in particular circumcision for religious reasons -- to be the sort of dire act that requires its intervention. A doctor who, at a patient's request, cut off a patient's arm for no good medical reason would likely be charged with a crime or at least stripped of his or her license, and the patient would very likely be institutionalized. No such consequence would follow for an adult circumcision procedure. Put another way, when the Supreme Court in the Paris Adult Theatre case gave us its litany of acts that can be criminalized even among consenting adults -- prostitution, suicide, voluntary self-mutilation, brutalizing 'bare fist' prize fights, and duels -- it clearly did not have adult circumcision in mind as a form of self-mutilation. It seems to me that, in the light of the special role that parents play in the upbringing of their children, the state should bear an added burden when it tries to limit the right of parents to make a decision for their child that it would not keep them from making for themselves themselves. That burden can, I think, be met in at least two circumstances: (1) when the state is trying to prevent an unquestionably grave harm, physical or psychological, to the child, and (2) when the state is making a demonstrably reasonable judgemnt that certain acts are not developmentally appropriate for children even apart from the lack (or for that matter the presence) of consent. The first category clearly doesn't apply here, particularly since even the purely medical evidence about the pros and cons of circumicision remains complicated and controversial. The second category would cover everything from child labor to sexual abuse and so on. But circumcision (need i say more?) is actually more developmentally appropriate for an eight-day old baby than for an adult. Take care. Perry ___ 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: Circumcision
Perry: very helpful. Would you add this as a third category?: if the state demonstrates that many (most) adult men regret their parents' decision to circumcise. It's if and when that ever happens -- not before -- that this will seem like a difficult question. Sent from my iPhone On Jul 11, 2012, at 4:42 PM, Perry Dane d...@crab.rutgers.edu wrote: Hi, Just a couple of general thoughts: 1. Most everyone, including Eugene, admits that parents are empowered within broad limits to make all sorts of major decisions, inlcuding decisions with likely irreversible consequences, on behalf of their minor children. These include decisions about education, religious training (or lack of it), form of community (e.g., living in a small rural town vs. living in Manhattan), forms of cultural exposure or immersion, and etc., etc., etc. I therefore don't see why we should take seriously a bright line between physical interventions such as circumcision and all these other myriad ways that parents (often irreverisbily) influence their children's lives. Indeed, even with respect to the narrow question of sexual gratification, circumcision is probably very low (even if it appears at all) on the list of deeply consequential parental interventions, conscious and unconscious. 2. It also bears emphasis that most everyone, including the non-libertarians among us, admit that adult men should have the right to have themselves circumcised. That is not merely because the adult has the capacity to consent. There are all sorts of things that even consenting adults don't have the right to do. Rather, it is because society doesn't understand circumcision -- and in particular circumcision for religious reasons -- to be the sort of dire act that requires its intervention. A doctor who, at a patient's request, cut off a patient's arm for no good medical reason would likely be charged with a crime or at least stripped of his or her license, and the patient would very likely be institutionalized. No such consequence would follow for an adult circumcision procedure. Put another way, when the Supreme Court in the Paris Adult Theatre case gave us its litany of acts that can be criminalized even among consenting adults -- prostitution, suicide, voluntary! self-mutilation, brutalizing 'bare fist' prize fights, and duels -- it clearly did not have adult circumcision in mind as a form of self-mutilation. It seems to me that, in the light of the special role that parents play in the upbringing of their children, the state should bear an added burden when it tries to limit the right of parents to make a decision for their child that it would not keep them from making for themselves themselves. That burden can, I think, be met in at least two circumstances: (1) when the state is trying to prevent an unquestionably grave harm, physical or psychological, to the child, and (2) when the state is making a demonstrably reasonable judgemnt that certain acts are not developmentally appropriate for children even apart from the lack (or for that matter the presence) of consent. The first category clearly doesn't apply here, particularly since even the purely medical evidence about the pros and cons of circumicision remains complicated and controversial. The second category would cover everything from child labor to sexual abuse and so on. But circumcision (need i say more?) is act! ually more developmentally appropriate for an eight-day old baby than for an adult. Take care. Perry ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ 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: Circumcision
I would think that a distinction between physical alteration of a child's body and other actions would indeed be a sensible one (though not always a dispositive one), and one that is consistent with our general view that physical alteration of another's body is an especially serious intrusion on that person. But let me ask Perry what he thinks of these hypotheticals: (1) California law, as best I can tell, categorically bans all tattooing of under-18-year-olds. Let's go back to a time when tattoos were essentially permanent. Would parents nonetheless have a constitutional right -- just as the exercise of their parental rights -- to tattoo a child, especially one too young to have a view on the subject? Or could the state say that this is a decision that should be left to the person whose body this actually is, at a time when the person can make the decision? (2) Say that parents decide to sterilize their child, perhaps because they believe that either God or Gaea doesn't want more children to be born on the planet, or perhaps because they have some genetic condition that they do not want the child to risk spreading. (Set aside the special case when the child is mentally retarded, unable or unwilling to use contraceptives, and unlikely to ever be able to make an informed decision about sterilization.) Do parents have a constitutional right to do this, or should this be left for the child to decide when he or she becomes an adult? I take it that whatever one might say of sterilization, one wouldn't say that it is necessarily an unquestionably grave harm, physical or psychological; quite a few sane adults choose to be sterilized. Of course it may be an unquestionably grave harm when done without the subject's informed consent; but why wouldn't removal of a functioning and an apparently quite sexually sensitive part of the body likewise be seen as a sufficiently grave harm? (Or is the point simply that it is questionabl[e] whether the removal really does affect sexual sensitivity?) (3) Say that parents have a doctor perform an artificial insemination of their 14-year-old daughter, with the daughter's agreement; assume the daughter is sufficiently sexually mature that the pregnancy poses no medical risk. (There's also no sex involved, so it isn't a statutory rape question.) Perhaps one of the parents is dying and wants the experience of being a grandparent as quickly as possible, or perhaps they take be fruitful and multiply to mean as soon as possible. I take it having a baby, even at 14, is not as such an unquestionably grave harm, physical or psychological; and I don't think the problem here is really that pregnancy is not developmentally appropriate as such. Rather, it seems to me that it's reasonable for the state to say that the decision about whether and when (and with what sperm) to become a parent is a decision that should optimally be made by an adult, or at least by someone older than 14. (While of course the 14-year-old could get pregnant the old-fashioned way, assume the law also prohibits that, by making it statutory rape on the man's part, and by making any adults who facilitate or encourage such an action accessories to statutory rape.) Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Perry Dane Sent: Wednesday, July 11, 2012 1:42 PM To: religionlaw@lists.ucla.edu Subject: Circumcision Hi, Just a couple of general thoughts: 1. Most everyone, including Eugene, admits that parents are empowered within broad limits to make all sorts of major decisions, inlcuding decisions with likely irreversible consequences, on behalf of their minor children. These include decisions about education, religious training (or lack of it), form of community (e.g., living in a small rural town vs. living in Manhattan), forms of cultural exposure or immersion, and etc., etc., etc. I therefore don't see why we should take seriously a bright line between physical interventions such as circumcision and all these other myriad ways that parents (often irreverisbily) influence their children's lives. Indeed, even with respect to the narrow question of sexual gratification, circumcision is probably very low (even if it appears at all) on the list of deeply consequential parental interventions, conscious and unconscious. 2. It also bears emphasis that most everyone, including the non-libertarians among us, admit that adult men should have the right to have themselves circumcised. That is not merely because the adult has the capacity to consent. There are all sorts of things that even consenting adults don't have the right to do. Rather, it is because society doesn't understand circumcision -- and in particular circumcision for
RE: Circumcision
Here is the section of the California Penal Code I believe Eugene is talking about: West's Ann.Cal.Penal Code § 653 [cid:image001.gif@01CD5F9B.395E66B0]§ 653. Tattooing person under age 18 Every person who tattoos or offers to tattoo a person under the age of 18 years is guilty of a misdemeanor. As used in this section, to tattoo means to insert pigment under the surface of the skin of a human being, by pricking with a needle or otherwise, so as to produce an indelible mark or figure visible through the skin. This section is not intended to apply to any act of a licensed practitioner of the healing arts performed in the course of his practice. CREDIT(S) (Added by Stats.1955, c. 1422, p. 2590, § 1.) From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Wednesday, July 11, 2012 3:21 PM To: Law Religion issues for Law Academics Subject: RE: Circumcision I would think that a distinction between physical alteration of a child's body and other actions would indeed be a sensible one (though not always a dispositive one), and one that is consistent with our general view that physical alteration of another's body is an especially serious intrusion on that person. But let me ask Perry what he thinks of these hypotheticals: (1) California law, as best I can tell, categorically bans all tattooing of under-18-year-olds. Let's go back to a time when tattoos were essentially permanent. Would parents nonetheless have a constitutional right -- just as the exercise of their parental rights -- to tattoo a child, especially one too young to have a view on the subject? Or could the state say that this is a decision that should be left to the person whose body this actually is, at a time when the person can make the decision? (2) Say that parents decide to sterilize their child, perhaps because they believe that either God or Gaea doesn't want more children to be born on the planet, or perhaps because they have some genetic condition that they do not want the child to risk spreading. (Set aside the special case when the child is mentally retarded, unable or unwilling to use contraceptives, and unlikely to ever be able to make an informed decision about sterilization.) Do parents have a constitutional right to do this, or should this be left for the child to decide when he or she becomes an adult? I take it that whatever one might say of sterilization, one wouldn't say that it is necessarily an unquestionably grave harm, physical or psychological; quite a few sane adults choose to be sterilized. Of course it may be an unquestionably grave harm when done without the subject's informed consent; but why wouldn't removal of a functioning and an apparently quite sexually sensitive part of the body likewise be seen as a sufficiently grave harm? (Or is the point simply that it is questionabl[e] whether the removal really does affect sexual sensitivity?) (3) Say that parents have a doctor perform an artificial insemination of their 14-year-old daughter, with the daughter's agreement; assume the daughter is sufficiently sexually mature that the pregnancy poses no medical risk. (There's also no sex involved, so it isn't a statutory rape question.) Perhaps one of the parents is dying and wants the experience of being a grandparent as quickly as possible, or perhaps they take be fruitful and multiply to mean as soon as possible. I take it having a baby, even at 14, is not as such an unquestionably grave harm, physical or psychological; and I don't think the problem here is really that pregnancy is not developmentally appropriate as such. Rather, it seems to me that it's reasonable for the state to say that the decision about whether and when (and with what sperm) to become a parent is a decision that should optimally be made by an adult, or at least by someone older than 14. (While of course the 14-year-old could get pregnant the old-fashioned way, assume the law also prohibits that, by making it statutory rape on the man's part, and by making any adults who facilitate or encourage such an action accessories to statutory rape.) Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edumailto:boun...@lists.ucla.edu] On Behalf Of Perry Dane Sent: Wednesday, July 11, 2012 1:42 PM To: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Subject: Circumcision Hi, Just a couple of general thoughts: 1. Most everyone, including Eugene, admits that parents are empowered within broad limits to make all sorts of major decisions, inlcuding decisions with likely irreversible consequences, on behalf of their minor children. These include decisions about education, religious training
