RE: Circumcision

[Eric Rassbach]

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.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 

RE: Circumcision

[Volokh, Eugene]

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

> circu

Re: Circumcision

[Marty Lederman]

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  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
> 
> 
> ___
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Circumcision

[Perry Dane]

Hi,

Just a couple of general thoughts:

1. Most everyone, including Eugene, admits that parents are empowered  
within broad limits to make all sorts of major decisions, inlcuding  
decisions with likely irreversible consequences, on behalf of their  
minor children.  These include decisions about education, religious  
training (or lack of it), form of community (e.g., living in a small  
rural town vs. living in Manhattan), forms of cultural exposure or  
immersion, and etc., etc., etc.


I therefore don't see why we should take seriously a bright line  
between physical interventions such as circumcision and all these  
other myriad ways that parents (often irreverisbily) influence their  
children's lives.  Indeed, even with respect to the narrow question of  
sexual gratification, circumcision is probably very low (even if it  
appears at all) on the list of deeply consequential parental  
interventions, conscious and unconscious.


2. It also bears emphasis that most everyone, including the  
non-libertarians among us, admit that adult men should have the right  
to have themselves circumcised.  That is not merely because the adult  
has the capacity to consent.  There are all sorts of things that even  
"consenting adults" don't have the right to do.  Rather, it is because  
society doesn't understand circumcision -- and in particular  
circumcision for religious reasons -- to be the sort of dire act that  
requires its intervention.  A doctor who, at a patient's request, cut  
off a patient's arm for no good medical reason would likely be charged  
with a crime or at least stripped of his or her license, and the  
patient would very likely be institutionalized.  No such consequence  
would follow for an adult circumcision procedure.  Put another way,  
when the Supreme Court in the Paris Adult Theatre case gave us its  
litany of acts that can be criminalized even among consenting adults  
-- "prostitution, suicide, voluntary self-mutilation, brutalizing  
'bare fist' prize fights, and duels" -- it clearly did not have adult  
circumcision in mind as a form of "self-mutilation."


It seems to me that, in the light of the special role that parents  
play in the upbringing of their children, the state should bear an  
added burden when it tries to limit the right of parents to make a  
decision for their child that it would not keep them from making for  
themselves themselves.  That burden can, I think, be met in at least  
two circumstances:  (1) when the state is trying to prevent an  
unquestionably grave harm, physical or psychological, to the child,  
and (2) when the state is making a demonstrably reasonable judgemnt  
that certain acts are not developmentally appropriate for children  
even apart from the lack (or for that matter the presence) of consent.  
 The first category clearly doesn't apply here, particularly since  
even the purely medical evidence about the pros and cons of  
circumicision remains complicated and controversial.  The second  
category would cover everything from child labor to sexual abuse and  
so on.  But circumcision (need i say more?) is actually more  
developmentally appropriate for an eight-day old baby than for an adult.


Take care.

Perry


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RE: Ban on Feeding Homeless

[James Edward Maule]

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.pdf

I hope that helps,

Allen Asch

-Original Message-
From: Douglas Laycock 
To: 'Law & Religion issues for Law Academics' 
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



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RE: Ban on Feeding Homeless

[James Edward Maule]

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.edu
http://vls.law.villanova.edu/prof/maule


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Re: Ban on Feeding Homeless

[Allen Asch]

OOPS, ACLU complaint at http://www.aclupa.org/downloads/Chosen300Complaint.pdf



-Original Message-
From: Allen Asch 
To: religionlaw 
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 
To: 'Law & Religion issues for Law Academics' 
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
 
 

 
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Re: Ban on Feeding Homeless

[Allen Asch]

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 
To: 'Law & Religion issues for Law Academics' 
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
 
 

 
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RE: Ban on Feeding Homeless

[Michael Masinter]

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 :

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 

Sent: Wednesday, July 11, 2012 10:40 AM
To: Law & Religion issues for Law 

RE: Ban on Feeding Homeless

[Douglas Laycock]

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

 

 

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RE: German circumcision decision

[Eric Rassbach]

The difference between an “agnostic” approach by the agents of the State and 
one that is merely tolerant is about how the court (or other government agent) 
views *itself*: Is the State dealing with decisions where it is not competent 
to exercise its authority, or is it merely deciding not to as a kind of 
indulgence or privilege? Taking an “agnostic” approach negates the 
omnicompetence of the courts and the state in general, and does so at a 
structural level, i.e. it is inherent in the nature of the state for it to be 
incompetent to decide these sorts of issues and thus it has certain structural 
limits. Sometimes of course, courts or other government agents are forced to 
touch on issues within the areas of their incompetence, but they should tread 
as lightly as possible when they do. Hosanna-Tabor can on one view be seen as 
an instance where the courts recognized that idea and operationalized it.

As a counterexample, in the Soviet Union the authorities would dial up or dial 
down religious toleration/persecution depending on external political 
pressures, political infighting, or sometimes just whim. Historically other 
governments that have had a mere toleration approach have always at one point 
or other decided to dispense with the toleration for political reasons of the 
day. (See Roman Empire, post-Reformation England, Spain under Philip, Egypt 
under the Mamluks, etc.)  Adjusting the tolerance level is significantly harder 
to do where the state has recognized its own limits in advance.

That is not to say that the state’s incompetence means that it can’t move 
forcefully to stop child abuse, etc. But when it does so the state still has 
think about what its own structural limits are as well as how its actions 
affect the “legal good” (the German term would be “Rechtsgut”) of religious 
freedom, especially when the facts (scientific and otherwise) are murky. My 
hypo (which I think I can safely accuse you of fighting!) was that the medical 
reasons with respect to circumcision were in equipoise; in that situation I 
think taking into account the legal good of religious freedom makes a lot of 
sense. By contrast, I am not sure that declaring “the autonomy of the child 
demands it” reflects either existing American law or a political philosophy 
that most Americans would agree with. If you think it does, I think you should 
spell out what that political philosophy is.

By the way, I am not sure what the reason for the list of different religious 
beliefs was—was it meant to be a parade of horribles?  I am not sure why it 
should be so horrible—in fact it proves my point that the state has to allow 
room for these beliefs to be discussed, contended over, etc., especially in a 
country as religiously diverse as the United States. If memory serves, South 
Park had an episode where it turned out the Mormons were right and everyone 
else was wrong. My modest claim is that courts have to be open to that sort of 
possibility and thus their own limits, for reasons of both logic and political 
philosophy.



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Friday, July 06, 2012 10:18 AM
To: Law & Religion issues for Law Academics
Subject: 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 – w

More commentary on German circumcision decision

[Eric Rassbach]

New York Times symposium:

http://www.nytimes.com/roomfordebate/2012/07/10/an-age-of-consent-for-circumcision

Lord Sacks (Chief Rabbi of the UK):

http://www.chiefrabbi.org/2012/07/06/the-jerusalem-post-the-europeans-skewed-view-of-circumcision/
___
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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 
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RE: Ban on Feeding Homeless

[James Edward Maule]

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 

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, religious and other org

RE: Ban on Feeding Homeless

[Finkelman, Paul]

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, 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


___
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Anyone can subscribe to the list and read messages that are posted; people can 
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Ban on Feeding Homeless

[James Edward Maule]

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


___
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