RE: New circumcision policy statement from the AAP
Sorry for the delay responding -- I was working on a cert petition all week, and just handed it off to my cite-checker. As list readers might recall, my position was not that circumcision restriction would be justified. Rather, I 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. The AAP decision reinforces my understanding that the health arguments for circumcision are substantial, though we have to recognize, I think, that the matter is still up to debate, with different views being expressed by organizations in different countries. Moreover, the medical understanding may well change with time, as there is more research into the connection with sexual function, more research into the connection with disease, and changes in other disease-related factors -- for instance, if a major medical plus of circumcision is greater protection against some diseases, then the develop of a new and effective immunization against the disease may reduce this marginal plus. As to the philosophy, more in a separate e-mail. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Eric Rassbach Sent: Monday, August 27, 2012 11:36 PM To: Law Religion issues for Law Academics Subject: RE: New circumcision policy statement from the AAP Eugene -- I have to respectfully continue to disagree with your approach to this issue, as well as your assessment of the effect of the AAP decision on your argument: Previously I think you had offered both medical and philosophical/legal reasons for why you felt a circumcision-restrictive position would be justified. At this point your proffered medical reasons no longer serve as support for your legal position. The AAP decision does not say that it is wrong for parents to fail to circumcise their children, but the medical nod (including as to issues of sexual sensation) now goes to circumcision as opposed to non- circumcision. You say that there is disagreement among doctors overseas, but I am not aware of any medical association overseas that has conducted a similar multi-year study to the AAP's and reached a contrary conclusion. And it is a commonplace that circumcision is medically indicated in many parts of the world (e.g. sub-Saharan Africa). There are of course advocates on both sides, including licensed doctors, but the great weight of international medical opinion seems to be on the side of circumcision in both developed and developing countries. And the AAP is I believe the largest (and perhaps the most respected) pediatric medical association in the world. As for future changes, it seems quite speculative for you to say if the medical evidence eventually ends up being contrary when the AAP has moved closer to the circumcision-positive end of the debate after taking into account both the vigorous criticisms of circumcision and and making a multi-year study of the entire medical literature in the area. In short, at this point you bear the burden of overcoming medical opinion that favors circumcision. Thus your previously-offered medical reasons provide no support for your position and you now have a new medical hurdle to overcome. That leaves you with what I refer to as legal/philosophical reasons. Your second line of argument was couched in legal terms, but I think it is really a species of political philosophy. It goes directly to questions about whether individuals and associations of individuals and their rights/privileges/immunities precede the state or whether the state has some sort of defining role in the first instance that regulates all interactions outside of monadic individuals, as indicated by your use of the word delegate. Here is where I pushed back on you in the original discussion and I am
RE: New circumcision policy statement from the AAP
Eugene -- I have to respectfully continue to disagree with your approach to this issue, as well as your assessment of the effect of the AAP decision on your argument: Previously I think you had offered both medical and philosophical/legal reasons for why you felt a circumcision-restrictive position would be justified. At this point your proffered medical reasons no longer serve as support for your legal position. The AAP decision does not say that it is wrong for parents to fail to circumcise their children, but the medical nod (including as to issues of sexual sensation) now goes to circumcision as opposed to non-circumcision. You say that there is disagreement among doctors overseas, but I am not aware of any medical association overseas that has conducted a similar multi-year study to the AAP's and reached a contrary conclusion. And it is a commonplace that circumcision is medically indicated in many parts of the world (e.g. sub-Saharan Africa). There are of course advocates on both sides, including licensed doctors, but the great weight of international medical opinion seems to be on the side of circumcision in both developed and developing countries. And the AAP is I believe the largest (and perhaps the most respected) pediatric medical association in the world. As for future changes, it seems quite speculative for you to say if the medical evidence eventually ends up being contrary when the AAP has moved closer to the circumcision-positive end of the debate after taking into account both the vigorous criticisms of circumcision and and making a multi-year study of the entire medical literature in the area. In short, at this point you bear the burden of overcoming medical opinion that favors circumcision. Thus your previously-offered medical reasons provide no support for your position and you now have a new medical hurdle to overcome. That leaves you with what I refer to as legal/philosophical reasons. Your second line of argument was couched in legal terms, but I think it is really a species of political philosophy. It goes directly to questions about whether individuals and associations of individuals and their rights/privileges/immunities precede the state or whether the state has some sort of defining role in the first instance that regulates all interactions outside of monadic individuals, as indicated by your use of the word delegate. Here is where I pushed back on you in the original discussion and I am pretty sure you never answered: Your position presupposes ideas about the individual and his/her relation to the state that I don't think most Americans, most people on this list, or the American political system agree with. Most people do not agree that the state has powers over children in the first instance and then delegates those powers to parents. History, tradition, and American political and legal philosophy (and most Western analogues) conceive of parents as having pre-existing rights and duties towards their children that the state must justify interference with. Perhaps mainstream libertarian thought now valorizes the individual so much that familial and other associations are an afterthought, but if that is so, it is not mainstream American political philosophy. What does the lack of acceptance for your premises mean, practically speaking, for this discussion? The fact that yours is a generally unaccepted position does not mean that you can't argue it. People can come on the list and argue that religion is the opiate of the masses and therefore the category of religious liberty should be a null set, so why are all of you wasting your time here? But to argue in a way that is convincing and has a claim on the responses of others, you need to back up to premises that are generally accepted by those on the list. Otherwise you aren't making arguments, but assertions dressed up as arguments. You say that the state delegates powers to parents to take care of their children. This idea is foreign to American political philosophy. The Declaration of Independence, the Federalist Papers and much of American political philosophy since (cf. Gettysburg Address, Letter from a Birmingham Jail) reject statist positivism. The state is a very imperfect means of ensuring human freedom, but one we are for now stuck with. Wanting to make it as perfect and well-functioning as possible should never blind us to the fact that it will always be imperfect in some regards and thus subject to the constraints of justice. As a political community, we should be especially wary of interfering with the right of parents to make decisions for their children, because those rights pre-exist our political community and will continue after our political community ceases to exist. At the end of your email, you invoke the best interests of the child but this seems to me to beg the question. Parents who ask mohelim or doctors to circumcise uniformly
European circumcision developments
According to the NYT ( http://www.nytimes.com/2012/08/27/science/benefits-of-circumcision-outweigh-risks-pediatric-group-says.html?_r=1hp ): In Europe, a government ethics committee in Germany last week overruled a court decisionhttp://www.nytimes.com/2012/07/14/world/europe/in-germany-ruling-over-circumcision-sows-anxiety-and-confusion.htmlthat removing a child’s foreskin was “grievous bodily harm” and therefore illegal. The country’s Professional Association of Pediatricians called the ethics committee ruling “a scandal.” A provincial official in Austria has told state-run hospitals in the region to stop performing circumcisions, and the Danish authorities have commissioned a report to investigate whether medical doctors are present during religious circumcision rituals as required. On Fri, Aug 24, 2012 at 7:25 PM, Eric Rassbach erassb...@becketfund.orgwrote: http://www.tabletmag.com/scroll/110165/leading-pediatric-group-endorses-circumcision Eugene -- Would this change your legal analysis with respect to this issue? Eric ___ 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: New circumcision policy statement from the AAP
As I see it, the question for figuring out the right legal rule for circumcision is not simply why some people have the right to control other people's bodies. When assessing the relationship of parent and child from the point of view of the political community, the right question is not why the political community ought to delegate authority to parents to make decisions about their children's bodies. We should, instead, inquire into the circumstances in which the political community is warranted in supplanting parental decisionmaking. This approach is rooted in subsidiarity, and, yes, in some preexisting inherent moral right. How decide which way of approaching the issues and framing the right question is correct? For the virtual community of this list, I will go with history and tradition. Kevin From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene [vol...@law.ucla.edu] Sent: Friday, August 24, 2012 10:01 PM To: Law Religion issues for Law Academics Subject: RE: New circumcision policy statement from the AAP The question is why, in the first place, people should have rights to control not only their own bodies, but also other people’s (their children’s) bodies. I think there are good prudential answers to this question – as someone put it, no government official will love my children like I will, and no government official will know them like I will, and that’s true for the great bulk of parents. But it is prudential factors such as this, and not some preexisting inherent moral right, that is doing the work here, it seems to me. And such questions must indeed be considered by us as a political community, in deciding to what extent we should protect some of our fellow citizens (children) against other fellow citizens (their parents). Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Walsh, Kevin Sent: Friday, August 24, 2012 5:35 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: New circumcision policy statement from the AAP With appreciation to Eric and especially to Eugene for pushing us to think carefully about the right legal rule regarding circumcision, I wonder if focusing on even more fundamental considerations can clarify even more. As I see it, we do not delegate the authority to parents to make decisions of this sort. Rather, we recognize as a political community that there is no general warrant for interfering with the decisions that parents make for their children regarding circumcision. Even if the outcomes will be the same whether one views the issue through the first framing or the second, the two seem worth distinguishing. On Aug 24, 2012, at 7:56 PM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: I don’t think it changes my analysis, since I’ve all along acknowledged that there are plausible medical arguments in favor of circumcision. I’m hesitant to treat the AAP statement as materially changing that, since I take it that there’s some disagreement among pediatric groups – especially internationally -- even now. (The statement does make it even more unlikely that any U.S. jurisdiction would ban infant circumcision – and likely makes it morally and practically unjustifiable for the jurisdiction to make that decision – but any such ban was unlikely even before this statement.) Given this situation, what is the right result? As I mentioned in my July 4 message, http://lists.ucla.edu/pipermail/religionlaw/2012-July/026058.html, 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. (Indeed, Parham v. J.R. states, whether or not correctly, that this is a constitutional mandate.) Circumcision was a reasonable medical decision before the AAP statement – precisely because the matter was uncertain – and it is a reasonable medical decision now; I think parents who make such a medical decision should indeed be free to do that. The interesting question is what happens if the medical evidence eventually ends up being contrary, or if the parents make a decision for nonmedical reasons. I will say that focusing on the views of pediatricians here is good, because it focuses on what I think is the right question: what is in the best interest of the child whose body is being pretty much irreversibly altered, and not what the parents prefer or on what is in the interest of religious communities. Eugene
New circumcision policy statement from the AAP
http://www.tabletmag.com/scroll/110165/leading-pediatric-group-endorses-circumcision Eugene -- Would this change your legal analysis with respect to this issue? Eric ___ 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: New circumcision policy statement from the AAP
I don't think it changes my analysis, since I've all along acknowledged that there are plausible medical arguments in favor of circumcision. I'm hesitant to treat the AAP statement as materially changing that, since I take it that there's some disagreement among pediatric groups - especially internationally -- even now. (The statement does make it even more unlikely that any U.S. jurisdiction would ban infant circumcision - and likely makes it morally and practically unjustifiable for the jurisdiction to make that decision - but any such ban was unlikely even before this statement.) Given this situation, what is the right result? As I mentioned in my July 4 message, http://lists.ucla.edu/pipermail/religionlaw/2012-July/026058.html, 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. (Indeed, Parham v. J.R. states, whether or not correctly, that this is a constitutional mandate.) Circumcision was a reasonable medical decision before the AAP statement - precisely because the matter was uncertain - and it is a reasonable medical decision now; I think parents who make such a medical decision should indeed be free to do that. The interesting question is what happens if the medical evidence eventually ends up being contrary, or if the parents make a decision for nonmedical reasons. I will say that focusing on the views of pediatricians here is good, because it focuses on what I think is the right question: what is in the best interest of the child whose body is being pretty much irreversibly altered, and not what the parents prefer or on what is in the interest of religious communities. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Eric Rassbach Sent: Friday, August 24, 2012 4:26 PM To: Law Religion issues for Law Academics Subject: New circumcision policy statement from the AAP http://www.tabletmag.com/scroll/110165/leading-pediatric-group-endorses-http://www.tabletmag.com/scroll/110165/leading-pediatric-group-endorses-circumcision circumcisionhttp://www.tabletmag.com/scroll/110165/leading-pediatric-group-endorses-circumcision Eugene -- Would this change your legal analysis with respect to this issue? Eric ___ 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-http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw bin/mailman/listinfo/religionlawhttp://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: New circumcision policy statement from the AAP
With appreciation to Eric and especially to Eugene for pushing us to think carefully about the right legal rule regarding circumcision, I wonder if focusing on even more fundamental considerations can clarify even more. As I see it, we do not delegate the authority to parents to make decisions of this sort. Rather, we recognize as a political community that there is no general warrant for interfering with the decisions that parents make for their children regarding circumcision. Even if the outcomes will be the same whether one views the issue through the first framing or the second, the two seem worth distinguishing. On Aug 24, 2012, at 7:56 PM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: I don’t think it changes my analysis, since I’ve all along acknowledged that there are plausible medical arguments in favor of circumcision. I’m hesitant to treat the AAP statement as materially changing that, since I take it that there’s some disagreement among pediatric groups – especially internationally -- even now. (The statement does make it even more unlikely that any U.S. jurisdiction would ban infant circumcision – and likely makes it morally and practically unjustifiable for the jurisdiction to make that decision – but any such ban was unlikely even before this statement.) Given this situation, what is the right result? As I mentioned in my July 4 message, http://lists.ucla.edu/pipermail/religionlaw/2012-July/026058.html, 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. (Indeed, Parham v. J.R. states, whether or not correctly, that this is a constitutional mandate.) Circumcision was a reasonable medical decision before the AAP statement – precisely because the matter was uncertain – and it is a reasonable medical decision now; I think parents who make such a medical decision should indeed be free to do that. The interesting question is what happens if the medical evidence eventually ends up being contrary, or if the parents make a decision for nonmedical reasons. I will say that focusing on the views of pediatricians here is good, because it focuses on what I think is the right question: what is in the best interest of the child whose body is being pretty much irreversibly altered, and not what the parents prefer or on what is in the interest of religious communities. 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 Eric Rassbach Sent: Friday, August 24, 2012 4:26 PM To: Law Religion issues for Law Academics Subject: New circumcision policy statement from the AAP http://www.tabletmag.com/scroll/110165/leading-pediatric-group-endorses-http://www.tabletmag.com/scroll/110165/leading-pediatric-group-endorses-circumcision circumcisionhttp://www.tabletmag.com/scroll/110165/leading-pediatric-group-endorses-circumcision Eugene -- Would this change your legal analysis with respect to this issue? Eric ___ 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-http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw bin/mailman/listinfo/religionlawhttp://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.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
RE: New circumcision policy statement from the AAP
The question is why, in the first place, people should have rights to control not only their own bodies, but also other people's (their children's) bodies. I think there are good prudential answers to this question - as someone put it, no government official will love my children like I will, and no government official will know them like I will, and that's true for the great bulk of parents. But it is prudential factors such as this, and not some preexisting inherent moral right, that is doing the work here, it seems to me. And such questions must indeed be considered by us as a political community, in deciding to what extent we should protect some of our fellow citizens (children) against other fellow citizens (their parents). Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Walsh, Kevin Sent: Friday, August 24, 2012 5:35 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: New circumcision policy statement from the AAP With appreciation to Eric and especially to Eugene for pushing us to think carefully about the right legal rule regarding circumcision, I wonder if focusing on even more fundamental considerations can clarify even more. As I see it, we do not delegate the authority to parents to make decisions of this sort. Rather, we recognize as a political community that there is no general warrant for interfering with the decisions that parents make for their children regarding circumcision. Even if the outcomes will be the same whether one views the issue through the first framing or the second, the two seem worth distinguishing. On Aug 24, 2012, at 7:56 PM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: I don't think it changes my analysis, since I've all along acknowledged that there are plausible medical arguments in favor of circumcision. I'm hesitant to treat the AAP statement as materially changing that, since I take it that there's some disagreement among pediatric groups - especially internationally -- even now. (The statement does make it even more unlikely that any U.S. jurisdiction would ban infant circumcision - and likely makes it morally and practically unjustifiable for the jurisdiction to make that decision - but any such ban was unlikely even before this statement.) Given this situation, what is the right result? As I mentioned in my July 4 message, http://lists.ucla.edu/pipermail/religionlaw/2012-July/026058.html, 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. (Indeed, Parham v. J.R. states, whether or not correctly, that this is a constitutional mandate.) Circumcision was a reasonable medical decision before the AAP statement - precisely because the matter was uncertain - and it is a reasonable medical decision now; I think parents who make such a medical decision should indeed be free to do that. The interesting question is what happens if the medical evidence eventually ends up being contrary, or if the parents make a decision for nonmedical reasons. I will say that focusing on the views of pediatricians here is good, because it focuses on what I think is the right question: what is in the best interest of the child whose body is being pretty much irreversibly altered, and not what the parents prefer or on what is in the interest of religious communities. 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 Eric Rassbach Sent: Friday, August 24, 2012 4:26 PM To: Law Religion issues for Law Academics Subject: New circumcision policy statement from the AAP http://www.tabletmag.com/scroll/110165/leading-pediatric-group-endorses-http://www.tabletmag.com/scroll/110165/leading-pediatric-group-endorses-circumcision circumcisionhttp://www.tabletmag.com/scroll/110165/leading-pediatric-group-endorses-circumcision Eugene -- Would this change your legal analysis with respect to this issue? Eric ___ 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-http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw bin/mailman/listinfo/religionlawhttp://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot
First German circumcision criminal complaint filed
http://www.haaretz.com/jewish-world/jewish-world-news/complaint-filed-against-israeli-rabbi-in-germany-for-carrying-out-circumcision.premium-1.459792 ___ 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.
German parliament passes resolution in favor of protections for religious circumcision
http://www.haaretz.com/jewish-world/jewish-world-news/germany-s-parliament-endorses-resolution-supporting-circumcision-right-1.452297 ___ 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: Mike Dorf on whether the same standards ought to apply in Germany
http://www.dorfonlaw.org/2012/07/when-would-it-no-longer-be-too-soon-for.html On Sun, Jul 1, 2012 at 11:09 AM, Eric Rassbach erassb...@becketfund.orgwrote: I'd be interested to know what the list thinks about the reasoning of the recent decision by a state appeals court in Cologne holding that performing a circumcision constituted the crime of bodily harm (similar to battery). You can find a decent translation of the decision here: http://adam1cor.files.wordpress.com/2012/06/circumcision_eng.doc There is a summary of the case (with the original German language documents) here: http://ukhumanrightsblog.com/2012/06/27/german-court-rules-childs-religious-circumcision-was-unlawful-analysis/ The relevant German law can be found here: http://dejure.org/gesetze/StGB/223.html It states that the crime of bodily harm is punishable with up to 5 years imprisonment. As a result of the ruling, the Jewish Hospital in Berlin has stopped performing circumcisions for religious reasons: http://www.spiegel.de/panorama/gesellschaft/juedisches-krankenhaus-berlin-stoppt-religioese-beschneidungen-a-841804.html ___ ___ 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: Mike Dorf on whether the same standards ought to apply in Germany
The German court said the circumcision was socially inconspicuous, generally accepted and customary in history. It said circumcision was not in the child's best interest because it interfered with his rights of physical integrity and self-determination. Neither the Court nor Prof. Dorf considers whether an infant circumcision might ordinarily be supported by these rights. The law does not forbid voluntary adult circumcision [and I do not read Dorf as supporting such a ban]. No one on this list serve has answered the question about the attitudes of adults who were circumcised as infants. Do they regret that they went through this procedure as infants? Would they prefer to have waited for an adult circumcision? So it is not correct to speak of the right of the infant without considering the infant's right to have the circumcision as well as his right not to. The court really gives no explanation of why circumcision is not in the child's best interest. As to Dorf's suggestion that Germany is a special case, most of Europe was complicit in varying degree. Certainly France and Poland and Austria. Denmark was an exception. Indeed, the history throughout the world of treatment of religious minorities is a powerful reason for the free exercise clause and for taking a closer look at practices that impinge on religious beliefs. Brian K. Landsberg Distinguished Professor and Scholar Pacific McGeorge School of Law 3200 Fifth Avenue, Sacramento CA 95817 916 739-7103 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Wednesday, July 18, 2012 6:00 AM To: Law Religion issues for Law Academics Subject: Circumcision: Mike Dorf on whether the same standards ought to apply in Germany http://www.dorfonlaw.org/2012/07/when-would-it-no-longer-be-too-soon-for.html On Sun, Jul 1, 2012 at 11:09 AM, Eric Rassbach erassb...@becketfund.orgmailto:erassb...@becketfund.org wrote: I'd be interested to know what the list thinks about the reasoning of the recent decision by a state appeals court in Cologne holding that performing a circumcision constituted the crime of bodily harm (similar to battery). You can find a decent translation of the decision here: http://adam1cor.files.wordpress.com/2012/06/circumcision_eng.doc There is a summary of the case (with the original German language documents) here: http://ukhumanrightsblog.com/2012/06/27/german-court-rules-childs-religious-circumcision-was-unlawful-analysis/ The relevant German law can be found here: http://dejure.org/gesetze/StGB/223.html It states that the crime of bodily harm is punishable with up to 5 years imprisonment. As a result of the ruling, the Jewish Hospital in Berlin has stopped performing circumcisions for religious reasons: http://www.spiegel.de/panorama/gesellschaft/juedisches-krankenhaus-berlin-stoppt-religioese-beschneidungen-a-841804.html ___ ___ 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 totally agree that moles and foreskins are not like kidneys, lungs or limbs. I've had three moles removed -- one when I was a child to test if it was cancerous. And twice adult (to test if it was cancerous and another because it was a small nuisance). Nature is not perfect. To keep an imperfection because we were born with it (or later grew on us) may be unwise, irrational or senseless. What about cleft palates? Thank you to Doctors Without Borders for helping so many children. On the point of male circumcision, as an atheist I don't have much sympathy for theology and rituals. However, my parents had me circumcised and my mother was Catholic (at the time) and my father never expressed a religious belief. I don't have a clue why they had me circumcised. Then, 10 years ago, my son was born and I was asked by a nurse or doctor whether my wife and I wanted to have our son circumcised. I said yes solely for aesthetic reasons, as I am not motivated by religion. I have had no second thoughts. In recent years, tho, the issue has come up three times. First, when I was staff attorney at the American Humanist Association. I was contacted by an attorney asking if AHA was willing to participate in a west coast circumcision case. We declined because AHA has member on both sides of the issue. Then, recently, a Georgia attorney/long lost friend on the University of Virginia reunion committee, contacted me about attending my 40th reunion. It turns out that his practice involves a substantial amount of representation related circumcision. He considers circumcision to be mutilation. I haven't been convinced of that position. I suppose that some circumcision procedures go wrong and being litigious society, law suits follow. That's standard operating procedure. But otherwise, I don't see what the fuss is over. Like abortion and other medical procedures (such as removing moles as mentioned above), to me, the matter of circumcision is between the patient (and minor patient's parent(s)) and the doctor -- whether one is motivated for secular or religious reasons. Bob Ritter Jefferson Madison Center for Religious Liberty A Project of the Law Office of Robert V. Ritter Falls Church, VA 703-533-0236 On July 12, 2012 at 6:20 PM Paul Finkelman paul.finkel...@yahoo.com wrote: ok Paul Finkelman President William McKinley Distinguished Professor of Law Albany Law School 80 New Scotland Avenue Albany, NY 12208 518-445-3386 (p) 518-445-3363 (f) paul.finkel...@albanylaw.edu www.paulfinkelman.com From: Perry Dane d...@crab.rutgers.edu To: religionlaw@lists.ucla.edu Sent: Thursday, July 12, 2012 6:07 PM Subject: Circumcision My answers here should also be informed by Marty's sensible third category of likely regret. But I'll limit myself to the two categories I tried to outline in my earlier post. (1) Tattooing: I don't like tattoos. I actually often find myself physically repulsed by them. My own religion forbids them. But if parents had a serious religious reason for tattooing their underage child (note that I'm limiting myself here to religious reasons), I would not want the state to intervene unless the tattooing were of a sort that involved severe pain or was likely to have genuinely harmful long-term physical, psychological, or sociological consequences for the child. (2) Sterliziation: The state could reasonably conclude that forcibly sterilizing a child produces the grave harm of eliminating that child's ability to make future reproductive choices. Here, the issue of competent consent is inextricably tied up with the procedure. Adults who have themselves sterilized are making a reproductive choice; children who are sterilized without their consent are deprived of all future such choices. (3) Pregnancy: It does seem to me that society could reasonably conclude that pregnancy by a 14-year-old is developmentally inappropriate for both physical and psychological reasons. To be sure, we should respect the kid's autonomous rights in this context, at least to the extent of, for example, not allowing either the state or the kid's parents to force her to have an abortion. But, as Eugene emphasizes, that doesn't mean that we do or should excuse the culpable role that others might play in getting the kid pregnant. Obviously, one of the issues in all these comparisons is my sense that circumcision is not as big a deal as some would suggest. Apart from its religious significance for many folks, it does seem to have serious health benefits, including but limited to helping to prevent HIV infection, which is why there's a major campaign in parts of Africa to have as many men as possible sterilized. Moreover, it clearly does not eliminate sexual sensitivity or gratification, or even reduce it to the extent that millions upon millions of circumcised men
Circumcision
Marty, This is sensible. Obviously, these categories bleed into each other (no pun intended). Perry From: Marty Lederman lederman.ma...@gmail.com Date: Wed, 11 Jul 2012 16:49:33 -0400 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. ___ 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
My answers here should also be informed by Marty's sensible third category of likely regret. But I'll limit myself to the two categories I tried to outline in my earlier post. (1) Tattooing: I don't like tattoos. I actually often find myself physically repulsed by them. My own religion forbids them. But if parents had a serious religious reason for tattooing their underage child (note that I'm limiting myself here to religious reasons), I would not want the state to intervene unless the tattooing were of a sort that involved severe pain or was likely to have genuinely harmful long-term physical, psychological, or sociological consequences for the child. (2) Sterliziation: The state could reasonably conclude that forcibly sterilizing a child produces the grave harm of eliminating that child's ability to make future reproductive choices. Here, the issue of competent consent is inextricably tied up with the procedure. Adults who have themselves sterilized are making a reproductive choice; children who are sterilized without their consent are deprived of all future such choices. (3) Pregnancy: It does seem to me that society could reasonably conclude that pregnancy by a 14-year-old is developmentally inappropriate for both physical and psychological reasons. To be sure, we should respect the kid's autonomous rights in this context, at least to the extent of, for example, not allowing either the state or the kid's parents to force her to have an abortion. But, as Eugene emphasizes, that doesn't mean that we do or should excuse the culpable role that others might play in getting the kid pregnant. Obviously, one of the issues in all these comparisons is my sense that circumcision is not as big a deal as some would suggest. Apart from its religious significance for many folks, it does seem to have serious health benefits, including but limited to helping to prevent HIV infection, which is why there's a major campaign in parts of Africa to have as many men as possible sterilized. Moreover, it clearly does not eliminate sexual sensitivity or gratification, or even reduce it to the extent that millions upon millions of circumcised men are heard lamenting their fate. Indeed, the jury is out as to whether it has any real effect on sexual sensitivity or gratification at all. And even if it did lead to some small reduction in sheer physical sensitivity, that would strike me as only dubiously relevant: it assumes that the quality of sex is tied in a purely linear way to the quantity of a particular physical stimulus. Add to all this the point I made earlier: To the extent that the act of circumcision itself is potentially disturbing or physically complicated for the one being circumcised, that's much more true for adults than for eight-day-year-old baby boys. Let me, though, throw out a hypothetical of my own. Say that baby is born with a very large and very visible and, by most lights, unsightly mole on his or her face. The mole poses no health risk to the child. But it is very ugly. The doctors tell the parents that they can remove the mole completely with very little risk to the child. Having the mole removed as an adult would be possible, but somewhat more complicated. In any event, if the procedure were put off, the child would grow up with the mole still on his or her face. The parents decide to have the mole removed (1) for aesthetic reasons and/or (2) because they're concerned that the sense of social identity or psychological health of the child will be impaired if they do not have the mole removed. Should the state intervene in this decision? Should it be entitled to? Would these parents' aesthetic and psychological concerns be more worthy of respect than the religious motives of parents who have their baby boys circumcised? Should it matter that the aesthetic judgment of the mole is culture-specific, or that in some other cultures such a mole would actually be thought to be a mark of great beauty? If a response to this hypo is that circumcision is different from mole-removal because it cuts off a sexually sensitive part of the body, then I can tweak the hypo slightly to assume the mole removal (1) will have a minimal negative consequence such as, say, ever-so-slightly blunting the kid's sense of smell, and (2) it will also have some positive medical consequences, such as reducing the risk of certain sorts of infections, and I can further assume that the parents, taking into account these facts in addition to their aesthetic and psychological concerns, still go ahead with asking the doctors to remove the mole. I'm not sure these tweaks change the equation very much. If, though, the answer is that circumcision is different simply because moles are defects while foreskins are natural parts of the male human body, that reaction would strike me as just physically essentialist. What if the aformentioned mole weren't all that rare, but actually appeared on 5% of babies, but almost all parents in a given culture
Re: Circumcision
ok Paul Finkelman President William McKinley Distinguished Professor of Law Albany Law School 80 New Scotland Avenue Albany, NY 12208 518-445-3386 (p) 518-445-3363 (f) paul.finkel...@albanylaw.edu www.paulfinkelman.com From: Perry Dane d...@crab.rutgers.edu To: religionlaw@lists.ucla.edu Sent: Thursday, July 12, 2012 6:07 PM Subject: Circumcision My answers here should also be informed by Marty's sensible third category of likely regret. But I'll limit myself to the two categories I tried to outline in my earlier post. (1) Tattooing: I don't like tattoos. I actually often find myself physically repulsed by them. My own religion forbids them. But if parents had a serious religious reason for tattooing their underage child (note that I'm limiting myself here to religious reasons), I would not want the state to intervene unless the tattooing were of a sort that involved severe pain or was likely to have genuinely harmful long-term physical, psychological, or sociological consequences for the child. (2) Sterliziation: The state could reasonably conclude that forcibly sterilizing a child produces the grave harm of eliminating that child's ability to make future reproductive choices. Here, the issue of competent consent is inextricably tied up with the procedure. Adults who have themselves sterilized are making a reproductive choice; children who are sterilized without their consent are deprived of all future such choices. (3) Pregnancy: It does seem to me that society could reasonably conclude that pregnancy by a 14-year-old is developmentally inappropriate for both physical and psychological reasons. To be sure, we should respect the kid's autonomous rights in this context, at least to the extent of, for example, not allowing either the state or the kid's parents to force her to have an abortion. But, as Eugene emphasizes, that doesn't mean that we do or should excuse the culpable role that others might play in getting the kid pregnant. Obviously, one of the issues in all these comparisons is my sense that circumcision is not as big a deal as some would suggest. Apart from its religious significance for many folks, it does seem to have serious health benefits, including but limited to helping to prevent HIV infection, which is why there's a major campaign in parts of Africa to have as many men as possible sterilized. Moreover, it clearly does not eliminate sexual sensitivity or gratification, or even reduce it to the extent that millions upon millions of circumcised men are heard lamenting their fate. Indeed, the jury is out as to whether it has any real effect on sexual sensitivity or gratification at all. And even if it did lead to some small reduction in sheer physical sensitivity, that would strike me as only dubiously relevant: it assumes that the quality of sex is tied in a purely linear way to the quantity of a particular physical stimulus. Add to all this the point I made earlier: To the extent that the act of circumcision itself is potentially disturbing or physically complicated for the one being circumcised, that's much more true for adults than for eight-day-year-old baby boys. Let me, though, throw out a hypothetical of my own. Say that baby is born with a very large and very visible and, by most lights, unsightly mole on his or her face. The mole poses no health risk to the child. But it is very ugly. The doctors tell the parents that they can remove the mole completely with very little risk to the child. Having the mole removed as an adult would be possible, but somewhat more complicated. In any event, if the procedure were put off, the child would grow up with the mole still on his or her face. The parents decide to have the mole removed (1) for aesthetic reasons and/or (2) because they're concerned that the sense of social identity or psychological health of the child will be impaired if they do not have the mole removed. Should the state intervene in this decision? Should it be entitled to? Would these parents' aesthetic and psychological concerns be more worthy of respect than the religious motives of parents who have their baby boys circumcised? Should it matter that the aesthetic judgment of the mole is culture-specific, or that in some other cultures such a mole would actually be thought to be a mark of great beauty? If a response to this hypo is that circumcision is different from mole-removal because it cuts off a sexually sensitive part of the body, then I can tweak the hypo slightly to assume the mole removal (1) will have a minimal negative consequence such as, say, ever-so-slightly blunting the kid's sense of smell, and (2) it will also have some positive medical consequences, such as reducing the risk of certain sorts of infections, and I can further assume that the parents, taking into account
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
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
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: 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: German circumcision decision
OK, let's turn this around again. I don't follow Eugene's reasoning here. If I do for religious reasons what anyone else could do for secular reasons, why should this be penalized? Seems like a fundamental equal-treatment issue. On the second paragraph, Eugene is correct that my point went to institutional competence and legitimacy. I have little faith in courts to divine a social or moral consensus that isn't heavily biased in favor of whatever the upper middle class (the category into which most judges fall) thinks it knows. In the absence of an affirmative policy decision by elected representatives, therefore, the rule of decision that imposes the least harm *to the polity* ought to be that tradition carries prima facie probative weight. This is especially true in criminal cases, where the standard of statutory interpretation requires that crimes be clearly specified--none of this do no harm generalizing! On Wed, Jul 4, 2012 at 4:24 PM, Volokh, Eugene vol...@law.ucla.edu wrote: 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 defer to a parent’s decision, even one we doubt, when it involves a tradeoff of one medical risk for another medical risk. But I don’t see why we should defer to such a decision when the parent doesn’t even purport to be making a medical judgment, but is just deciding based on the judgment that “God wants me to do this” or “I don’t want to give more profits to Big Pharma.” That’s not weighing religious motivation negatively because it’s religious – that’s weighing a *nonmedical *motivation negatively compared to a medical motivation because the only justification for letting me order someone to alter not my body but my son’s body is the need for *medical* judgment.*** * ** ** This leaves two different arguments. One is “letting people do what they have always done,” which strikes me as weak for the reasons I gave in part of my response to Paul Finkelman’s post – especially give the longstanding tradition of allowing not just parental decisions about surgery for children but also parental decisions about beating children, a tradition that I do not think ought to be given much legal weight. The second, which I think is intriguing and might be correct, is to have such decisions be made by legislatures directly, rather than by judges interpreting general human rights norms. I’d love to hear more thoughts on this institutional question. ** ** Eugene ** ** *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Vance R. Koven *Sent:* Monday, July 02, 2012 10:58 AM *To:* Law Religion issues for Law Academics *Subject:* Re: German circumcision decision ** ** But isn't saying that you would accept the argument that refusing medical treatment because it might do more harm than good the same as saying the medical treatment might not be necessary? And if in any particular situation you would accept the argument that doing or not doing something would be valid if you said it was for medical reasons, and oh by the way to do otherwise would be against my religion (and there is independent evidence that the medical argument is genuine), then why condemn someone who neglects to mention the medical rationale? The medical evidence goes to the question of whether, objectively speaking, there is a likelihood of harm. If the medical evidence is to the contrary, or if the matter is subject to substantial debate, the religious motivation shouldn't be weighted negatively, and doing so is simply a point of religious bias rather than objective analysis. This is why I, like Mark Scarberry, would urge a legal heuristic that courts should be biased in favor of letting people do what they have always done, unless a democratically accountable legislature has clearly indicated the contrary (at which point you could begin analyzing whether the legislature has infringed someone's fundamental rights). Nobody in post-war Germany has ever prosecuted a doctor or parent (never mind a religious official) for performing or permitting a male circumcision, which ought to be evidence that the generally
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 control our approach to this -- 1) all parents/guardians have the same rights and face the same limits (religious motivation adds or subtracts nothing to parental rights); 2) the state has the burden of proof that a practice is abusive. So, when reasonable people can and do differ about the social, medical, or hygienic benefits of a practice --as is obviously the case with infant male circumcision -- the state cannot meet its burden of showing the practice is abusive. The presence or absence of religious motivation for the practice may explain parents' behavior, or a faith community's concerns, but -- when the rights of children are at stake - the state should be constitutionally indifferent to that motivation. If the practice is abusive, the state should make its best efforts to put an end to it; if it cannot be shown to be abusive, everyone is free to engage in it. And liberty -- not religious liberty, but liberty generally -- resides in the initial allocation of power to parents/guardians, and the assignment of the burden of proof of abusiveness to the authorities. On Thu, Jul 5, 2012 at 10:08 AM, Vance R. Koven vrko...@gmail.com wrote: OK, let's turn this around again. I don't follow Eugene's reasoning here. If I do for religious reasons what anyone else could do for secular reasons, why should this be penalized? Seems like a fundamental equal-treatment issue. On the second paragraph, Eugene is correct that my point went to institutional competence and legitimacy. I have little faith in courts to divine a social or moral consensus that isn't heavily biased in favor of whatever the upper middle class (the category into which most judges fall) thinks it knows. In the absence of an affirmative policy decision by elected representatives, therefore, the rule of decision that imposes the least harm *to the polity* ought to be that tradition carries prima facie probative weight. This is especially true in criminal cases, where the standard of statutory interpretation requires that crimes be clearly specified--none of this do no harm generalizing! On Wed, Jul 4, 2012 at 4:24 PM, Volokh, Eugene vol...@law.ucla.eduwrote: 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 defer to a parent’s decision, even one we doubt, when it involves a tradeoff of one medical risk for another medical risk. But I don’t see why we should defer to such a decision when the parent doesn’t even purport to be making a medical judgment, but is just deciding based on the judgment that “God wants me to do this” or “I don’t want to give more profits to Big Pharma.” That’s not weighing religious motivation negatively because it’s religious – that’s weighing a *nonmedical *motivation negatively compared to a medical motivation because the only justification for letting me
Re: German circumcision decision
Chip writes that under our tradition (without regard to religious liberty), the state has the burden of proof that a practice is abusive. So, when reasonable people can and do differ about the social, medical, or hygienic benefits of a practice --as is obviously the case with infant male circumcision -- the state cannot meet its burden of showing the practice is abusive. I wonder whether this fairly describes our tradition -- let alone any constitutional requirement. Chip's suggestion is not just that the state has the burden of proof by a preponderance, but that the state must demonstrate in some much more compelling way that the practice is, on the whole, harmful -- presumably such that reasonable people will no longer differ on the question. But as long as it's a subject of reasonable disputation, we should or must defer to parents. Is this true, as a descriptive matter of how our law has progressed? Is there any case law to support it? (Not rhetorical questions -- I genuinely don't know.) What makes this case appear easy to me is that (i) this is the rare case where almost (but not quite all) of the purported harms and benefits will occur only in adulthood; (ii) this is also a case in which the decision can't or shouldn't be postponed until adulthood; where (iii) as far as I know, the majority of men who have been circumsized -- even for * nonreligious* reasons -- are at least neutral, if not pleased, about the decision their parents made (in contrast with, e.g., women who have been subject to genital mutilation); and where (iv) there's no consensus yet of severe health or other negative consequences. I'm not sure what this all means for *constitutional* doctrine; but it sure does lead me to think that a legislature (or court) ought not intervene as long as these four things are true. If, on the other hand, many or the majority of men were to become outraged about the decisions their parents made several decades earlier, would it really be the case then that the state should continue to defer to parents until there's a greater societal consensus -- indeed, until reasonable people no longer disagree? On Thu, Jul 5, 2012 at 10:37 AM, Ira Lupu icl...@law.gwu.edu wrote: 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 control our approach to this -- 1) all parents/guardians have the same rights and face the same limits (religious motivation adds or subtracts nothing to parental rights); 2) the state has the burden of proof that a practice is abusive. So, when reasonable people can and do differ about the social, medical, or hygienic benefits of a practice --as is obviously the case with infant male circumcision -- the state cannot meet its burden of showing the practice is abusive. The presence or absence of religious motivation for the practice may explain parents' behavior, or a faith community's concerns, but -- when the rights of children are at stake - the state should be constitutionally indifferent to that motivation. If the practice is abusive, the state should make its best efforts to put an end to it; if it cannot be shown to be abusive, everyone is free to engage in it. And liberty -- not religious liberty, but liberty generally -- resides in the initial allocation of power to parents/guardians, and the assignment of the burden of proof of abusiveness to the authorities. On Thu, Jul 5, 2012 at 10:08 AM, Vance R. Koven vrko...@gmail.com wrote: OK, let's turn this around again. I don't follow Eugene's reasoning here. If I do for religious reasons what anyone else could do for secular reasons, why should
Circumcision of 12-year-olds
The quote from Boldt rather strikingly focuses on how forcing a 12-year-old to be circumcised is bad for the 12-year-old because it could seriously affect the relationship between [him] and father. Is that really all there is to it? Might it not also be bad because a 12-year-old shouldn't be forced to lose a part of his body that he doesn't want to lose, at least absent some pretty significant medical reason? More broadly, say that the issue arose not in a child custody case, but within an intact family. Should the law allow parents to circumcise their 12-year-old son against his expressed will -- as opposed to circumcising an infant who can't express a will? Or should that be seen as child abuse, with possible criminal or civil liability for the parents or the mohel? Eugene Eric Rassbach writes: I would add to Chip's point that almost all of these cases would arise in state court rather than federal court since they would for the most part deal with domestic relations issues or state law tort claims. See for example, In re Marriage of Boldt, 344 Or. 1, 176 P.3d 388 (Ore. 2008): Although the parties and amici have presented extensive material regarding circumcision, we do not need to *12 decide in this case **394 which side has presented a more persuasive case regarding the medical risks or benefits of male circumcision. We conclude that, although circumcision is an invasive medical procedure that results in permanent physical alteration of a body part and has attendant medical risks, the decision to have a male child circumcised for medical or religious reasons is one that is commonly and historically made by parents in the United States. We also conclude that the decision to circumcise a male child is one that generally falls within a custodial parent's authority, unfettered by a noncustodial parent's concerns or beliefs-medical, religious or otherwise. Were mother's concerns or beliefs regarding circumcision all that were asserted in the affidavits in this case, we would conclude that mother did not carry her initial statutory burden to demonstrate a sufficient change in circumstances demonstrating father's inability to properly care for M. However, in this case, mother has averred in her affidavit that M objects to the circumcision.FN8 In our view, at age 12, M's attitude regarding circumcision, though not conclusive of the custody issue presented here, is a fact necessary to the determination of whether mother has asserted a colorable claim of a change of circumstances sufficient to warrant a hearing concerning whether to change custody. That is so because forcing M at age 12 to undergo the circumcision against his will could seriously affect the relationship between M and father, and could have a pronounced effect on father's capability to properly care for M. See Greisamer, 276 Or. at 400, 555 P.2d 28 (illustrating proposition). Thus, if mother's assertions are verified the trial court would be entitled to reconsider custody. As to that inquiry, however, we think that no decision should be made without some assessment of M's true state of mind. That conclusion dictates the outcome here. ___ 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
Eugene -- 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.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 defer to a parent’s decision, even one we doubt, when it involves a tradeoff of one medical risk for another medical risk. But I don’t see why we should defer to such a decision when the parent doesn’t even purport to be making a medical judgment, but is just deciding based on the judgment that “God wants me to do this” or “I don’t want to give more profits to Big Pharma.” That’s not weighing religious motivation negatively because it’s religious – that’s weighing a nonmedical motivation negatively compared to a medical motivation because the only justification for letting me order someone to alter not my body but my son’s body is the need for medical judgment. This leaves two different arguments. One is “letting people do what they have always done,” which strikes me as weak for the reasons I gave in part of my response to Paul Finkelman’s post – especially give the longstanding tradition of allowing not just parental decisions about surgery for children but also parental decisions about beating children, a tradition that I do not think ought to be given much legal weight. The second, which I think is intriguing and might be correct, is to have such decisions be made by legislatures directly, rather than by judges interpreting general human rights norms. I’d love to hear more thoughts on this institutional question. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Vance R. Koven Sent: Monday, July 02, 2012 10:58 AM To: Law Religion issues for Law Academics Subject: Re: German circumcision decision But isn't saying that you would accept the argument that refusing medical treatment because it might do more harm than good the same as saying the medical treatment might not be necessary? And if in any particular situation you would accept the argument that doing or not doing something would be valid if you said it was for medical reasons, and oh by the way to do otherwise would be against my religion (and there is independent evidence that the medical argument is genuine), then why condemn someone who neglects
Re: German circumcision decision
If that is correct, neither the child nor the parent will be able to opt to circumcise the boy until he turns 18. Yet, as a prior post pointed out, most males who wish to be circumcised for religious reasons would rather that the procedure occur in infancy. Accurately predicting what the child will prefer when he becomes an adult is iffy at best. The state is less able than the parents to make this prediction. Perhaps that is why government has generally deferred to parental judgment in non-abusive homes. Sent from my iPhone On Jul 4, 2012, at 1:26 PM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: 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 defer to a parent’s decision, even one we doubt, when it involves a tradeoff of one medical risk for another medical risk. But I don’t see why we should defer to such a decision when the parent doesn’t even purport to be making a medical judgment, but is just deciding based on the judgment that “God wants me to do this” or “I don’t want to give more profits to Big Pharma.” That’s not weighing religious motivation negatively because it’s religious – that’s weighing a nonmedical motivation negatively compared to a medical motivation because the only justification for letting me order someone to alter not my body but my son’s body is the need for medical judgment. This leaves two different arguments. One is “letting people do what they have always done,” which strikes me as weak for the reasons I gave in part of my response to Paul Finkelman’s post – especially give the longstanding tradition of allowing not just parental decisions about surgery for children but also parental decisions about beating children, a tradition that I do not think ought to be given much legal weight. The second, which I think is intriguing and might be correct, is to have such decisions be made by legislatures directly, rather than by judges interpreting general human rights norms. I’d love to hear more thoughts on this institutional question. Eugene From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Vance R. Koven Sent: Monday, July 02, 2012 10:58 AM To: Law Religion issues for Law Academics Subject: Re: German circumcision decision But isn't saying that you would accept the argument that refusing medical treatment because it might do more harm than good the same as saying the medical treatment might not be necessary? And if in any particular situation you would accept the argument that doing or not doing something would be valid if you said it was for medical reasons, and oh by the way to do otherwise would be against my religion (and there is independent evidence that the medical argument is genuine), then why condemn someone who neglects to mention the medical rationale? The medical evidence goes to the question of whether, objectively speaking, there is a likelihood of harm. If the medical evidence is to the contrary, or if the matter is subject to substantial debate, the religious motivation shouldn't be weighted negatively, and doing so is simply a point of religious bias rather than objective analysis. This is why I, like Mark Scarberry, would urge a legal heuristic that courts should be biased in favor of letting people do what they have always done, unless a democratically accountable legislature has clearly indicated the contrary (at which point you could begin analyzing whether the legislature has infringed someone's fundamental rights). Nobody in post-war Germany has ever prosecuted a doctor or parent (never mind a religious official) for performing or permitting a male circumcision, which ought to be evidence that the generally phrased criminal legislation didn't cover it. The judge's rather high-handed and arbitrary statements that in Central Europe there are no medical arguments in favor of circumcision do indicate a mindset that just wanted to take a slap at traditional religious communities. It's just more legislating from the bench (or the post office). Vance On Sun, Jul 1, 2012 at 5:22 PM, Volokh, Eugene mailto:vol...@law.ucla.eduvol
Re: German circumcision decision
Alternatively, one might argue that this is a medical decision for where there is scant evidence that it causes any harm at all (unlike say female mutilation) and there is some medical evidence that it is valuable. In that sense it goes back to the parent to make the decisions. Again, as I noted earlier, there are many cultures where parents have the ears of infant girls pierced -- this too can lead to infection but there is no medical value. There are cultures where children -- sometimes quite young -- have tattoos and other markings put on them. Again, not medical value, perhaps no long term harm but certainly not something that can be undone. Many American hospitals routinely circumcise boy babies without out any religious purpose. It is a parental option in most places. And the basis is that it is medically not a bad thing to do; or that it is medically a good thing to do. It is not clear, but it seems that the German decision would ban this practice, but maybe not. Maybe it is only banned as religious practice, and then it looks a lot like the Hialeah statute on animal slaughter that the court correctly (and I believe unanimously) struck down. (I am writing form Beijing at the moment so it is not easy to look these things up). It is hard to see the decision in any other light than a objection to religious/cultural practice by two postal workers and a local judge. One wonders how much medical, scientific, historical, sociological, and other expert evidence was put before the court? My guess it not very much if any at all. It smacks of seat-of-the pants we don't like them and we don't like what they do and so we are going to rule against them. Does anyone know how these courts are chosen:? Do these Courts ever include any of the members of Germany's huge Turkish population -- some of whom are now 4th generation born in Germany but still not given citizenship? As opposed to many people in the former Soviet Union of German ancestry who got instant citizenship when the migrated? It seems hard to separate this case from the politics of immigration, nationality, and citizenship in Germany. Paul Finkelman President William McKinley Distinguished Professor of Law Albany Law School 80 New Scotland Avenue Albany, NY 12208 518-445-3386 (p) 518-445-3363 (f) paul.finkel...@albanylaw.edu www.paulfinkelman.com From: Volokh, Eugene vol...@law.ucla.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Wednesday, July 4, 2012 4:24 PM 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 defer to a parent’s decision, even one we doubt, when it involves a tradeoff of one medical risk for another medical risk. But I don’t see why we should defer to such a decision when the parent doesn’t even purport to be making a medical judgment, but is just deciding based on the judgment that “God wants me to do this” or “I don’t want to give more profits to Big Pharma.” That’s not weighing religious motivation negatively because it’s religious – that’s weighing a nonmedical motivation negatively compared to a medical motivation because the only justification for letting me order someone to alter not my body but my son’s body is the need for medical judgment. This leaves two different arguments. One is “letting people do what they have always done,” which strikes me as weak for the reasons I gave in part of my response to Paul Finkelman’s post – especially give the longstanding tradition of allowing not just parental decisions about surgery for children but also parental decisions about beating children, a tradition that I do not think ought to be given much legal weight. The second, which I think is intriguing and might be correct, is to have such decisions be made by legislatures directly, rather than by judges interpreting general human rights norms. I’d love to hear more thoughts on this institutional question. Eugene From:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Vance R. Koven Sent: Monday, July 02, 2012 10:58 AM To: Law Religion issues for Law
Re: German circumcision decision
It is always good to read things before commenting on them. The court ruling was indeed in a Muslim case. In Germany there is a law protecting animals (Tierschutzgesetz) but there is an exception for Halal slaughtering. Religious freedom is a fundamental right under the German constitution (Art. 4 Grundgesetz). It would perhaps be wise to read the German constitution and the relevant laws before speculating about German history and courts that are biassed and attack religious minorites. I am a bit disappointed about the level of this debate. In the end we are talking about a liberal democracy, aren't we? Manfred Brocker On Sun, July 1, 2012 6:30 pm, Paul Finkelman wrote: I posted this before I had a chance to read the decision, which I now see is about a Muslim case; that undermines some of my arguments, but not all of them. The politics may be less about Jews than Muslims but the issue remains the same -- a fundamental attack on religious minorities. I wonder, for example, whether the next step will be a ban on Kosher or Halal slaughtering on the grounds that it is cruel to animals? The case does not seem to be based on the place of the circumcision. That is one could imagine a law that requires it to be done in a hospital. But this does not appear to be the issue here.  Paul Finkelman President William McKinley Distinguished Professor of Law Albany Law School 80 New Scotland Avenue Albany, NY 12208 518-445-3386 (p) 518-445-3363 (f) paul.finkel...@albanylaw.edu www.paulfinkelman.com From: Paul Finkelman paul.finkel...@yahoo.com To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Sunday, July 1, 2012 12:21 PM Subject: Re: German circumcision decision Are they also banning parents from piercing the ears of children? In many cultures it is common to see infant girls with pierced ears.  Does the ban extend to pierced ears before age 18? And then there is body piercing before age 18. Is that being banned? Has the Court banned tattoos for people under 18? And has this ban spread to Muslim male children, who are circumcised at age 7, 10 or slightly later depending on the sect. The fact is, given Germany's history of how it has dealt with Jews, is is not illegitimate to wonder what the Court is thinking.  Germany has one of the fastest growing Jewish populations in the world -- mostly through immigration. This decision, if enforced all over the country, would slow down or stop that population growth. One might at least ponder why this case has come to the Germany court, and not one involving piercing, tattoos, or Muslim circumcision.  Paul Finkelman President William McKinley Distinguished Professor of Law Albany Law School 80 New Scotland Avenue Albany, NY 12208 518-445-3386 (p) 518-445-3363 (f) paul.finkel...@albanylaw.edu www.paulfinkelman.com From: Volokh, Eugene vol...@law.ucla.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Sunday, July 1, 2012 11:56 AM Subject: RE: German circumcision decision                Any chance we could have some helpful analysis of the decision, rather than one-liners? The question of the degree to which parents should be able to permanently alter their childrenâs bodies â for religious reasons or otherwise â is not, it seems to me, one that has a completely obvious answer one way or the other. There may indeed be one correct answer that can be demonstrated, but such demonstration requires argument rather than assertion.                 Eugene ___ 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.___ 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
Re: German circumcision decision
But isn't saying that you would accept the argument that refusing medical treatment because it might do more harm than good the same as saying the medical treatment might not be necessary? And if in any particular situation you would accept the argument that doing or not doing something would be valid if you said it was for medical reasons, and oh by the way to do otherwise would be against my religion (and there is independent evidence that the medical argument is genuine), then why condemn someone who neglects to mention the medical rationale? The medical evidence goes to the question of whether, objectively speaking, there is a likelihood of harm. If the medical evidence is to the contrary, or if the matter is subject to substantial debate, the religious motivation shouldn't be weighted negatively, and doing so is simply a point of religious bias rather than objective analysis. This is why I, like Mark Scarberry, would urge a legal heuristic that courts should be biased in favor of letting people do what they have always done, unless a democratically accountable legislature has clearly indicated the contrary (at which point you could begin analyzing whether the legislature has infringed someone's fundamental rights). Nobody in post-war Germany has ever prosecuted a doctor or parent (never mind a religious official) for performing or permitting a male circumcision, which ought to be evidence that the generally phrased criminal legislation didn't cover it. The judge's rather high-handed and arbitrary statements that in Central Europe there are no medical arguments in favor of circumcision do indicate a mindset that just wanted to take a slap at traditional religious communities. It's just more legislating from the bench (or the post office). Vance On Sun, Jul 1, 2012 at 5:22 PM, Volokh, Eugene vol...@law.ucla.edu wrote: I don’t see why it’s “religio-cultural[ly] insensitiv[e]” to say that a decision made for medical reasons is permissible but a decision made for religious reasons is not; or if it is religio-culturally insensitive, I would be proudly religio-culturally insensitive in many instances. (This instance I do find hard, for many reasons, but not for the reasons described below.) For instance, I don’t see why we should treat (a) a parent’s refusing necessary medical treatment to a child because there’s a plausible argument that the treatment will do more harm than good the same as (b) a parent’s refusing such treatment without any such explanation but simply because he concludes “we should pray instead of performing the medical procedure, and God will take care of things.” Perhaps it’s too hard to tease apart such rationales in some situations, but as a general matter I would think that courts might quite rightly reject rationale (b) even if they accept rationale (a). ** ** Now of course here the situation is not identical – indeed, as I’ve argued before, male circumcision is not identical to pretty much any other procedure – and perhaps the situation should be different when we’re not talking about refusal of necessary medical treatment but rather the performance of a medical procedure for which the practical effect (with regard to possible loss of sexual sensation) is unknown. But the point is that the mere fact that a decision might permissibly be made for plausible medical reasons doesn’t mean that it might permissibly be made for religious reasons (or other nonmedical reasons). ** ** Eugene ** ** *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Vance R. Koven *Sent:* Sunday, July 01, 2012 9:38 AM *To:* Law Religion issues for Law Academics *Subject:* Re: German circumcision decision ** ** Isn't there still a substantial body of medical opinion--perhaps not as prevalent as in decades past--that recommends circumcision as a preventive health measure? If the issue is the lack of consent from the subject of the operation, this certainly affects more than just religious observance, and more than just this particular operation. And if the decision hinges specifically on the fact that the motivation (if that can ever be clear) is primarily religious, that certainly smacks of religio-cultural insensitivity, to put it mildly. Vance On Sun, Jul 1, 2012 at 12:21 PM, Paul Finkelman paul.finkel...@yahoo.com wrote: Are they also banning parents from piercing the ears of children? In many cultures it is common to see infant girls with pierced ears. Does the ban extend to pierced ears before age 18? And then there is body piercing before age 18. Is that being banned? Has the Court banned tattoos for people under 18? ** ** And has this ban spread to Muslim male children, who are circumcised at age 7, 10 or slightly later depending on the sect. ** ** The fact is, given Germany's history of how
Re: German circumcision decision
100% correct. On Jul 1, 2012, at 11:09 AM, Eric Rassbach wrote: I'd be interested to know what the list thinks about the reasoning of the recent decision by a state appeals court in Cologne holding that performing a circumcision constituted the crime of bodily harm (similar to battery). You can find a decent translation of the decision here: http://adam1cor.files.wordpress.com/2012/06/circumcision_eng.doc There is a summary of the case (with the original German language documents) here: http://ukhumanrightsblog.com/2012/06/27/german-court-rules-childs-religious-circumcision-was-unlawful-analysis/ The relevant German law can be found here: http://dejure.org/gesetze/StGB/223.html It states that the crime of bodily harm is punishable with up to 5 years imprisonment. As a result of the ruling, the Jewish Hospital in Berlin has stopped performing circumcisions for religious reasons: http://www.spiegel.de/panorama/gesellschaft/juedisches-krankenhaus-berlin-stoppt-religioese-beschneidungen-a-841804.html ___ 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. -- Prof. Steven D. Jamar vox: 202-806-8017 Associate Director, Institute for Intellectual Property and Social Justice http://iipsj.org Howard University School of Law fax: 202-806-8567 http://iipsj.com/SDJ/ Any intelligent fool can make things bigger, more complex, and more violent. It takes a touch of genius - and a lot of courage - to move in the opposite direction. Albert Einstein ___ 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
Any chance we could have some helpful analysis of the decision, rather than one-liners? The question of the degree to which parents should be able to permanently alter their children's bodies - for religious reasons or otherwise - is not, it seems to me, one that has a completely obvious answer one way or the other. There may indeed be one correct answer that can be demonstrated, but such demonstration requires argument rather than assertion. Eugene ___ 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
Are they also banning parents from piercing the ears of children? In many cultures it is common to see infant girls with pierced ears. Does the ban extend to pierced ears before age 18? And then there is body piercing before age 18. Is that being banned? Has the Court banned tattoos for people under 18? And has this ban spread to Muslim male children, who are circumcised at age 7, 10 or slightly later depending on the sect. The fact is, given Germany's history of how it has dealt with Jews, is is not illegitimate to wonder what the Court is thinking. Germany has one of the fastest growing Jewish populations in the world -- mostly through immigration. This decision, if enforced all over the country, would slow down or stop that population growth. One might at least ponder why this case has come to the Germany court, and not one involving piercing, tattoos, or Muslim circumcision. Paul Finkelman President William McKinley Distinguished Professor of Law Albany Law School 80 New Scotland Avenue Albany, NY 12208 518-445-3386 (p) 518-445-3363 (f) paul.finkel...@albanylaw.edu www.paulfinkelman.com From: Volokh, Eugene vol...@law.ucla.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Sunday, July 1, 2012 11:56 AM Subject: RE: German circumcision decision Any chance we could have some helpful analysis of the decision, rather than one-liners? The question of the degree to which parents should be able to permanently alter their children’s bodies – for religious reasons or otherwise – is not, it seems to me, one that has a completely obvious answer one way or the other. There may indeed be one correct answer that can be demonstrated, but such demonstration requires argument rather than assertion. Eugene ___ 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: German circumcision decision
Actually, I don't think Paul's comment is a one-liner -- the fact that this decision comes from Germany is surely the most striking and disconcerting -- and important -- thing about it. As far as analysis is concerned, well, how could there be a correct answer? I think we can all agree that such a law imposes a very substantial burden on the religious exercise of most of those affected. Is there a governmental interest sufficient to overcome this burden, as either a legal or a moral matter? Well, that depends, of course, on how the society in question measures the harms to the infant boys -- harms to health, dignity, autonomy, etc. And that in turn depends on ever-shifting evidence and evolving moral sensibilities. If this were a case in which many or most of the boys in question later regretted the decisions of their parents, or where there were an undeniable, severe harm in terms of health or sexual well-being -- as is the case with respect to, e.g., female genital mutilation -- then the balancing would be fairly obvious. But in this case, not only do most men not mind that their parents made that decision (I assume that's also true in Germany -- but perhaps not), but in addition, many or most of those men who prefer to be circumcised are actually grateful that the decision was made at birth, since the procedure is much riskier and more painful (or so I'm told!) when performed on an adult. Surely that unusual set of facts makes this case much different from, e.g., the FGM and denial-of-lifesaving-medical treatment cases. On the other hand, the harm to the men (presumably a minority -- but again, perhaps things are different in Germany) who regret their parents' decision is irreversable. That's what makes the case so difficult. On Sun, Jul 1, 2012 at 11:56 AM, Volokh, Eugene vol...@law.ucla.edu wrote: Any chance we could have some helpful analysis of the decision, rather than one-liners? The question of the degree to which parents should be able to permanently alter their children’s bodies – for religious reasons or otherwise – is not, it seems to me, one that has a completely obvious answer one way or the other. There may indeed be one correct answer that can be demonstrated, but such demonstration requires argument rather than assertion. ** ** Eugene ___ 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: German circumcision decision
I posted this before I had a chance to read the decision, which I now see is about a Muslim case; that undermines some of my arguments, but not all of them. The politics may be less about Jews than Muslims but the issue remains the same -- a fundamental attack on religious minorities. I wonder, for example, whether the next step will be a ban on Kosher or Halal slaughtering on the grounds that it is cruel to animals? The case does not seem to be based on the place of the circumcision. That is one could imagine a law that requires it to be done in a hospital. But this does not appear to be the issue here. Paul Finkelman President William McKinley Distinguished Professor of Law Albany Law School 80 New Scotland Avenue Albany, NY 12208 518-445-3386 (p) 518-445-3363 (f) paul.finkel...@albanylaw.edu www.paulfinkelman.com From: Paul Finkelman paul.finkel...@yahoo.com To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Sunday, July 1, 2012 12:21 PM Subject: Re: German circumcision decision Are they also banning parents from piercing the ears of children? In many cultures it is common to see infant girls with pierced ears. Does the ban extend to pierced ears before age 18? And then there is body piercing before age 18. Is that being banned? Has the Court banned tattoos for people under 18? And has this ban spread to Muslim male children, who are circumcised at age 7, 10 or slightly later depending on the sect. The fact is, given Germany's history of how it has dealt with Jews, is is not illegitimate to wonder what the Court is thinking. Germany has one of the fastest growing Jewish populations in the world -- mostly through immigration. This decision, if enforced all over the country, would slow down or stop that population growth. One might at least ponder why this case has come to the Germany court, and not one involving piercing, tattoos, or Muslim circumcision. Paul Finkelman President William McKinley Distinguished Professor of Law Albany Law School 80 New Scotland Avenue Albany, NY 12208 518-445-3386 (p) 518-445-3363 (f) paul.finkel...@albanylaw.edu www.paulfinkelman.com From: Volokh, Eugene vol...@law.ucla.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Sunday, July 1, 2012 11:56 AM Subject: RE: German circumcision decision Any chance we could have some helpful analysis of the decision, rather than one-liners? The question of the degree to which parents should be able to permanently alter their children’s bodies – for religious reasons or otherwise – is not, it seems to me, one that has a completely obvious answer one way or the other. There may indeed be one correct answer that can be demonstrated, but such demonstration requires argument rather than assertion. Eugene ___ 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.___ 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
Isn't there still a substantial body of medical opinion--perhaps not as prevalent as in decades past--that recommends circumcision as a preventive health measure? If the issue is the lack of consent from the subject of the operation, this certainly affects more than just religious observance, and more than just this particular operation. And if the decision hinges specifically on the fact that the motivation (if that can ever be clear) is primarily religious, that certainly smacks of religio-cultural insensitivity, to put it mildly. Vance On Sun, Jul 1, 2012 at 12:21 PM, Paul Finkelman paul.finkel...@yahoo.comwrote: Are they also banning parents from piercing the ears of children? In many cultures it is common to see infant girls with pierced ears. Does the ban extend to pierced ears before age 18? And then there is body piercing before age 18. Is that being banned? Has the Court banned tattoos for people under 18? And has this ban spread to Muslim male children, who are circumcised at age 7, 10 or slightly later depending on the sect. The fact is, given Germany's history of how it has dealt with Jews, is is not illegitimate to wonder what the Court is thinking. Germany has one of the fastest growing Jewish populations in the world -- mostly through immigration. This decision, if enforced all over the country, would slow down or stop that population growth. One might at least ponder why this case has come to the Germany court, and not one involving piercing, tattoos, or Muslim circumcision. Paul Finkelman President William McKinley Distinguished Professor of Law Albany Law School 80 New Scotland Avenue Albany, NY 12208 518-445-3386 (p) 518-445-3363 (f) paul.finkel...@albanylaw.edu www.paulfinkelman.com -- *From:* Volokh, Eugene vol...@law.ucla.edu *To:* Law Religion issues for Law Academics religionlaw@lists.ucla.edu *Sent:* Sunday, July 1, 2012 11:56 AM *Subject:* RE: German circumcision decision Any chance we could have some helpful analysis of the decision, rather than one-liners? The question of the degree to which parents should be able to permanently alter their children’s bodies – for religious reasons or otherwise – is not, it seems to me, one that has a completely obvious answer one way or the other. There may indeed be one correct answer that can be demonstrated, but such demonstration requires argument rather than assertion. Eugene ___ 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. -- Vance R. Koven Boston, MA USA vrko...@world.std.com ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: German circumcision decision
there is mixed evidence on circumcision. Some suggesting it helps prevent cervical cancer in female partners; some that lowers the spread of STDs. The research is mixed and politicized (like lots of research) but there is evidence it has medical value. * Paul Finkelman, Ph.D. President William McKinley Distinguished Professor of Law Albany Law School 80 New Scotland Avenue Albany, NY 12208 518-445-3386 (p) 518-445-3363 (f) paul.finkel...@albanylaw.edumailto:paul.finkel...@albanylaw.edu www.paulfinkelman.comhttp://www.paulfinkelman.com * From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Vance R. Koven [vrko...@gmail.com] Sent: Sunday, July 01, 2012 12:37 PM To: Law Religion issues for Law Academics Subject: Re: German circumcision decision Isn't there still a substantial body of medical opinion--perhaps not as prevalent as in decades past--that recommends circumcision as a preventive health measure? If the issue is the lack of consent from the subject of the operation, this certainly affects more than just religious observance, and more than just this particular operation. And if the decision hinges specifically on the fact that the motivation (if that can ever be clear) is primarily religious, that certainly smacks of religio-cultural insensitivity, to put it mildly. Vance On Sun, Jul 1, 2012 at 12:21 PM, Paul Finkelman paul.finkel...@yahoo.commailto:paul.finkel...@yahoo.com wrote: Are they also banning parents from piercing the ears of children? In many cultures it is common to see infant girls with pierced ears. Does the ban extend to pierced ears before age 18? And then there is body piercing before age 18. Is that being banned? Has the Court banned tattoos for people under 18? And has this ban spread to Muslim male children, who are circumcised at age 7, 10 or slightly later depending on the sect. The fact is, given Germany's history of how it has dealt with Jews, is is not illegitimate to wonder what the Court is thinking. Germany has one of the fastest growing Jewish populations in the world -- mostly through immigration. This decision, if enforced all over the country, would slow down or stop that population growth. One might at least ponder why this case has come to the Germany court, and not one involving piercing, tattoos, or Muslim circumcision. Paul Finkelman President William McKinley Distinguished Professor of Law Albany Law School 80 New Scotland Avenue Albany, NY 12208 518-445-3386tel:518-445-3386 (p) 518-445-3363tel:518-445-3363 (f) paul.finkel...@albanylaw.edumailto:paul.finkel...@albanylaw.edu www.paulfinkelman.comhttp://www.paulfinkelman.com From: Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Sent: Sunday, July 1, 2012 11:56 AM Subject: RE: German circumcision decision Any chance we could have some helpful analysis of the decision, rather than one-liners? The question of the degree to which parents should be able to permanently alter their children’s bodies – for religious reasons or otherwise – is not, it seems to me, one that has a completely obvious answer one way or the other. There may indeed be one correct answer that can be demonstrated, but such demonstration requires argument rather than assertion. Eugene ___ 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.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. -- Vance R. Koven Boston, MA USA vrko...@world.std.commailto:vrko...@world.std.com ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent
RE: German circumcision decision
The basic issue, it seems to me, is the right of parents to instill a particular religious faith in their children. Requiring parents to raise their children with no religious faith so the children can decide on their religion when they become adults is not a satisfactory alternative to anyone who takes religion seriously. And I think most people would find 1st or 14th Amendment problems with that kind of requirement. Once it is conceded that parents can imprint religious beliefs in their children, why is it objectionable to imprint the religion physically, but not objectionable to imprint it mentally or psychologically? When children become adults, they can often much more easily ignore the physical imprint than the psychological one. Howard Friedman -Original Message- From: religionlaw-boun...@lists.ucla.edu on behalf of Volokh, Eugene Sent: Sun 7/1/2012 11:56 AM To: Law Religion issues for Law Academics Subject: RE: German circumcision decision Any chance we could have some helpful analysis of the decision, rather than one-liners? The question of the degree to which parents should be able to permanently alter their children's bodies - for religious reasons or otherwise - is not, it seems to me, one that has a completely obvious answer one way or the other. There may indeed be one correct answer that can be demonstrated, but such demonstration requires argument rather than assertion. Eugene ___ 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 agree with almost of all of Marty's thoughtful post -- except that I do not see this as a difficult case. When an attempt was made to place this issue on the ballot in San Francisco, some people argued medical and health concerns (although as Marty and Paul point out, the evidence here is indeterminate and disputed.) But most of the people I spoke with who supported the ban did so for almost quasi religious reasons -- a kind of don't alter the natural body philosophy -- or on autonomy grounds. While I think the autonomy argument isn't entirely frivolous, our legal system allows parents to make so many choices for their children that substantially impact their physical and mental health, personality, and appearance (without being subject to challenge on the grounds that they have interfered with the child's autonomy) that I don't assign a lot of weight to this interest. The alternative, after all, to having parents make these decisions is for the state to do so in their place. Finally, of course, there are the obvious consequences for such a ban on religious freedom. Laws that require devout religious individuals to violate core obligations of their faith at best are intrinsically exclusionary. Unless one envisions a world where moderately or seriously religious Jews (and Muslims) voluntarily cease to exist, a ban on circumcision prohibits those families from living in a community. Alan ___ 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
Alan's point raises another analytical issue. If don't harm the body is a semi-religious, ethical view, then aren't the German court and the proponents of the SF measure simply imposing their religious values on those of others who have a different faith. I think it is not unreasonable to see the German decision as an attempt to force out Muslims (and Jews) in a nation that is very uncomfortable with foreigners, immigration, and diversity. I have spent a fair amount of time in Germany over the last 20 years and I am always struck by how determined the Germans are not to allow Turks -- but this time 3rd and 4th generation German-born, German-speaking Turks -- to become German citizens. * Paul Finkelman, Ph.D. President William McKinley Distinguished Professor of Law Albany Law School 80 New Scotland Avenue Albany, NY 12208 518-445-3386 (p) 518-445-3363 (f) paul.finkel...@albanylaw.edumailto:paul.finkel...@albanylaw.edu www.paulfinkelman.comhttp://www.paulfinkelman.com * From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Alan Brownstein [aebrownst...@ucdavis.edu] Sent: Sunday, July 01, 2012 2:31 PM To: Law Religion issues for Law Academics Subject: RE: German circumcision decision I agree with almost of all of Marty's thoughtful post -- except that I do not see this as a difficult case. When an attempt was made to place this issue on the ballot in San Francisco, some people argued medical and health concerns (although as Marty and Paul point out, the evidence here is indeterminate and disputed.) But most of the people I spoke with who supported the ban did so for almost quasi religious reasons -- a kind of don't alter the natural body philosophy -- or on autonomy grounds. While I think the autonomy argument isn't entirely frivolous, our legal system allows parents to make so many choices for their children that substantially impact their physical and mental health, personality, and appearance (without being subject to challenge on the grounds that they have interfered with the child's autonomy) that I don't assign a lot of weight to this interest. The alternative, after all, to having parents make these decisions is for the state to do so in their place. Finally, of course, there are the obvious consequences for such a ban on religious freedom. Laws that require devout religious individuals to violate core obligations of their faith at best are intrinsically exclusionary. Unless one envisions a world where moderately or seriously religious Jews (and Muslims) voluntarily cease to exist, a ban on circumcision prohibits those families from living in a community. Alan ___ 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
Article 4 of the German constitution (go here: https://www.btg-bestellservice.de/pdf/80201000.pdf) protects not only freedom of conscience, but the equivalent of free exercise (the undisturbed practice of religion). The court dealt with this in fairly summary fashion: The parents' fundamental rights under Article 4 (1), 6 (2) of the Basic Law (*Grundgesetz*, GG) in turn are limited by the fundamental right of the child to physical integrity and self-determination under Article 2 (1) and (2) sentence 1 GG. No citation, no analysis. It also cites section 4(1), the freedom on conscience clause, rather than 4(2), the free exercise clause. The Landgericht is an intermediate state court (note that in addition to one judge the panel consists of two laymen, both postal employees), from which there is a further appeal in the state, and thereafter an appeal to the highest ordinary federal court (Bundesgerichtshof). Reference to the federal Constitutional Court (Bundesverfassungsgericht) are possible at any stage once a constitutional issue is properly raised. Vance On Sun, Jul 1, 2012 at 2:31 PM, Alan Brownstein aebrownst...@ucdavis.eduwrote: I agree with almost of all of Marty's thoughtful post -- except that I do not see this as a difficult case. When an attempt was made to place this issue on the ballot in San Francisco, some people argued medical and health concerns (although as Marty and Paul point out, the evidence here is indeterminate and disputed.) But most of the people I spoke with who supported the ban did so for almost quasi religious reasons -- a kind of don't alter the natural body philosophy -- or on autonomy grounds. While I think the autonomy argument isn't entirely frivolous, our legal system allows parents to make so many choices for their children that substantially impact their physical and mental health, personality, and appearance (without being subject to challenge on the grounds that they have interfered with the child's autonomy) that I don't assign a lot of weight to this interest. The alternative, after all, to having parents make these decisions is for the state to do so in their place. Finally, of course, there are the obvious consequences for such a ban on religious freedom. Laws that require devout religious individuals to violate core obligations of their faith at best are intrinsically exclusionary. Unless one envisions a world where moderately or seriously religious Jews (and Muslims) voluntarily cease to exist, a ban on circumcision prohibits those families from living in a community. Alan ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. -- Vance R. Koven Boston, MA USA vrko...@world.std.com ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: German circumcision decision
As a matter of fact, I'm quite certain the case involved a botched Moslem circumcision. And I strongly suspect there is more anti-Islamic sentiment than traditional anti-Semitism (directed at Jews) in contemporary Germany. Indeed, the decision offers an opportunity for Jews and Moslems to unite. Sandy From: religionlaw-boun...@lists.ucla.edu religionlaw-boun...@lists.ucla.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Sun Jul 01 11:21:28 2012 Subject: Re: German circumcision decision Are they also banning parents from piercing the ears of children? In many cultures it is common to see infant girls with pierced ears. Does the ban extend to pierced ears before age 18? And then there is body piercing before age 18. Is that being banned? Has the Court banned tattoos for people under 18? And has this ban spread to Muslim male children, who are circumcised at age 7, 10 or slightly later depending on the sect. The fact is, given Germany's history of how it has dealt with Jews, is is not illegitimate to wonder what the Court is thinking. Germany has one of the fastest growing Jewish populations in the world -- mostly through immigration. This decision, if enforced all over the country, would slow down or stop that population growth. One might at least ponder why this case has come to the Germany court, and not one involving piercing, tattoos, or Muslim circumcision. Paul Finkelman President William McKinley Distinguished Professor of Law Albany Law School 80 New Scotland Avenue Albany, NY 12208 518-445-3386 (p) 518-445-3363 (f) paul.finkel...@albanylaw.edu www.paulfinkelman.com From: Volokh, Eugene vol...@law.ucla.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Sunday, July 1, 2012 11:56 AM Subject: RE: German circumcision decision Any chance we could have some helpful analysis of the decision, rather than one-liners? The question of the degree to which parents should be able to permanently alter their children’s bodies – for religious reasons or otherwise – is not, it seems to me, one that has a completely obvious answer one way or the other. There may indeed be one correct answer that can be demonstrated, but such demonstration requires argument rather than assertion. Eugene ___ 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.
Re: German circumcision decision
I'm not clear why Paul puts cruel in scare quotes. It seems clear--see Temple Grandin's lifework--that it IS less humane than other possible means of slaughtering. Perhaps it has to be tolerated, but we shouldn't avoid the truth. Sandy From: religionlaw-boun...@lists.ucla.edu religionlaw-boun...@lists.ucla.edu To: Paul Finkelman paul.finkel...@yahoo.com; Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Sun Jul 01 11:30:02 2012 Subject: Re: German circumcision decision I posted this before I had a chance to read the decision, which I now see is about a Muslim case; that undermines some of my arguments, but not all of them. The politics may be less about Jews than Muslims but the issue remains the same -- a fundamental attack on religious minorities. I wonder, for example, whether the next step will be a ban on Kosher or Halal slaughtering on the grounds that it is cruel to animals? The case does not seem to be based on the place of the circumcision. That is one could imagine a law that requires it to be done in a hospital. But this does not appear to be the issue here. Paul Finkelman President William McKinley Distinguished Professor of Law Albany Law School 80 New Scotland Avenue Albany, NY 12208 518-445-3386 (p) 518-445-3363 (f) paul.finkel...@albanylaw.edu www.paulfinkelman.com From: Paul Finkelman paul.finkel...@yahoo.com To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Sunday, July 1, 2012 12:21 PM Subject: Re: German circumcision decision Are they also banning parents from piercing the ears of children? In many cultures it is common to see infant girls with pierced ears. Does the ban extend to pierced ears before age 18? And then there is body piercing before age 18. Is that being banned? Has the Court banned tattoos for people under 18? And has this ban spread to Muslim male children, who are circumcised at age 7, 10 or slightly later depending on the sect. The fact is, given Germany's history of how it has dealt with Jews, is is not illegitimate to wonder what the Court is thinking. Germany has one of the fastest growing Jewish populations in the world -- mostly through immigration. This decision, if enforced all over the country, would slow down or stop that population growth. One might at least ponder why this case has come to the Germany court, and not one involving piercing, tattoos, or Muslim circumcision. Paul Finkelman President William McKinley Distinguished Professor of Law Albany Law School 80 New Scotland Avenue Albany, NY 12208 518-445-3386 (p) 518-445-3363 (f) paul.finkel...@albanylaw.edu www.paulfinkelman.comhttp://www.paulfinkelman.com/ From: Volokh, Eugene vol...@law.ucla.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Sunday, July 1, 2012 11:56 AM Subject: RE: German circumcision decision Any chance we could have some helpful analysis of the decision, rather than one-liners? The question of the degree to which parents should be able to permanently alter their children’s bodies – for religious reasons or otherwise – is not, it seems to me, one that has a completely obvious answer one way or the other. There may indeed be one correct answer that can be demonstrated, but such demonstration requires argument rather than assertion. Eugene ___ 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.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
RE: German circumcision decision
I put cruel in quotation marks because while Kosher or Halal slaughtering may be less instant than other kinds, given the horrible treatment of animals in feed lots and at commercial slaughterhouses, it seems that the cruel is clearly relative. A proper Kosher slaughtering takes only a few seconds and because the animals must be healthy, you will not find weak, sick animals being herded to the slaughter house, prodded with electric prods, in order to get them there. This is not an attack on eating meat, rather it is a suggestion that there is a great deal of hypocrisy in attacks on kosher slaughtering. (I should add I do not keep Kosher and get almost all my meat directly from farmers raising them for small scale farming, grass feeding, and non-industrial slaughtering.) But to make an argument that Kosher slaughtering is less humane than other kinds, is to ignore the mistreatment of animals by large scale producers, even if the actual moment of slaughtering take a few seconds less than Kosher or Halal. * Paul Finkelman, Ph.D. President William McKinley Distinguished Professor of Law Albany Law School 80 New Scotland Avenue Albany, NY 12208 518-445-3386 (p) 518-445-3363 (f) paul.finkel...@albanylaw.edumailto:paul.finkel...@albanylaw.edu www.paulfinkelman.comhttp://www.paulfinkelman.com * From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Sanford Levinson [slevin...@law.utexas.edu] Sent: Sunday, July 01, 2012 1:06 PM To: 'paul.finkel...@yahoo.com'; 'religionlaw@lists.ucla.edu' Subject: Re: German circumcision decision I'm not clear why Paul puts cruel in scare quotes. It seems clear--see Temple Grandin's lifework--that it IS less humane than other possible means of slaughtering. Perhaps it has to be tolerated, but we shouldn't avoid the truth. Sandy From: religionlaw-boun...@lists.ucla.edu religionlaw-boun...@lists.ucla.edu To: Paul Finkelman paul.finkel...@yahoo.com; Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Sun Jul 01 11:30:02 2012 Subject: Re: German circumcision decision I posted this before I had a chance to read the decision, which I now see is about a Muslim case; that undermines some of my arguments, but not all of them. The politics may be less about Jews than Muslims but the issue remains the same -- a fundamental attack on religious minorities. I wonder, for example, whether the next step will be a ban on Kosher or Halal slaughtering on the grounds that it is cruel to animals? The case does not seem to be based on the place of the circumcision. That is one could imagine a law that requires it to be done in a hospital. But this does not appear to be the issue here. Paul Finkelman President William McKinley Distinguished Professor of Law Albany Law School 80 New Scotland Avenue Albany, NY 12208 518-445-3386 (p) 518-445-3363 (f) paul.finkel...@albanylaw.edu www.paulfinkelman.com From: Paul Finkelman paul.finkel...@yahoo.com To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Sunday, July 1, 2012 12:21 PM Subject: Re: German circumcision decision Are they also banning parents from piercing the ears of children? In many cultures it is common to see infant girls with pierced ears. Does the ban extend to pierced ears before age 18? And then there is body piercing before age 18. Is that being banned? Has the Court banned tattoos for people under 18? And has this ban spread to Muslim male children, who are circumcised at age 7, 10 or slightly later depending on the sect. The fact is, given Germany's history of how it has dealt with Jews, is is not illegitimate to wonder what the Court is thinking. Germany has one of the fastest growing Jewish populations in the world -- mostly through immigration. This decision, if enforced all over the country, would slow down or stop that population growth. One might at least ponder why this case has come to the Germany court, and not one involving piercing, tattoos, or Muslim circumcision. Paul Finkelman President William McKinley Distinguished Professor of Law Albany Law School 80 New Scotland Avenue Albany, NY 12208 518-445-3386 (p) 518-445-3363 (f) paul.finkel...@albanylaw.edu www.paulfinkelman.comhttp://www.paulfinkelman.com/ From: Volokh, Eugene vol...@law.ucla.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Sunday, July 1, 2012 11:56 AM Subject: RE: German circumcision decision Any chance we could have some helpful analysis of the decision, rather than one-liners? The question of the degree to which parents should be able to permanently alter their children’s bodies – for religious reasons or otherwise
RE: German circumcision decision
Howard's point about psychological versus physical imprinting of parents' views is well taken. And it highlights what I see as the central issue here, which is the degree to which we as a society are willing to permit a range of views and actions to exist in subsidiary communities, even when they may be wrong-headed, and how quickly we are willing to allow the State to move in to enforce the views of a majority. I would suspect everyone on this list would say that it is fine for parents as a general matter to share their ethics and religion with their children-the only alternative is the sort of education suggested by Plato in The Republic where childrens' whole education and worldview is controlled by the State to design perfect citizens (Plato's view of perfect citizens, that is). The real question is when to permit the State to step in to prevent harm, and we have a range of tolerances for that. I would think everyone on the list would step in to stop children from engaging in snake handling, or to protect them from sexual or physical abuse. And everybody would allow on the other hand people to impart things like their own version of the Golden Rule, their own holidays, and their own methods of burial. Everything else on the spectrum, from circumcision to teaching about gender norms and sexuality, to teaching about core beliefs about the nature of the world, induces varying degrees of perceived benefits and harms. The question is who should have the burden of proof, and what the default position should be. I believe that the default should be to allow the parents to decide, and that the State has a very heavy burden of showing that it needs to step in. Circumcision under this view to me is an easy case-there are secular reasons why someone might believe circumcision is good for their child, there are secular reasons why some might oppose the practice, and there are centuries of religious traditions endorsing it. The State cannot possibly be given a trump in such a case. Allowing the State to supplant parents' views in circumcision would also support supplanting parents' views in psychological/social matters as well. Imagine, for example, a local majority somewhere that believe that it is harmful to raise children to believe that homosexuality is healthy. Could the state intervene to prevent these views from being imparted? Or imagine a local majority with the opposite view, which would lead to intervention in a family that was teaching that homosexuality is a sin. These questions call for less a debate about particular rights, and more a holistic debate about the need for humility and circumspection by the State. Eric Treene (in my personal capacity, of course) From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Friedman, Howard M. Sent: Sunday, July 01, 2012 2:23 PM To: Law Religion issues for Law Academics Subject: RE: German circumcision decision The basic issue, it seems to me, is the right of parents to instill a particular religious faith in their children. Requiring parents to raise their children with no religious faith so the children can decide on their religion when they become adults is not a satisfactory alternative to anyone who takes religion seriously. And I think most people would find 1st or 14th Amendment problems with that kind of requirement. Once it is conceded that parents can imprint religious beliefs in their children, why is it objectionable to imprint the religion physically, but not objectionable to imprint it mentally or psychologically? When children become adults, they can often much more easily ignore the physical imprint than the psychological one. Howard Friedman -Original Message- From: religionlaw-boun...@lists.ucla.edu on behalf of Volokh, Eugene Sent: Sun 7/1/2012 11:56 AM To: Law Religion issues for Law Academics Subject: RE: German circumcision decision Any chance we could have some helpful analysis of the decision, rather than one-liners? The question of the degree to which parents should be able to permanently alter their children's bodies - for religious reasons or otherwise - is not, it seems to me, one that has a completely obvious answer one way or the other. There may indeed be one correct answer that can be demonstrated, but such demonstration requires argument rather than assertion. Eugene ___ 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
With regard to the US and our 1st Amendment: I've been suggesting for some time informally that we should consider a historical (an historical?) approach to free exercise. Those religious practices that have been accepted for a long time in our society settings (and modern analogues) should be seen as part of the religious exercise that is protected. Use of relatively small amounts of mildly intoxicating substances by adults or near-adults in controlled settings (e.g., communion wine) should be protected. That would cover not only communion wine but also the religious uses of hoasca tea and peyote. Use of large amounts of traditionally accepted intoxicants in a historically societally-accepted setting (drinking of substantial amounts wine in Jewish religious celebrations like the Passover Seder) could arguably be protected. Circumcision not only has been a historically-accepted practice but also has historically been seen as necessary for the existence in our society of a minority religious community, the Jews. By analogy, similar practices that have only relatively benign and limited physical effects should be protected, including Muslim circumcision (which I suppose but do not know to be very similar to Jewish circumcision). Branding children's faces or female genital mutilation would not be protected, though the details of how they would be distinguished would have to be worked out. Note that circumcision has been widely practiced in the US by Christians as well as by Jews, and has been seen as a kind of familial choice. For Smith purposes, the combination of historically-rooted parental rights with the free exercise claim should be sufficient even under current law to protect circumcision. All of this is apart from the ethics of this German decision, which is reprehensible in its foreseeable effect of destroying or banishing one or more religious communities. Note also that circumcision is not necessarily irreversible. See http://intactnews.org/node/115/1314118161/pioneering-foreskin-regeneration-reverse-circumcision-interview-founder-foregen. 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 Volokh, Eugene Sent: Sunday, July 01, 2012 8:56 AM To: Law Religion issues for Law Academics Subject: RE: German circumcision decision Any chance we could have some helpful analysis of the decision, rather than one-liners? The question of the degree to which parents should be able to permanently alter their children's bodies - for religious reasons or otherwise - is not, it seems to me, one that has a completely obvious answer one way or the other. There may indeed be one correct answer that can be demonstrated, but such demonstration requires argument rather than assertion. Eugene ___ 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: German circumcision decision
This just pushed one of my buttons. My parents apparently thought let them choose when they grow up was a sensible way to deal with the issues of a mixed marriage. (He was an insufferable cultural Jew, she a theologically illiterate Protestant.) What really happened on the planet Earth was that I was getting the message loud and clear that religion is something shameful that nice people don't even talk about. I also would ask how people who don't have the intellectual equipment I did are expected to make an intelligent choice on emerging from the cocoon, when they have been systematically shielded from all information on which to base one. (Particularly if what they emerge into is the nodiscussionofpoliticsorreligion version of polite society.)On 07/01/12, Friedman, Howard M.howard.fried...@utoledo.edu wrote:The basic issue, it seems to me, is the right of parents to instill a particular religious faith in their children. Requiring parents to raise their children with no religious faith so the children can decide on their religion when they become adults is not a satisfactory alternative to anyone who takes religion seriously ___ 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.
Male circumcision, female circumcision, and ear-piercing
An analogy between male circumcision and ear-piercing is no more dispositive than an analogy between male circumcision and female circumcision, it seems to me. There’s a spectrum here: Normal ear-piercing has virtually no effects on bodily function, since there seem to be no really significant nerve endings or other really significant tissue removed in the process. Normal male circumcision might well have some effects on sexual sensation, given the removal of an area of skin that does seem to have considerable sexual sensation. Many forms of female circumcision pretty clearly have very substantial effects on sexual sensation (as well as having other harmful effects). What makes this a hard question is precisely that we don’t know much about where to draw the line on this spectrum – a spectrum that of course involves people’s altering other people’s bodies (even if those other people are their children) and not their own. Incidentally, it’s far from clear to me that a ban on tattooing under-18-year-olds in prominent places (which could have marked effects on their children’s future social lives as adults) would be unconstitutional or improper even if parents wanted to tattoo the children, especially in an era when tattoos were hard to remove. Eugene Paul Finkelman writes: Are they also banning parents from piercing the ears of children? In many cultures it is common to see infant girls with pierced ears. Does the ban extend to pierced ears before age 18? And then there is body piercing before age 18. Is that being banned? Has the Court banned tattoos for people under 18? ___ 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
Marty: Everything you say is sensible, and I agree that the case is difficult. This is precisely why a one-line statement about German history is inadequate to advance the ball much on this. As a general matter, it seems to me that a country's 70-year-old crimes tell much about what that country should do today; as a specific matter, I don't think that a country's killing Jews in the past tells us much about whether it's wrong for the country to try to protect children - indeed, often Jewish (or Muslim) children - from what a reasonable person could perceive as irreversible imposition of a harm that the children can't consent to and might indeed eventually regret. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Sunday, July 01, 2012 9:21 AM To: Law Religion issues for Law Academics Subject: Re: German circumcision decision Actually, I don't think Paul's comment is a one-liner -- the fact that this decision comes from Germany is surely the most striking and disconcerting -- and important -- thing about it. As far as analysis is concerned, well, how could there be a correct answer? I think we can all agree that such a law imposes a very substantial burden on the religious exercise of most of those affected. Is there a governmental interest sufficient to overcome this burden, as either a legal or a moral matter? Well, that depends, of course, on how the society in question measures the harms to the infant boys -- harms to health, dignity, autonomy, etc. And that in turn depends on ever-shifting evidence and evolving moral sensibilities. If this were a case in which many or most of the boys in question later regretted the decisions of their parents, or where there were an undeniable, severe harm in terms of health or sexual well-being -- as is the case with respect to, e.g., female genital mutilation -- then the balancing would be fairly obvious. But in this case, not only do most men not mind that their parents made that decision (I assume that's also true in Germany -- but perhaps not), but in addition, many or most of those men who prefer to be circumcised are actually grateful that the decision was made at birth, since the procedure is much riskier and more painful (or so I'm told!) when performed on an adult. Surely that unusual set of facts makes this case much different from, e.g., the FGM and denial-of-lifesaving-medical treatment cases. On the other hand, the harm to the men (presumably a minority -- but again, perhaps things are different in Germany) who regret their parents' decision is irreversable. That's what makes the case so difficult. On Sun, Jul 1, 2012 at 11:56 AM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: Any chance we could have some helpful analysis of the decision, rather than one-liners? The question of the degree to which parents should be able to permanently alter their children's bodies - for religious reasons or otherwise - is not, it seems to me, one that has a completely obvious answer one way or the other. There may indeed be one correct answer that can be demonstrated, but such demonstration requires argument rather than assertion. Eugene ___ 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.
RE: German circumcision decision
I don't see why it's religio-cultural[ly] insensitiv[e] to say that a decision made for medical reasons is permissible but a decision made for religious reasons is not; or if it is religio-culturally insensitive, I would be proudly religio-culturally insensitive in many instances. (This instance I do find hard, for many reasons, but not for the reasons described below.) For instance, I don't see why we should treat (a) a parent's refusing necessary medical treatment to a child because there's a plausible argument that the treatment will do more harm than good the same as (b) a parent's refusing such treatment without any such explanation but simply because he concludes we should pray instead of performing the medical procedure, and God will take care of things. Perhaps it's too hard to tease apart such rationales in some situations, but as a general matter I would think that courts might quite rightly reject rationale (b) even if they accept rationale (a). Now of course here the situation is not identical - indeed, as I've argued before, male circumcision is not identical to pretty much any other procedure - and perhaps the situation should be different when we're not talking about refusal of necessary medical treatment but rather the performance of a medical procedure for which the practical effect (with regard to possible loss of sexual sensation) is unknown. But the point is that the mere fact that a decision might permissibly be made for plausible medical reasons doesn't mean that it might permissibly be made for religious reasons (or other nonmedical reasons). Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Vance R. Koven Sent: Sunday, July 01, 2012 9:38 AM To: Law Religion issues for Law Academics Subject: Re: German circumcision decision Isn't there still a substantial body of medical opinion--perhaps not as prevalent as in decades past--that recommends circumcision as a preventive health measure? If the issue is the lack of consent from the subject of the operation, this certainly affects more than just religious observance, and more than just this particular operation. And if the decision hinges specifically on the fact that the motivation (if that can ever be clear) is primarily religious, that certainly smacks of religio-cultural insensitivity, to put it mildly. Vance On Sun, Jul 1, 2012 at 12:21 PM, Paul Finkelman paul.finkel...@yahoo.commailto:paul.finkel...@yahoo.com wrote: Are they also banning parents from piercing the ears of children? In many cultures it is common to see infant girls with pierced ears. Does the ban extend to pierced ears before age 18? And then there is body piercing before age 18. Is that being banned? Has the Court banned tattoos for people under 18? And has this ban spread to Muslim male children, who are circumcised at age 7, 10 or slightly later depending on the sect. The fact is, given Germany's history of how it has dealt with Jews, is is not illegitimate to wonder what the Court is thinking. Germany has one of the fastest growing Jewish populations in the world -- mostly through immigration. This decision, if enforced all over the country, would slow down or stop that population growth. One might at least ponder why this case has come to the Germany court, and not one involving piercing, tattoos, or Muslim circumcision. Paul Finkelman President William McKinley Distinguished Professor of Law Albany Law School 80 New Scotland Avenue Albany, NY 12208 518-445-3386tel:518-445-3386 (p) 518-445-3363tel:518-445-3363 (f) paul.finkel...@albanylaw.edumailto:paul.finkel...@albanylaw.edu www.paulfinkelman.comhttp://www.paulfinkelman.com From: Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Sent: Sunday, July 1, 2012 11:56 AM Subject: RE: German circumcision decision Any chance we could have some helpful analysis of the decision, rather than one-liners? The question of the degree to which parents should be able to permanently alter their children's bodies - for religious reasons or otherwise - is not, it seems to me, one that has a completely obvious answer one way or the other. There may indeed be one correct answer that can be demonstrated, but such demonstration requires argument rather than assertion. Eugene ___ 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
AP: German Minister Moves to Calm Circumcision Fears
[Via ABC News, http://abcnews.go.com/International/wireStory/german-minister-moves-calm-circumcision-fears-16688475. I realize that this is not responsive to US constitutional law questions, but I thought list members would like to see this story.] German Minister Moves to Calm Circumcision Fears BERLIN July 1, 2012 (AP) ... Foreign Minister Guido Westerwelle said that a legal debate must not lead to doubts arising internationally about religious tolerance in Germany. The free exercise of religion is protected in Germany. That includes religious traditions, Westerwelle said in a statement. All our partners in the world should know that. Volker Beck, a senior lawmaker with the opposition Greens, left open whether a correction of the Cologne ruling should be sought through the court system or through new legislation, but he said the result should be clarity that circumcision on religious grounds is justified so long as hygienic and medical standards are kept to. ... The case in Cologne involved a doctor accused of carrying out a circumcision on a 4-year-old, approved by his Muslim parents, that led to medical complications. The doctor was acquitted, however, and prosecutors said they won't appeal. Unlike female circumcision, there is no law prohibiting the practice and the ruling isn't binding for other courts - but it creates a potentially tricky legal situation for doctors who perform the procedure on parents' orders. 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 Volokh, Eugene Sent: Sunday, July 01, 2012 2:22 PM To: Law Religion issues for Law Academics Subject: RE: German circumcision decision I don't see why it's religio-cultural[ly] insensitiv[e] to say that a decision made for medical reasons is permissible but a decision made for religious reasons is not; or if it is religio-culturally insensitive, I would be proudly religio-culturally insensitive in many instances. (This instance I do find hard, for many reasons, but not for the reasons described below.) For instance, I don't see why we should treat (a) a parent's refusing necessary medical treatment to a child because there's a plausible argument that the treatment will do more harm than good the same as (b) a parent's refusing such treatment without any such explanation but simply because he concludes we should pray instead of performing the medical procedure, and God will take care of things. Perhaps it's too hard to tease apart such rationales in some situations, but as a general matter I would think that courts might quite rightly reject rationale (b) even if they accept rationale (a). Now of course here the situation is not identical - indeed, as I've argued before, male circumcision is not identical to pretty much any other procedure - and perhaps the situation should be different when we're not talking about refusal of necessary medical treatment but rather the performance of a medical procedure for which the practical effect (with regard to possible loss of sexual sensation) is unknown. But the point is that the mere fact that a decision might permissibly be made for plausible medical reasons doesn't mean that it might permissibly be made for religious reasons (or other nonmedical reasons). Eugene From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu]mailto:[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Vance R. Koven Sent: Sunday, July 01, 2012 9:38 AM To: Law Religion issues for Law Academics Subject: Re: German circumcision decision Isn't there still a substantial body of medical opinion--perhaps not as prevalent as in decades past--that recommends circumcision as a preventive health measure? If the issue is the lack of consent from the subject of the operation, this certainly affects more than just religious observance, and more than just this particular operation. And if the decision hinges specifically on the fact that the motivation (if that can ever be clear) is primarily religious, that certainly smacks of religio-cultural insensitivity, to put it mildly. Vance On Sun, Jul 1, 2012 at 12:21 PM, Paul Finkelman paul.finkel...@yahoo.commailto:paul.finkel...@yahoo.com wrote: Are they also banning parents from piercing the ears of children? In many cultures it is common to see infant girls with pierced ears. Does the ban extend to pierced ears before age 18? And then there is body piercing before age 18. Is that being banned? Has the Court banned tattoos for people under 18? And has this ban spread to Muslim male children, who are circumcised at age 7, 10 or slightly later depending on the sect. The fact is, given Germany's history of how it has dealt with Jews, is is not illegitimate to wonder what the Court
Re: German circumcision decision
U From: Finkelman, Paul paul.finkel...@albanylaw.edu [mailto:paul.finkel...@albanylaw.edu] Sent: Sunday, July 01, 2012 12:43 PM To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Subject: RE: German circumcision decision there is mixed evidence on circumcision. Some suggesting it helps prevent cervical cancer in female partners; some that lowers the spread of STDs. The research is mixed and politicized (like lots of research) but there is evidence it has medical value. * Paul Finkelman, Ph.D. President William McKinley Distinguished Professor of Law Albany Law School 80 New Scotland Avenue Albany, NY 12208 518-445-3386 (p) 518-445-3363 (f) paul.finkel...@albanylaw.edumailto:paul.finkel...@albanylaw.edu www.paulfinkelman.comhttp://www.paulfinkelman.com * From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Vance R. Koven [vrko...@gmail.com] Sent: Sunday, July 01, 2012 12:37 PM To: Law Religion issues for Law Academics Subject: Re: German circumcision decision Isn't there still a substantial body of medical opinion--perhaps not as prevalent as in decades past--that recommends circumcision as a preventive health measure? If the issue is the lack of consent from the subject of the operation, this certainly affects more than just religious observance, and more than just this particular operation. And if the decision hinges specifically on the fact that the motivation (if that can ever be clear) is primarily religious, that certainly smacks of religio-cultural insensitivity, to put it mildly. Vance On Sun, Jul 1, 2012 at 12:21 PM, Paul Finkelman paul.finkel...@yahoo.commailto:paul.finkel...@yahoo.com wrote: Are they also banning parents from piercing the ears of children? In many cultures it is common to see infant girls with pierced ears. Does the ban extend to pierced ears before age 18? And then there is body piercing before age 18. Is that being banned? Has the Court banned tattoos for people under 18? And has this ban spread to Muslim male children, who are circumcised at age 7, 10 or slightly later depending on the sect. The fact is, given Germany's history of how it has dealt with Jews, is is not illegitimate to wonder what the Court is thinking. Germany has one of the fastest growing Jewish populations in the world -- mostly through immigration. This decision, if enforced all over the country, would slow down or stop that population growth. One might at least ponder why this case has come to the Germany court, and not one involving piercing, tattoos, or Muslim circumcision. Paul Finkelman President William McKinley Distinguished Professor of Law Albany Law School 80 New Scotland Avenue Albany, NY 12208 518-445-3386tel:518-445-3386 (p) 518-445-3363tel:518-445-3363 (f) paul.finkel...@albanylaw.edumailto:paul.finkel...@albanylaw.edu www.paulfinkelman.comhttp://www.paulfinkelman.com From: Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Sent: Sunday, July 1, 2012 11:56 AM Subject: RE: German circumcision decision Any chance we could have some helpful analysis of the decision, rather than one-liners? The question of the degree to which parents should be able to permanently alter their children’s bodies – for religious reasons or otherwise – is not, it seems to me, one that has a completely obvious answer one way or the other. There may indeed be one correct answer that can be demonstrated, but such demonstration requires argument rather than assertion. Eugene ___ 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.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. -- Vance R. Koven Boston, MA USA vrko...@world.std.commailto:vrko...@world.std.com
RE: German Minister Moves to Calm Circumcision Fears
Mark -- My understanding is that this particular case is at an end, and the state intermediate appellate court's ruling stands, because the prosecution chose not to appeal. So any change will have to come by means of another case or legislative action. Eric From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark [mark.scarbe...@pepperdine.edu] Sent: Sunday, July 01, 2012 5:35 PM To: Law Religion issues for Law Academics Subject: AP: German Minister Moves to Calm Circumcision Fears [Via ABC News, http://abcnews.go.com/International/wireStory/german-minister-moves-calm-circumcision-fears-16688475. I realize that this is not responsive to US constitutional law questions, but I thought list members would like to see this story.] German Minister Moves to Calm Circumcision Fears BERLIN July 1, 2012 (AP) … Foreign Minister Guido Westerwelle said that a legal debate must not lead to doubts arising internationally about religious tolerance in Germany. The free exercise of religion is protected in Germany. That includes religious traditions, Westerwelle said in a statement. All our partners in the world should know that. Volker Beck, a senior lawmaker with the opposition Greens, left open whether a correction of the Cologne ruling should be sought through the court system or through new legislation, but he said the result should be clarity that circumcision on religious grounds is justified so long as hygienic and medical standards are kept to. … The case in Cologne involved a doctor accused of carrying out a circumcision on a 4-year-old, approved by his Muslim parents, that led to medical complications. The doctor was acquitted, however, and prosecutors said they won't appeal. Unlike female circumcision, there is no law prohibiting the practice and the ruling isn't binding for other courts — but it creates a potentially tricky legal situation for doctors who perform the procedure on parents' orders. 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 Volokh, Eugene Sent: Sunday, July 01, 2012 2:22 PM To: Law Religion issues for Law Academics Subject: RE: German circumcision decision I don’t see why it’s “religio-cultural[ly] insensitiv[e]” to say that a decision made for medical reasons is permissible but a decision made for religious reasons is not; or if it is religio-culturally insensitive, I would be proudly religio-culturally insensitive in many instances. (This instance I do find hard, for many reasons, but not for the reasons described below.) For instance, I don’t see why we should treat (a) a parent’s refusing necessary medical treatment to a child because there’s a plausible argument that the treatment will do more harm than good the same as (b) a parent’s refusing such treatment without any such explanation but simply because he concludes “we should pray instead of performing the medical procedure, and God will take care of things.” Perhaps it’s too hard to tease apart such rationales in some situations, but as a general matter I would think that courts might quite rightly reject rationale (b) even if they accept rationale (a). Now of course here the situation is not identical – indeed, as I’ve argued before, male circumcision is not identical to pretty much any other procedure – and perhaps the situation should be different when we’re not talking about refusal of necessary medical treatment but rather the performance of a medical procedure for which the practical effect (with regard to possible loss of sexual sensation) is unknown. But the point is that the mere fact that a decision might permissibly be made for plausible medical reasons doesn’t mean that it might permissibly be made for religious reasons (or other nonmedical reasons). Eugene From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu]mailto:[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Vance R. Koven Sent: Sunday, July 01, 2012 9:38 AM To: Law Religion issues for Law Academics Subject: Re: German circumcision decision Isn't there still a substantial body of medical opinion--perhaps not as prevalent as in decades past--that recommends circumcision as a preventive health measure? If the issue is the lack of consent from the subject of the operation, this certainly affects more than just religious observance, and more than just this particular operation. And if the decision hinges specifically on the fact that the motivation (if that can ever be clear) is primarily religious, that certainly smacks of religio-cultural insensitivity, to put it mildly. Vance On Sun, Jul 1, 2012 at 12:21 PM, Paul Finkelman paul.finkel
Circumcision, Religion and Custody in Oregon
Apropos the ongoing discussion of the role religious beliefs should play in custody disputes, the Oregon Supreme Court decided today that a 12 year old boy should have some say in the custodial parent's decision to have him circumcisd, though that say should occur within the context of the noncustodial parent's motion for a change of custody. The parents reared their son in the Russian Orthodox faith, but at about the time of their divorce, the father began to study Judaism and later converted. As custodial parent, the father elected to have the son circumcised claiming that the boy wished to be circumcised because of his interest in converting to Judaism; the mother objected and asserted that so did her son; she sought to enjoin the circumcision and to obtain a change of custody. In response, the father, aided by amici, asserted both that the son accepted the decision to be circumcised, and that in any event the son's wishes were irrelevant, and that even conducting an evidentiary hearing to determine the son's wishes would violate the free exercise rights of the father to control as custodial parent the decision of whether to circumcise his son. The trial court temporarily enjoined the circumcision, and the case made its way to the Oregon supreme court. The relevant portion of the decision (minus footnotes) follows: Although the parties and amici have presented extensive material regarding circumcision, we do not need to decide in this case which side has presented a more persuasive case regarding the medical risks or benefits of male circumcision. We conclude that, although circumcision is an invasive medical procedure that results in permanent physical alteration of a body part and has attendant medical risks, the decision to have a male child circumcised for medical or religious reasons is one that is commonly and historically made by parents in the United States. We also conclude that the decision to circumcise a male child is one that generally falls within a custodial parent's authority, unfettered by a noncustodial parent's concerns or beliefs -- medical, religious or otherwise. Were mother's concerns or beliefs regarding circumcision all that were asserted in the affidavits in this case, we would conclude that mother did not carry her initial statutory burden to demonstrate a sufficient change in circumstances demonstrating father's inability to properly care for M. However, in this case, mother has averred in her affidavit that M objects to the circumcision. In our view, at age 12, M's attitude regarding circumcision, though not conclusive of the custody issue presented here, is a fact necessary to the determination of whether mother has asserted a colorable claim of a change of circumstances sufficient to warrant a hearing concerning whether to change custody. That is so because forcing M at age 12 to undergo the circumcision against his will could seriously affect the relationship between M and father, and could have a pronounced effect on father's capability to properly care for M. See Greisamer, 276 Or at 400 (illustrating proposition). Thus, if mother's assertions are verified the trial court would be entitled to reconsider custody. As to that inquiry, however, we think that no decision should be made without some assessment of M's true state of mind. That conclusion dictates the outcome here. We remand the case to the trial court with instructions to resolve the factual issue whether M agrees or objects to the circumcision. In order to resolve that question, the trial court may choose to determine M's state of mind utilizing means available to it under the relevant provisions of ORS 107.425. If the trial court finds that M agrees to be circumcised, the court shall enter an order denying mother's motions. If, however, the trial court finds that M opposes the circumcision, it must then determine whether M's opposition to the circumcision will affect father's ability to properly care for M. And, if necessary, the trial court then can determine whether it is in M's best interests to retain the existing custody arrangement, whether other conditions should be imposed on father's continued custody of M, or change custody from father to mother. Boldt v. Boldt, http://www.publications.ojd.state.or.us/S054714.htm If the son wishes to proceed with the circumcision, the litigation should quickly come to an end for lack of any basis to order a change of custody. But suppose the trial court determines in an evidentiary hearing that the son opposes circumcision. How should the court determine whether it is in the best interest of the child to order a change of custody? Should it matter whether the son wishes to remain within the Russian Orthodox faith and to avoid a symbolic statement of Jewish religious faith, or simply wishes to avoid the risks associated with elective surgery, or just wishes to avoid what is reputed to be the substantial discomfort associated with the procedure at his
Bloodsucking circumcision
That's the headline Slate gave this story, and it's surprisingly accurate. According to this New York Times article, http://www.nytimes.com/2005/08/26/nyregion/26circumcise.html?adxnnl=1ad xnnlx=1125344508-1l0XYEAQaD0o+O4NL+m3Fw, A circumcision ritual practiced by some Orthodox Jews has alarmed city health officials, who say it may have led to three cases of herpes -- one of them fatal -- in infants. But after months of meetings with Orthodox leaders, city officials have been unable to persuade them to abandon the practice. The city's intervention has angered many Orthodox leaders, and the issue has left the city struggling to balance its mandate to protect public health with the constitutional guarantee of religious freedom. . . . The practice is known as oral suction, or in Hebrew, metzitzah b'peh: after removing the foreskin of the penis, the practitioner, or mohel, sucks the blood from the wound to clean it. It became a health issue after a boy in Staten Island and twins in Brooklyn, circumcised by the same mohel in 2003 and 2004, contracted Type-1 herpes. Most adults carry the disease, which causes the common cold sore, but it can be life-threatening for infants. One of the twins died. . . . The health department, after the meeting, reiterated that it did not intend to ban or regulate oral suction. But Dr. Frieden has said that the city is taking this approach partly because any broad rule would be virtually unenforceable. Circumcision generally takes place in private homes. . . . [T]he most traditionalist groups, including many Hasidic sects in New York, consider oral suction integral to God's covenant with the Jews requiring circumcision, and thus religiously obligated. The prohibition therefore substantially burdens their religious beliefs (whether or not we think these beliefs are sensible). . . . The Orthodox Jewish community will continue the practice that has been practiced for over 5,000 years, said Rabbi David Niederman of the United Jewish Organization in Williamsburg, Brooklyn, after the meeting with the mayor. We do not change. And we will not change. Any thoughts on whether a ban on such oral suction would be proper (assuming that it does indeed pose a danger, though not a vast danger)? Would it be constitutional, if the New York Constitution is interpreted as providing for a Sherbert/Yoder compelled exemption regime (a matter that's currently unsettled)? Eugene ___ 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: Bloodsucking circumcision
In response to Eugene's question, wouldn't a law banning oral suction be subject to the compelling interest test as a hybrid rights case under Smith? That is, such a law would implicate the parent's free exercise rights as well as their parental rights to direct the care and nurture of their children. My recollection is that footnote one in the Smith opinion specifically points to free exercise plus parental rights as an example of a hybrid claim, and the Troxel court identifies the liberty interest . . . of parents in the care, custody, and control of their children [as] perhaps the oldest of the fundamental liberty interests recognized by [the] Court. Even assuming the State had a compelling interest in banning oral suction, a complete ban - as opposed to, say, testing of Rabbis to insure they didn't have Herpes 1 - would appear to fail the narrowly tailored requirement. Gene Summerlin Ogborn, Summerlin Ogborn, P.C. 210 Windsor Place 330 South Tenth Street Lincoln, NE 68508 (402) 434-8040 (402) 434-8044 (facsimile) (402) 730-5344 (mobile) [EMAIL PROTECTED] www.osolaw.com -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Monday, August 29, 2005 5:59 PM To: Law Religion issues for Law Academics Subject: Bloodsucking circumcision That's the headline Slate gave this story, and it's surprisingly accurate. According to this New York Times article, http://www.nytimes.com/2005/08/26/nyregion/26circumcise.html?adxnnl=1ad xnnlx=1125344508-1l0XYEAQaD0o+O4NL+m3Fw, A circumcision ritual practiced by some Orthodox Jews has alarmed city health officials, who say it may have led to three cases of herpes -- one of them fatal -- in infants. But after months of meetings with Orthodox leaders, city officials have been unable to persuade them to abandon the practice. The city's intervention has angered many Orthodox leaders, and the issue has left the city struggling to balance its mandate to protect public health with the constitutional guarantee of religious freedom. . . . The practice is known as oral suction, or in Hebrew, metzitzah b'peh: after removing the foreskin of the penis, the practitioner, or mohel, sucks the blood from the wound to clean it. It became a health issue after a boy in Staten Island and twins in Brooklyn, circumcised by the same mohel in 2003 and 2004, contracted Type-1 herpes. Most adults carry the disease, which causes the common cold sore, but it can be life-threatening for infants. One of the twins died. . . . The health department, after the meeting, reiterated that it did not intend to ban or regulate oral suction. But Dr. Frieden has said that the city is taking this approach partly because any broad rule would be virtually unenforceable. Circumcision generally takes place in private homes. . . . [T]he most traditionalist groups, including many Hasidic sects in New York, consider oral suction integral to God's covenant with the Jews requiring circumcision, and thus religiously obligated. The prohibition therefore substantially burdens their religious beliefs (whether or not we think these beliefs are sensible). . . . The Orthodox Jewish community will continue the practice that has been practiced for over 5,000 years, said Rabbi David Niederman of the United Jewish Organization in Williamsburg, Brooklyn, after the meeting with the mayor. We do not change. And we will not change. Any thoughts on whether a ban on such oral suction would be proper (assuming that it does indeed pose a danger, though not a vast danger)? Would it be constitutional, if the New York Constitution is interpreted as providing for a Sherbert/Yoder compelled exemption regime (a matter that's currently unsettled)? Eugene ___ 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: Bloodsucking circumcision
Title: RE: Bloodsucking circumcision This article from the Forward http://www.forward.com/articles/3871reports (1) the difficulty with the testing alternative because (it claims)90% of the population carries the antibody for herpes; (2) that a temporary restraining order against the mohel who is suspected of spreading herpes has been entered by consent; and (3) the whole matter has become politicized in the upcoming New York City mayoral race. Of course, isn't this politicization exactly which the majority in Smith thought would happen, and thought wasa good idea? *Howard M. Friedman Disting. Univ. ProfessorEmeritusUniversity of Toledo College of LawToledo, OH 43606-3390 Phone: (419) 530-2911, FAX (419) 530-4732 E-mail: [EMAIL PROTECTED] * From: [EMAIL PROTECTED] on behalf of Gene SummerlinSent: Mon 8/29/2005 8:42 PMTo: Law Religion issues for Law AcademicsSubject: RE: "Bloodsucking circumcision" In response to Eugene's question, wouldn't a law banning oral suction besubject to the compelling interest test as a hybrid rights case underSmith? That is, such a law would implicate the parent's free exerciserights as well as their parental rights to direct the care and nurtureof their children. My recollection is that footnote one in the Smithopinion specifically points to free exercise plus parental rights as anexample of a hybrid claim, and the Troxel court identifies "the libertyinterest . . . of parents in the care, custody, and control of theirchildren [as] perhaps the oldest of the fundamental liberty interestsrecognized by [the] Court." Even assuming the State had a compellinginterest in banning oral suction, a complete ban - as opposed to, say,testing of Rabbis to insure they didn't have Herpes 1 - would appear tofail the narrowly tailored requirement.Gene SummerlinOgborn, Summerlin Ogborn, P.C.210 Windsor Place330 South Tenth StreetLincoln, NE 68508(402) 434-8040(402) 434-8044 (facsimile)(402) 730-5344 (mobile)[EMAIL PROTECTED]www.osolaw.com ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
