This raises a fascinating and practically very important question (because there are more than 10 times as many American parents who authorize circumcision for nonreligious reasons than for religious reasons): Do Meyer/Pierce rights extend to the right to raise one's child in the sense of selecting an education for the child, setting behavior rules for the child, choosing a place to live with the child, and so on, or do they also have the constitutional right (not just a common-law right) to physically alter the child's body, including for nonmedical reasons? When I last checked the caselaw on the subject, the Supreme Court cases weren't clear on that. Are there cases I'm missing on that?
To be sure, I agree that parents are generally allowed to let their children put themselves at risk in various ways, such as by playing tackle football and not wearing enough sunscreen. But that doesn't tell us much about whether that's a constitutional right. And indeed I don't think that laws banning child labor, for instance, have been judged as interfering with parental rights (imagine Prince without the religious motivation), even though many such laws (again, imagine Prince) are pretty clearly overbroad. Likewise, I would think that a ban on ear piercing, tattooing, etc. of minors, even when the parents order such actions, would be constitutional, though of course that's part of the dispute between us. Is there dispositive caselaw I'm missing here? Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Thursday, July 05, 2012 7:38 AM To: Law & Religion issues for Law Academics Subject: Re: German circumcision decision We are making this so much more complicated than it has to be. I cannot speak to the particulars of the case in Germany, so I won't try. But in the U.S, we have a longstanding tradition, initially at common law and ultimately in constitutional law (Pierce, Meyer, etc.) of parental control over the upbringing of their children. The state can interfere with that control only for very good reason, and the state bears the burden of persuasion that it has such a reason. Compulsory education, compulsory vaccination, and limiting child labor are the most obvious, specific policies that interfere with those rights of parental control. (Perhaps I'm missing something on that list -- happy to learn of other such specific policies.) Outside of such specific policies, parents (or other lawful guardians) presumptively control decisions about child well-being, unless the parents violate general norms about abuse or neglect. Parents do all sorts of things that put their children's bodies at risk for permanent harm -- letting them play tackle football, go out in the sun all day without enough sunscreen, etc. Whether a particular practice of (more or less permanent) body-altering -- ear-piercing, nose-straightening, orthodonture -- is abusive depends on a social and medical judgment on the actuality of present harm, and in some cases the likelihood of future harm. But two propositions 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.
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