I don't know why we should be limited to the particulars of Supreme Court decisions when we think about this. I suggest that the approach I outlined is deeply embedded in the statutory and judge-made law of all the states. And, if I'm right about, then the relevant constitutional doctrines of substantive due process liberty would indeed give great weight to that long-standing and wide-spread legal tradition (Troxel v. Granville).
On Thu, Jul 5, 2012 at 10:57 AM, Volokh, Eugene <vol...@law.ucla.edu> wrote: > This raises a fascinating and practically very important > question (because there are more than 10 times as many American parents who > authorize circumcision for nonreligious reasons than for religious > reasons): Do Meyer/Pierce rights extend to the right to raise one’s child > in the sense of selecting an education for the child, setting behavior > rules for the child, choosing a place to live with the child, and so on, or > do they also have the constitutional right (not just a common-law right) to > physically alter the child’s body, including for nonmedical reasons? When > I last checked the caselaw on the subject, the Supreme Court cases weren’t > clear on that. Are there cases I’m missing on that?**** > > ** ** > > To be sure, I agree that parents are generally allowed to > let their children put themselves at risk in various ways, such as by > playing tackle football and not wearing enough sunscreen. But that doesn’t > tell us much about whether that’s a *constitutional* right. And indeed I > don’t think that laws banning child labor, for instance, have been judged > as interfering with parental rights (imagine *Prince *without the > religious motivation), even though many such laws (again, imagine *Prince*) > are pretty clearly overbroad. Likewise, I would think that a ban on ear > piercing, tattooing, etc. of minors, even when the parents order such > actions, would be constitutional, though of course that’s part of the > dispute between us.**** > > ** ** > > Is there dispositive caselaw I’m missing here?**** > > ** ** > > Eugene**** > > ** ** > > *From:* religionlaw-boun...@lists.ucla.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. **** > > _______________________________________________ > 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. > -- Ira C. Lupu F. Elwood & Eleanor Davis Professor of Law, Emeritus George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg
_______________________________________________ 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.
