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. ________________________________________ From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu [icl...@law.gwu.edu] Sent: Thursday, July 05, 2012 11:07 AM To: Law & Religion issues for Law Academics Subject: Re: Parental rights and physical conduct 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<mailto: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> [mailto: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<mailto: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.
