I am wondering if Marci thinks Troxel v. Granville (unconstitutional for legislature to provide for grandparent visitation rights over objection of custodial parent) is correctly decided, or consistent with her views. Her assertion that "Children are increasingly being treated as independent persons whose interests must be examined separately" is awfully vague -- 16 year olds involved in custody fights? What's the context to which you are referring?
Now I have to go watch the Nationals and drink some beer with my younger son -- he'll be 22 in a few weeks. I have a 13 year old grandson coming to visit tomorrow, and I'll have to think twice about offering him a bottle. On Thu, Jul 5, 2012 at 8:19 PM, Marci Hamilton <hamilto...@aol.com> wrote: > I would disagree with Chip that the concept of best interest of the child > continues to afford a presumption that parents act in the best interest of > the child. Children are increasingly being treated as independent persons > whose interests must be examined separately. > > I do agree w Chip, though, that religious reasons should never be adequate > as reasons to water down the best interest inquiry or create a defense in a > case involving harm to a child. > > Marci > > On Jul 5, 2012, at 3:34 PM, Ira Lupu <icl...@law.gwu.edu> wrote: > > Our ordinary, wide-spread, and long-standing presumption is that > parents/guardians act in the best interests of their minor children. The > state may intervene -- overcome that presumption -- when parents/guardians > inflict significant harm on their children. Of course, we can all argue > about what constitutes such harm (e.g., Eric' s example of Amish families > "keeping their children on the farm," or Alan's example of a parent > providing a child with small amounts of alcohol). I am not trying to > settle what constitutes harm sufficient to justify intervention. I am > trying to reject the idea that religion will EVER appropriately affect that > judgment by the state. There is no room for "play in the joints" on these > questions, because the interests of third parties are involved. If the > state singles out religiously motivated conduct for an exemption from a > prohibition on what is otherwise abusive or neglectful, that violates the > Establishment Clause. And if If the state singles out religiously > motivated conduct for punishment in cases where the same conduct with > secular motivation is not considered abusive or neglectful, that violates > the Free Exercise Clause. So, Alan, the answer is yes, both parents who > provide alcohol to their children should have to operate under the same > rules -- if a Jewish parent's Seder practices are OK (and I'm sure that the > vast majority of such parents don't abusively or neglectfully ply their > minor children with alcohol), then likewise for the parent who provides the > same amount of alcohol, over the same number of hours, with the same > frequency on the calendar (once a year). Doing this at every Sabbath, or > every Sunday during NFL season, might be abuse or neglect, but the standard > for state intervention would be the same for both parents. > > On Thu, Jul 5, 2012 at 2:59 PM, Marci Hamilton <hamilto...@aol.com> wrote: > >> I would like some clarification from those relying on purported "parental >> rights." The use of the term "parental right" is freighted w social and >> cultural value but very little legal value. >> >> Pierce v Society of Sisters is balanced by Prince. So the use of "right" >> in this context is a dead end in my view. >> >> The best interest of the child is not in the context of parental rights >> as much as it is intended to treat the child as a separate person who >> deserves protection and respect even in opposition to a parent's demands or >> needs. >> >> Marci >> >> On Jul 5, 2012, at 12:42 PM, Eric Rassbach <erassb...@becketfund.org> >> wrote: >> >> > >> > Eugene -- >> > >> > I don't think this makes sense because it posits an impossible universe >> of zero-risk parenting. It is far riskier to drive your child on the >> freeway (not to mention take him/her skiing, or letting him/her play >> soccer, or play football (esp. in Texas)) than it is to baptize him/her. >> All those risks are well within the set of risks that parents take in the >> normal course of parenting. Indeed, for the state to interfere with the >> ability of parents to expose children to those risks would be a gross >> interference with parental rights. And I imagine that the danger to infants >> from either circumcision or full immersion baptism is far lower than >> driving them around town, though I claim no actuarial expertise on the >> matter. >> > >> > Eric >> > >> > ________________________________________ >> > From: religionlaw-boun...@lists.ucla.edu [ >> religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene [ >> vol...@law.ucla.edu] >> > Sent: Thursday, July 05, 2012 12:31 PM >> > To: Law & Religion issues for Law Academics >> > Subject: RE: Parental rights and physical conduct >> > >> > I appreciate Howard’s point, but the question is: Why >> should some children who by definition do not share a religious belief >> drown – or otherwise be injured – for the sake of the beliefs of the adults >> who do have that belief (and even for the sake of those children who, later >> in life, will wish that they had been so baptized)? I have great sympathy >> for people’s rights to risk their own lives (in the baptism example) or >> alter their own bodies (in the circumcision example) for the sake of their >> religious beliefs, or for that matter for the sake of their secular >> beliefs. But why does it follow that they should have the right to impose >> such risks on others, even others to whom they are genetically linked? >> > >> > Eugene >> > >> > From: religionlaw-boun...@lists.ucla.edu [mailto: >> religionlaw-boun...@lists.ucla.edu] On Behalf Of Friedman, Howard M. >> > Sent: Thursday, July 05, 2012 8:52 AM >> > To: Law & Religion issues for Law Academics >> > Subject: RE: Parental rights and physical conduct >> > >> > >> > What has been absent from all of the discussion on this issue is the >> importance to Jewish belief of circumcision while the son is an infant. >> This ceremony at 8-days of age (except where health precludes it that >> early) is the son's initiation into Jewish peoplehood. Waiting until >> adulthood is not the functional equivalent. Because the case in Germany >> involved a Muslim circumcision at a later age, the issue is muddled. As I >> understand it, Islam has varying views on the proper age for circumcision, >> and even on how important it is. While centrality of religious belief has >> been a factor of declining importance in free exercise cases in recent >> years, here it perhaps should be revived. I think a better analogy for >> trying to come up with a rule is this: >> > >> > Suppose there were a handful of cases in which infants drowned (or >> almost drowned) during full immersion baptism, and a court then ruled that >> because of the danger parents cannot baptize infants. They must wait until >> the child is an adult and then let him or her decide. How would everyone >> come out on that case? >> > >> > Howard Friedman >> > >> > >> > -----Original Message----- >> > From: religionlaw-boun...@lists.ucla.edu<mailto: >> religionlaw-boun...@lists.ucla.edu> on behalf of Volokh, Eugene >> > Sent: Thu 7/5/2012 10:57 AM >> > To: Law & Religion issues for Law Academics >> > Subject: Parental rights and physical conduct >> > >> > 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] 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. >> _______________________________________________ >> 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. > > > _______________________________________________ > 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.
