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.edu<mailto: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>
> [mailto:religionlaw-<mailto:religionlaw-boun...@lists.ucla.edu>
> 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
> <vol...@law.ucla.edu<mailto:vol...@law.ucla.edu<mailto:vol...@law.ucla.edu%3cmailto: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-<mailto:religionlaw-boun...@lists.ucla.edu%3cmailto:religionlaw-boun...@lists.ucla.edu>
> boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu%3cmailto:religionlaw-boun...@lists.ucla.edu>>
>
> [mailto:religionlaw-<mailto:religionlaw-boun...@lists.ucla.edu%3cmailto:religionlaw-boun...@lists.ucla.edu%3e>
> boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu><mailto:religionlaw-boun...@lists.ucla.edu%3cmailto:religionlaw-boun...@lists.ucla.edu%3e>]
> 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
> _______________________________________________
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