I said that the value of religion sometimes outweighs other considerations. I didn't say it always does so. Marci has compiled some mighty persuasive horror stories showing that the balance is often struck with excessive deference to religion. But that doesn't answer the circumcision question. In that context, it's doubtful whether the child is harmed at all, and the religious values on the other side are substantial. ________________________________________ From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of hamilto...@aol.com [hamilto...@aol.com] Sent: Monday, July 09, 2012 10:36 AM To: religionlaw@lists.ucla.edu Subject: Re: What religion is an 8-day-old?
With all due respect to Andrew, but in complete seriousness, religion is often not a good thing even under the law, and often a deadly and permanently disfiguring or disabling thing for children, the disabled, and emotionally disabled adults. A focus on religion as a "good thing" rather than a focus on the best interest of the child is precisely what has led to the deep suffering of far too many children. I find it astonishing that anyone would still be talking in this era in these generalities to protect religion when it is harming children. Now, if one wants to argue that religion is good when it is not harming the vulnerable, that is a different topic, but it has nothing to do with the circumcision debate that has gone on on this thread, which has revolved basically around a fact question: is it harmful, even though a fair amount of theory has surrounded this fact discussion. Having said that, I also agree that much of this discussion has had an unreal quality to it, but mainly because of my original point that these issues are best described and analyzed under a best interest of the child analysis, case-by-case, and simply not amenable to these theoretical generalities. And under our pre-existing criminal and tort laws. Those are the laws that have held religious organizations and leaders (e.g., Msgr. Lynn) to account for the cover up of serial child predators to protect religious identity, wealth, and power. These civil laws are the main reason we have any justice in this field. This law has not treated religion as "valuable" or "good" but rather as a no-good defense to harm. (Except in a diminishing number of states.) And it is no argument in response that no religious groups believe in child sex abuse. That is not true, e.g., Tony Alamo (yes, it's a cult, still a religion); FLDS, and the many religious organizations who have theological tenets requiring the cover up of abuse which then multiplies the number of victims by enabling predators. There are some legal areans where religion has been treated as "good," e.g., NY state law on land use. But it is dangerous to legal analysis to take them at face value. As religious land use has changed and expanded, however, this presumption has become increasingly difficult to defend. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com<mailto:hamilto...@aol.com> -----Original Message----- From: Andrew M M Koppelman <akoppel...@law.northwestern.edu> To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> Sent: Mon, Jul 9, 2012 10:42 am Subject: RE: What religion is an 8-day-old? This discussion is fascinating, but it has a curiously unreal quality, because everyone seems to want, in typically lawyerly fashion, to subsume under some broad and generally applicable principle a practice that is in fact unique and exceedingly unlikely to generate analogous cases. This is another case where I think it's helpful to recognize that American law treats religion as valuable, in a way that sometimes outweighs other considerations. I elaborate in my forthcoming book: http://www.hup.harvard.edu/catalog.php?isbn=9780674066465. If religion is a good thing, and two of the major religions of America practice circumcision, then we have a strong reason not to interfere. This, I think, is what is actually going on, not the application of some Wechslerian neutral principle about parental rights or individual religious rights or whatever. This discussion has made clear that neither of those principles fits the practice in question very well. ________________________________ From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>] on behalf of Volokh, Eugene [vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>] Sent: Monday, July 09, 2012 9:12 AM To: Law & Religion issues for Law Academics Subject: What religion is an 8-day-old? The theoretical principle behind my claim that, “As to ‘the sons' own interest in conforming to their religion,’ I don't think it's ‘their religion’ at age 8 days, at least under what should be the secular legal system's understanding of religion (the subject's own belief system),” is simply that, under the First Amendment and under equal protection principles, any special treatment of people based on their religion must stem from their religious beliefs – their own understanding of God’s commands – and not because of their bloodlines. First, the justifications for religious freedom have generally stemmed from the burden that is imposed on people when they are ordered by secular law to do something and feel ordered by their religious beliefs to do the opposite. And it is the individual’s beliefs that are important, not to the beliefs of the group to which society says he “belongs.” See, e.g., Thomas v. Review Bd. Second, claims that we should treat some people’s interests differently because of the ethnic group to which their mothers belonged conflicts with well-established equal protection principles, under which our secular rights and interests are not supposed to be affected by our ethnicity. 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 Paul Horwitz Sent: Monday, July 09, 2012 5:35 AM To: Law & Religion issues for Law Academics Subject: RE: Equivocal evidence, and the right to choose I am also curious about roughly the same point Howard raises. I always value the doctrine- and act-specific discussions I get on this list--I learn a great deal from them, and the theory I can more or less do on my own. But these discussions often seem to me to be just one step away from fairly major and consequential statements or assumptions about the underlying theory. So what is driving Eugene's paragaph (2), or some of the other statements (not just from Eugene) that have taken place in the course of this valuable discussion? Is it a moral intuition? A belief, as the paragraph below indicates, both that we have a "secular legal system" and about what that entails? A belief about the Constitution itself and what it requires? A belief in a wholly individualist and voluntarist conception of the self as a legal subject? A kind of implication that the Constitution enacts Mill's On Liberty or Joel Feinberg's work and not, say, Charles Taylor's work? A thin or thick conception of what "harm" means? A belief about the relevance or irrelevance of history, tradition, community, the sources of or proper occasions for thick commitments? I appreciate that these are large questions. And in many particular fact-based cases what I loosely call my common-sense intuitions *might* comport with Eugene's views. But it seems to me, as I wrote earlier, that there are some fairly large theoretical commitments guiding those intuitions here and that they are reasonably subject to questioning. Paul Horwitz University of Alabama School of Law ________________________________ Subject: RE: Equivocal evidence, and the right to choose Date: Sun, 8 Jul 2012 13:08:57 -0400 From: howard.fried...@utoledo.edu<mailto:howard.fried...@utoledo.edu> To: religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu> It seems to me that your paragraph (2) focuses the issue. Should the Free Exercise clause understand "religion" only as a belief system? Traditional Judaism does not define it that way. Instead (for those who are born of a Jewish mother) it is an identity that precedes a belief system. Can the 1st Amendment be seen as protecting a concept of religion that is different from the Christian notion that belief (acceptance of Jesus) defines religion? It was the insistence on seeing religion as only a belief system that led to the controversial decision by the Supreme Court of the United Kingdom in 2009 that ruled Jewish schools using the Orthodox Jewish definition of "who is a Jew" were engaged in "ethnic origin" discrimination (which British law equates with racial discrimination). Howard Friedman -----Original Message----- From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> on behalf of Volokh, Eugene Sent: Sun 7/8/2012 12:29 AM To: Law & Religion issues for Law Academics Subject: RE: Equivocal evidence, and the right to choose (1) I'm not sure why A's interest in B's religion should give A the right to alter B's body - even if A is B's parent. (2) As to "the sons' own interest in conforming to their religion," I don't think it's "their religion" at age 8 days, at least under what should be the secular legal system's understanding of religion (the subject's own belief system). Eugene _______________________________________________ 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. _______________________________________________ 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.
