As long as it is a case-by-case analysis, I am on board. But I think the presumption of religion as good is folly for the vulnerable.
Marci On Jul 10, 2012, at 10:10 AM, Andrew M M Koppelman <akoppel...@law.northwestern.edu> wrote: > 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. _______________________________________________ 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.
