Medical reasons for action vs. religious reasons for action
Here's an analogy from another area in which the normal rule - one person may not alter or injure another's body without permission - is relaxed: self-defense. Say Vic is doing something that Don perceives as blasphemous, but that might also be dangerous to Don or Don's property. (E.g., say Vic is burning a Koran and saying things that might reasonably lead Don - a Muslim - to think that Vic will imminently injure Don, or that the fire will spread to Don's property.) Vic attacks Don using nondeadly force and injures him. If Don reasonably believed that Vic was about to injure Don, and hit Don to prevent that, Don is not guilty of any crime, by reason of self-defense. But say that the objective circumstances are the same, so that Don could have reasonably believed that Vic was about to injure him, but Don did not actually sincerely believe this. Instead, he says that he attacked Vic because he thought God wanted him to attack Vic. Then Don is guilty of assault; no self-defense defense is available (and I take it that we'd agree that no other defense should be available to him). This rule does not treat religious reasons for hitting Vic worse than secular reasons generally. But it does treat all reasons for hitting Vic worse than one favored secular reason - the perception that Vic poses an imminent danger to Don's person or property. If I'm right on this, then I all think that there's no violation of the norm of equal treatment when we add another reason for allowing one person to alter or injure another's body: that the actor is the subject's parent and has a medical reason for ordering a surgery to the underage child. That the parent has a right to alter the child's body for medical reasons doesn't mean he has a right to alter the child's body - even when the objective circumstances seem the same - for nonmedical reasons, including religious ones. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Vance R. Koven Sent: Thursday, July 05, 2012 7:09 AM To: Law Religion issues for Law Academics Subject: Re: German circumcision decision OK, let's turn this around again. I don't follow Eugene's reasoning here. If I do for religious reasons what anyone else could do for secular reasons, why should this be penalized? Seems like a fundamental equal-treatment issue. On the second paragraph, Eugene is correct that my point went to institutional competence and legitimacy. I have little faith in courts to divine a social or moral consensus that isn't heavily biased in favor of whatever the upper middle class (the category into which most judges fall) thinks it knows. In the absence of an affirmative policy decision by elected representatives, therefore, the rule of decision that imposes the least harm to the polity ought to be that tradition carries prima facie probative weight. This is especially true in criminal cases, where the standard of statutory interpretation requires that crimes be clearly specified--none of this do no harm generalizing! On Wed, Jul 4, 2012 at 4:24 PM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: 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
Re: Medical reasons for action vs. religious reasons for action
I'm not sure who the we is in Eugene's hypothesis, but nobody is proposing to add anything to defenses, since it's the existence of the * offense* that is under discussion. Nobody contests that the crime of murder, or attempted murder, exists with a rather precise definition. There is as yet no crime of circumcision. Moreover, in looking at the two situations, it's obvious that the defense of self-defense (which derives from the same unalienable right to life to which the crime of murder speaks) contains a mental state within its definition, as does the crime of murder. If there were a similar mental state in the crime of circumcision (e.g. removing someone else's foreskin with the intent to do grievous bodily harm), then one might say that the normal circumcision would never violate the law, and if the perpetrator did have the requisite intent, claiming religious justification might well not suffice as a defense. Of course, a legislature creating a crime of circumcision could decide to allow medical exemptions but not to allow a religious one (RFRA arguments, anyone? Would *Lukumi* apply?), but I still think that would be merely a trap for the unwary defendant who fails to allege medical motives. On Thu, Jul 5, 2012 at 10:46 AM, Volokh, Eugene vol...@law.ucla.edu wrote: Here’s an analogy from another area in which the normal rule – one person may not alter or injure another’s body without permission – is relaxed: self-defense. ** ** Say Vic is doing something that Don perceives as blasphemous, but that might also be dangerous to Don or Don’s property. (E.g., say Vic is burning a Koran and saying things that might reasonably lead Don – a Muslim – to think that Vic will imminently injure Don, or that the fire will spread to Don’s property.) Vic attacks Don using nondeadly force and injures him. ** ** If Don reasonably believed that Vic was about to injure Don, and hit Don to prevent that, Don is not guilty of any crime, by reason of self-defense. But say that the objective circumstances are the same, so that Don *could have* reasonably believed that Vic was about to injure him, but Don *did not actually sincerely believe this*. Instead, he says that he attacked Vic because he thought God wanted him to attack Vic. Then Don is guilty of assault; no self-defense defense is available (and I take it that we’d agree that no other defense should be available to him). This rule does not treat religious reasons for hitting Vic worse than secular reasons generally. But it does treat all reasons for hitting Vic worse than one favored secular reason – the perception that Vic poses an imminent danger to Don’s person or property. ** ** If I’m right on this, then I all think that there’s no violation of the norm of equal treatment when we add another reason for allowing one person to alter or injure another’s body: that the actor is the subject’s parent and has a medical reason for ordering a surgery to the underage child. That the parent has a right to alter the child’s body for medical reasons doesn’t mean he has a right to alter the child’s body – even when the objective circumstances seem the same – for nonmedical reasons, including religious ones. ** ** Eugene ** ** ** ** *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Vance R. Koven *Sent:* Thursday, July 05, 2012 7:09 AM *To:* Law Religion issues for Law Academics *Subject:* Re: German circumcision decision ** ** OK, let's turn this around again. I don't follow Eugene's reasoning here. If I do for religious reasons what anyone else could do for secular reasons, why should this be penalized? Seems like a fundamental equal-treatment issue. On the second paragraph, Eugene is correct that my point went to institutional competence and legitimacy. I have little faith in courts to divine a social or moral consensus that isn't heavily biased in favor of whatever the upper middle class (the category into which most judges fall) thinks it knows. In the absence of an affirmative policy decision by elected representatives, therefore, the rule of decision that imposes the least harm *to the polity* ought to be that tradition carries prima facie probative weight. This is especially true in criminal cases, where the standard of statutory interpretation requires that crimes be clearly specified--none of this do no harm generalizing! On Wed, Jul 4, 2012 at 4:24 PM, Volokh, Eugene vol...@law.ucla.edu wrote: 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
Medical reasons for action vs. religious reasons for action
The question, I think, isn't whether there should be a crime of circumcision as such. Rather, the question is whether the normal crime of mayhem, assault, battery, or child abuse - whatever label a particular jurisdiction would use for cutting off a part of an infant's body - should have as a defense (1) categorical parental prerogative, at least when it comes to circumcision (I'm the parent and I can cut off certain parts of the child's body for any reason I choose), (2) religious parental prerogative (I'm the parent and I can cut off certain parts of the child's body if I think God wants me to), or (3) medical parental decision (I'm the parent and I can make medical decisions for the child, within broad parameters, even if that includes cutting off certain parts of the child's body, based on my good-faith estimate of the costs and benefits of a procedure). I'm inclined to think that defense 2 is improper (for some of the reasons Chip gives), that defense 1 is proper only for actions that are highly unlikely to affect future bodily function (which male circumcision might or might not qualify, and which ear piercing does qualify as), and defense 3 is proper for actions that are fairly likely to affect future bodily function. And the analogy to self-defense helps explain why defense 3 is proper even though it treats medical reasons as better than all other reasons, including religious ones. Eugene From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Vance R. Koven Sent: Thursday, July 05, 2012 11:05 AM To: Law Religion issues for Law Academics Subject: Re: Medical reasons for action vs. religious reasons for action I'm not sure who the we is in Eugene's hypothesis, but nobody is proposing to add anything to defenses, since it's the existence of the offense that is under discussion. Nobody contests that the crime of murder, or attempted murder, exists with a rather precise definition. There is as yet no crime of circumcision. Moreover, in looking at the two situations, it's obvious that the defense of self-defense (which derives from the same unalienable right to life to which the crime of murder speaks) contains a mental state within its definition, as does the crime of murder. If there were a similar mental state in the crime of circumcision (e.g. removing someone else's foreskin with the intent to do grievous bodily harm), then one might say that the normal circumcision would never violate the law, and if the perpetrator did have the requisite intent, claiming religious justification might well not suffice as a defense. Of course, a legislature creating a crime of circumcision could decide to allow medical exemptions but not to allow a religious one (RFRA arguments, anyone? Would Lukumi apply?), but I still think that would be merely a trap for the unwary defendant who fails to allege medical motives. On Thu, Jul 5, 2012 at 10:46 AM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: Here's an analogy from another area in which the normal rule - one person may not alter or injure another's body without permission - is relaxed: self-defense. Say Vic is doing something that Don perceives as blasphemous, but that might also be dangerous to Don or Don's property. (E.g., say Vic is burning a Koran and saying things that might reasonably lead Don - a Muslim - to think that Vic will imminently injure Don, or that the fire will spread to Don's property.) Vic attacks Don using nondeadly force and injures him. If Don reasonably believed that Vic was about to injure Don, and hit Don to prevent that, Don is not guilty of any crime, by reason of self-defense. But say that the objective circumstances are the same, so that Don could have reasonably believed that Vic was about to injure him, but Don did not actually sincerely believe this. Instead, he says that he attacked Vic because he thought God wanted him to attack Vic. Then Don is guilty of assault; no self-defense defense is available (and I take it that we'd agree that no other defense should be available to him). This rule does not treat religious reasons for hitting Vic worse than secular reasons generally. But it does treat all reasons for hitting Vic worse than one favored secular reason - the perception that Vic poses an imminent danger to Don's person or property. If I'm right on this, then I all think that there's no violation of the norm of equal treatment when we add another reason for allowing one person to alter or injure another's body: that the actor is the subject's parent and has a medical reason for ordering a surgery to the underage child. That the parent has a right to alter the child's body for medical reasons doesn't mean he has a right to alter the child's body - even
