Isn't the key problem precisely that the claimed "religious
liberty ... of the family" here refers to the claimed religious liberty of one
individual to alter the body of a different individual? And I don't see why
that is a normatively appealing "liberty," given that it impinges on the
"autonomy" of the child, and of the adult that the child will become. One day,
the infant will become a man, and that man might not accept Judaism (or Islam).
He might then ask of the rest of us, "Why did you allow these people - my
parents, to be sure, but still people other than me - to cut off part of my
body, and a part that I think would have been quite valuable to me? Just
because they believed that God wanted this? Well, I couldn't believe that
then, and I don't believe it now. Where was your concern for my autonomy then?"
Eugene
Alan Brownstein writes:
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan Brownstein
Sent: Thursday, July 05, 2012 11:21 AM
To: Law & Religion issues for Law Academics
Subject: RE: Parental rights and physical conduct
I thought we were long past the argument that the only basis for protecting
religious liberty was that the state had a favorable perspective on the
religious belief and practice at issue -- whether it is saving a child's soul
through baptism or fulfilling the obligation to circumcise an 8 day old Jewish
boy.
There are clear cases where the state can and should intervene to prevent child
abuse or the imposition of unacceptable risks of harm on children -- whatever
the parents motivation might be. No religious liberty exemption should be
granted in such circumstances. Indeed, as Chip suggests, exemptions of this
kind might well violate the Establishment Clause.
But there are many other cases where the state exercises considerable
discretion in deciding whether it should intervene and limit parental
authority. The constitutional interest of parents in controlling the education
and upbringing of their children is poorly defined and reasonable people would
disagree on its scope and application in particular cases. In those cases, if I
understand Chip correctly (and I appologize if if I have misunderstood his
point), the fact that that a religious obligation or practice is involved
should be irrelevent in deciding whether the state should intervene.
If the burden of a religion specific accommodation for individuals does not
violate the Establishment Clause, and clearly some religion specific
accommodations that burden third parties satisfy that standard, we accept some
such accommodations as permissible protection of the religious individuals
autonomy and identity. Why isn't something like that analysis appropriate when
we are discussing the autonomy and identity of religious families?
Obviously, we can disagree about whether any specific accommodation of
religious parents and families should be provided -- but why should we insist
that the religious liberty and identity of the family has no bearing on these
issues?
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