date:20120705

We are making this so much more complicated than it has to be.  I cannot
speak to the particulars of the case in Germany, so I won't try.  But in
the U.S, we have a longstanding tradition, initially at common law and
ultimately in constitutional law (Pierce, Meyer, etc.) of parental control
over the upbringing of their children.  The state can interfere with that
control only for very good reason, and the state bears the burden of
persuasion that it has such a reason.  Compulsory education, compulsory
vaccination, and limiting child labor are the most obvious, specific
policies that interfere with those rights of parental control.  (Perhaps
I'm missing something on that list -- happy to learn of other such specific
policies.)  Outside of such specific policies, parents (or other lawful
guardians) presumptively control decisions about child well-being, unless
the parents violate general norms about abuse or neglect.

Parents do all sorts of things that put their children's bodies at risk for
permanent harm --  letting them play tackle football, go out in the sun all
day without enough sunscreen, etc. Whether a particular practice of (more
or less permanent) body-altering -- ear-piercing, nose-straightening,
orthodonture -- is abusive depends on a social and medical judgment on the
actuality of present harm, and in some cases the likelihood of future
harm.

But two propositions control our approach to this -- 1) all
parents/guardians have the same rights and face the same limits (religious
motivation adds or subtracts nothing to parental rights); 2) the state has
the burden of proof that a practice is abusive.  So, when reasonable people
can and do differ about the social, medical, or hygienic benefits of a
practice --as is obviously the case with infant male circumcision -- the
state cannot meet its burden of showing the practice is abusive.  The
presence or absence of religious motivation for the practice may explain
parents' behavior, or a faith community's concerns, but -- when the rights
of children are at stake - the state should be constitutionally indifferent
to that motivation.  If the practice is abusive, the state should make its
best efforts to put an end to it; if it cannot be shown to be abusive,
everyone is free to engage in it.   And liberty -- not religious liberty,
but liberty generally -- resides in the initial allocation of power to
parents/guardians, and the assignment of the burden of proof of abusiveness
to the authorities.

On Thu, Jul 5, 2012 at 10:08 AM, Vance R. Koven vrko...@gmail.com wrote:

 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.eduwrote:

 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

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: German circumcision decision

2012-07-05 Thread Marty Lederman

 Chip writes that under our tradition (without regard to religious
liberty), the state has the burden of proof that a practice is abusive.
So, when reasonable people can and do differ about the social, medical, or
hygienic benefits of a practice --as is obviously the case with infant male
circumcision -- the state cannot meet its burden of showing the practice is
abusive.

I wonder whether this fairly describes our tradition -- let alone any
constitutional requirement.  Chip's suggestion is not just that the state
has the burden of proof by a preponderance, but that the state must
demonstrate in some much more compelling way that the practice is, on the
whole, harmful -- presumably such that reasonable people will no longer
differ on the question.  But as long as it's a subject of reasonable
disputation, we should or must defer to parents.

Is this true, as a descriptive matter of how our law has progressed?  Is
there any case law to support it?  (Not rhetorical questions -- I genuinely
don't know.)

What makes this case appear easy to me is that (i) this is the rare case
where almost (but not quite all) of the purported harms and benefits will
occur only in adulthood; (ii) this is also a case in which the decision
can't or shouldn't be postponed until adulthood; where (iii) as far as I
know, the majority of men who have been circumsized -- even for *
nonreligious* reasons -- are at least neutral, if not pleased, about the
decision their parents made (in contrast with, e.g., women who have been
subject to genital mutilation); and where (iv) there's no consensus yet of
severe health or other negative consequences.  I'm not sure what this all
means for *constitutional* doctrine; but it sure does lead me to think that
a legislature (or court) ought not intervene as long as these four things
are true.

If, on the other hand, many or the majority of men were to become outraged
about the decisions their parents made several decades earlier, would it
really be the case then that the state should continue to defer to parents
until there's a greater societal consensus -- indeed, until reasonable
people no longer disagree?

On Thu, Jul 5, 2012 at 10:37 AM, Ira Lupu icl...@law.gwu.edu wrote:

 We are making this so much more complicated than it has to be.  I cannot
 speak to the particulars of the case in Germany, so I won't try.  But in
 the U.S, we have a longstanding tradition, initially at common law and
 ultimately in constitutional law (Pierce, Meyer, etc.) of parental control
 over the upbringing of their children.  The state can interfere with that
 control only for very good reason, and the state bears the burden of
 persuasion that it has such a reason.  Compulsory education, compulsory
 vaccination, and limiting child labor are the most obvious, specific
 policies that interfere with those rights of parental control.  (Perhaps
 I'm missing something on that list -- happy to learn of other such specific
 policies.)  Outside of such specific policies, parents (or other lawful
 guardians) presumptively control decisions about child well-being, unless
 the parents violate general norms about abuse or neglect.

 Parents do all sorts of things that put their children's bodies at risk
 for permanent harm --  letting them play tackle football, go out in the sun
 all day without enough sunscreen, etc. Whether a particular practice of
 (more or less permanent) body-altering -- ear-piercing, nose-straightening,
 orthodonture -- is abusive depends on a social and medical judgment on the
 actuality of present harm, and in some cases the likelihood of future
 harm.

 But two propositions control our approach to this -- 1) all
 parents/guardians have the same rights and face the same limits (religious
 motivation adds or subtracts nothing to parental rights); 2) the state has
 the burden of proof that a practice is abusive.  So, when reasonable people
 can and do differ about the social, medical, or hygienic benefits of a
 practice --as is obviously the case with infant male circumcision -- the
 state cannot meet its burden of showing the practice is abusive.  The
 presence or absence of religious motivation for the practice may explain
 parents' behavior, or a faith community's concerns, but -- when the rights
 of children are at stake - the state should be constitutionally indifferent
 to that motivation.  If the practice is abusive, the state should make its
 best efforts to put an end to it; if it cannot be shown to be abusive,
 everyone is free to engage in it.   And liberty -- not religious liberty,
 but liberty generally -- resides in the initial allocation of power to
 parents/guardians, and the assignment of the burden of proof of abusiveness
 to the authorities.

 On Thu, Jul 5, 2012 at 10:08 AM, Vance R. Koven vrko...@gmail.com wrote:

 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

Parental rights and physical conduct

This raises a fascinating and practically very important 
question (because there are more than 10 times as many American parents who 
authorize circumcision for nonreligious reasons than for religious reasons):  
Do Meyer/Pierce rights extend to the right to raise one's child in the sense of 
selecting an education for the child, setting behavior rules for the child, 
choosing a place to live with the child, and so on, or do they also have the 
constitutional right (not just a common-law right) to physically alter the 
child's body, including for nonmedical reasons?  When I last checked the 
caselaw on the subject, the Supreme Court cases weren't clear on that.  Are 
there cases I'm missing on that?

To be sure, I agree that parents are generally allowed to let 
their children put themselves at risk in various ways, such as by playing 
tackle football and not wearing enough sunscreen.  But that doesn't tell us 
much about whether that's a constitutional right.  And indeed I don't think 
that laws banning child labor, for instance, have been judged as interfering 
with parental rights (imagine Prince without the religious motivation), even 
though many such laws (again, imagine Prince) are pretty clearly overbroad.  
Likewise, I would think that a ban on ear piercing, tattooing, etc. of minors, 
even when the parents order such actions, would be constitutional, though of 
course that's part of the dispute between us.

Is there dispositive caselaw I'm missing here?

Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Thursday, July 05, 2012 7:38 AM
To: Law  Religion issues for Law Academics
Subject: Re: German circumcision decision

We are making this so much more complicated than it has to be.  I cannot speak 
to the particulars of the case in Germany, so I won't try.  But in the U.S, we 
have a longstanding tradition, initially at common law and ultimately in 
constitutional law (Pierce, Meyer, etc.) of parental control over the 
upbringing of their children.  The state can interfere with that control only 
for very good reason, and the state bears the burden of persuasion that it has 
such a reason.  Compulsory education, compulsory vaccination, and limiting 
child labor are the most obvious, specific policies that interfere with those 
rights of parental control.  (Perhaps I'm missing something on that list -- 
happy to learn of other such specific policies.)  Outside of such specific 
policies, parents (or other lawful guardians) presumptively control decisions 
about child well-being, unless the parents violate general norms about abuse or 
neglect.

Parents do all sorts of things that put their children's bodies at risk for 
permanent harm --  letting them play tackle football, go out in the sun all day 
without enough sunscreen, etc. Whether a particular practice of (more or less 
permanent) body-altering -- ear-piercing, nose-straightening, orthodonture -- 
is abusive depends on a social and medical judgment on the actuality of present 
harm, and in some cases the likelihood of future harm.

But two propositions control our approach to this -- 1) all parents/guardians 
have the same rights and face the same limits (religious motivation adds or 
subtracts nothing to parental rights); 2) the state has the burden of proof 
that a practice is abusive.  So, when reasonable people can and do differ about 
the social, medical, or hygienic benefits of a practice --as is obviously the 
case with infant male circumcision -- the state cannot meet its burden of 
showing the practice is abusive.  The presence or absence of religious 
motivation for the practice may explain parents' behavior, or a faith 
community's concerns, but -- when the rights of children are at stake - the 
state should be constitutionally indifferent to that motivation.  If the 
practice is abusive, the state should make its best efforts to put an end to 
it; if it cannot be shown to be abusive, everyone is free to engage in it.   
And liberty -- not religious liberty, but liberty generally -- resides in the 
initial allocation of power to parents/guardians, and the assignment of the 
burden of proof of abusiveness to the authorities.
___
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.

Re: Parental rights and physical conduct

I don't know why we should be limited to the particulars of Supreme Court
decisions when we think about this.  I suggest that the approach I outlined
is deeply embedded in the statutory and judge-made law of all the states.
And, if I'm right about, then the relevant constitutional doctrines of
substantive due process liberty would indeed give great weight to that
long-standing and wide-spread legal tradition (Troxel v. Granville).

On Thu, Jul 5, 2012 at 10:57 AM, Volokh, Eugene vol...@law.ucla.edu wrote:

 This raises a fascinating and practically very important
 question (because there are more than 10 times as many American parents who
 authorize circumcision for nonreligious reasons than for religious
 reasons):  Do Meyer/Pierce rights extend to the right to raise one’s child
 in the sense of selecting an education for the child, setting behavior
 rules for the child, choosing a place to live with the child, and so on, or
 do they also have the constitutional right (not just a common-law right) to
 physically alter the child’s body, including for nonmedical reasons?  When
 I last checked the caselaw on the subject, the Supreme Court cases weren’t
 clear on that.  Are there cases I’m missing on that?

 ** **

 To be sure, I agree that parents are generally allowed to
 let their children put themselves at risk in various ways, such as by
 playing tackle football and not wearing enough sunscreen.  But that doesn’t
 tell us much about whether that’s a *constitutional* right.  And indeed I
 don’t think that laws banning child labor, for instance, have been judged
 as interfering with parental rights (imagine *Prince *without the
 religious motivation), even though many such laws (again, imagine *Prince*)
 are pretty clearly overbroad.  Likewise, I would think that a ban on ear
 piercing, tattooing, etc. of minors, even when the parents order such
 actions, would be constitutional, though of course that’s part of the
 dispute between us.

 ** **

 Is there dispositive caselaw I’m missing here?

 ** **

 Eugene

 ** **

 *From:* religionlaw-boun...@lists.ucla.edu [mailto:
 religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Ira Lupu
 *Sent:* Thursday, July 05, 2012 7:38 AM
 *To:* Law  Religion issues for Law Academics
 *Subject:* Re: German circumcision decision

 ** **

 We are making this so much more complicated than it has to be.  I cannot
 speak to the particulars of the case in Germany, so I won't try.  But in
 the U.S, we have a longstanding tradition, initially at common law and
 ultimately in constitutional law (Pierce, Meyer, etc.) of parental control
 over the upbringing of their children.  The state can interfere with that
 control only for very good reason, and the state bears the burden of
 persuasion that it has such a reason.  Compulsory education, compulsory
 vaccination, and limiting child labor are the most obvious, specific
 policies that interfere with those rights of parental control.  (Perhaps
 I'm missing something on that list -- happy to learn of other such specific
 policies.)  Outside of such specific policies, parents (or other lawful
 guardians) presumptively control decisions about child well-being, unless
 the parents violate general norms about abuse or neglect.

 Parents do all sorts of things that put their children's bodies at risk
 for permanent harm --  letting them play tackle football, go out in the sun
 all day without enough sunscreen, etc. Whether a particular practice of
 (more or less permanent) body-altering -- ear-piercing, nose-straightening,
 orthodonture -- is abusive depends on a social and medical judgment on the
 actuality of present harm, and in some cases the likelihood of future
 harm.

 But two propositions control our approach to this -- 1) all
 parents/guardians have the same rights and face the same limits (religious
 motivation adds or subtracts nothing to parental rights); 2) the state has
 the burden of proof that a practice is abusive.  So, when reasonable people
 can and do differ about the social, medical, or hygienic benefits of a
 practice --as is obviously the case with infant male circumcision -- the
 state cannot meet its burden of showing the practice is abusive.  The
 presence or absence of religious motivation for the practice may explain
 parents' behavior, or a faith community's concerns, but -- when the rights
 of children are at stake - the state should be constitutionally indifferent
 to that motivation.  If the practice is abusive, the state should make its
 best efforts to put an end to it; if it cannot be shown to be abusive,
 everyone is free to engage in it.   And liberty -- not religious liberty,
 but liberty generally -- resides in the initial allocation of power to
 parents/guardians, and the assignment of the burden of proof of abusiveness
 to the authorities.

 ___
 To post, send message

Amish vs English law

2012-07-05 Thread Leslie Ruth

Hi, looking for any case law in this country where the rights of the non 
custodial parent (English) were trumped by the custodial parent (Amish).  If 
anyone could send me some case citings I can look them up myself.   Thanks so 
much.
___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
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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.

RE: Amish vs English law

2012-07-05 Thread Leslie Ruth

Or any cases where only one religion/belief  was awarded by the court to the 
parent who has custody over the right of the other parent to be a 
parentthanks so much

From: Leslie Ruth
Sent: Thursday, July 05, 2012 11:11 AM
To: 'religionlaw@lists.ucla.edu'
Subject: Amish vs English law

Hi, looking for any case law in this country where the rights of the non 
custodial parent (English) were trumped by the custodial parent (Amish).  If 
anyone could send me some case citings I can look them up myself.   Thanks so 
much.
___
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.

RE: Parental rights and physical conduct

2012-07-05 Thread Friedman, Howard M.

What has been absent from all of the discussion on this issue is the importance 
to Jewish belief of circumcision while the son is an infant. This ceremony at 
8-days of age (except where health precludes it that early) is the son's 
initiation into Jewish peoplehood. Waiting until adulthood is not the 
functional equivalent. Because the case in Germany involved a Muslim 
circumcision at a later age, the issue is muddled.  As I understand it, Islam 
has varying views on the proper age for circumcision, and even on how important 
it is. While centrality of religious belief has been a factor of declining 
importance in free exercise cases in recent years, here it perhaps should be 
revived. I think a better analogy for trying to come up with a rule is this:

Suppose there were a handful of cases in which infants drowned (or almost 
drowned) during full immersion baptism, and a court then ruled that because of 
the danger parents cannot baptize infants. They must wait until the child is an 
adult and then let him or her decide.  How would everyone come out on that case?

Howard Friedman 


-Original Message-
From: religionlaw-boun...@lists.ucla.edu on behalf of Volokh, Eugene
Sent: Thu 7/5/2012 10:57 AM
To: Law  Religion issues for Law Academics
Subject: Parental rights and physical conduct
 
This raises a fascinating and practically very important 
question (because there are more than 10 times as many American parents who 
authorize circumcision for nonreligious reasons than for religious reasons):  
Do Meyer/Pierce rights extend to the right to raise one's child in the sense of 
selecting an education for the child, setting behavior rules for the child, 
choosing a place to live with the child, and so on, or do they also have the 
constitutional right (not just a common-law right) to physically alter the 
child's body, including for nonmedical reasons?  When I last checked the 
caselaw on the subject, the Supreme Court cases weren't clear on that.  Are 
there cases I'm missing on that?

To be sure, I agree that parents are generally allowed to let 
their children put themselves at risk in various ways, such as by playing 
tackle football and not wearing enough sunscreen.  But that doesn't tell us 
much about whether that's a constitutional right.  And indeed I don't think 
that laws banning child labor, for instance, have been judged as interfering 
with parental rights (imagine Prince without the religious motivation), even 
though many such laws (again, imagine Prince) are pretty clearly overbroad.  
Likewise, I would think that a ban on ear piercing, tattooing, etc. of minors, 
even when the parents order such actions, would be constitutional, though of 
course that's part of the dispute between us.

Is there dispositive caselaw I'm missing here?

Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Thursday, July 05, 2012 7:38 AM
To: Law  Religion issues for Law Academics
Subject: Re: German circumcision decision

We are making this so much more complicated than it has to be.  I cannot speak 
to the particulars of the case in Germany, so I won't try.  But in the U.S, we 
have a longstanding tradition, initially at common law and ultimately in 
constitutional law (Pierce, Meyer, etc.) of parental control over the 
upbringing of their children.  The state can interfere with that control only 
for very good reason, and the state bears the burden of persuasion that it has 
such a reason.  Compulsory education, compulsory vaccination, and limiting 
child labor are the most obvious, specific policies that interfere with those 
rights of parental control.  (Perhaps I'm missing something on that list -- 
happy to learn of other such specific policies.)  Outside of such specific 
policies, parents (or other lawful guardians) presumptively control decisions 
about child well-being, unless the parents violate general norms about abuse or 
neglect.

Parents do all sorts of things that put their children's bodies at risk for 
permanent harm --  letting them play tackle football, go out in the sun all day 
without enough sunscreen, etc. Whether a particular practice of (more or less 
permanent) body-altering -- ear-piercing, nose-straightening, orthodonture -- 
is abusive depends on a social and medical judgment on the actuality of present 
harm, and in some cases the likelihood of future harm.

But two propositions control our approach to this -- 1) all parents/guardians 
have the same rights and face the same limits (religious motivation adds or 
subtracts nothing to parental rights); 2) the state has the burden of proof 
that a practice is abusive.  So, when reasonable people can and do differ about 
the social, medical, or hygienic benefits of a practice --as is obviously the 
case with infant male circumcision -- the state cannot meet its burden of 
showing the practice

RE: Parental rights and physical conduct

I appreciate Howard's point, but the question is:  Why should 
some children who by definition do not share a religious belief drown - or 
otherwise be injured - for the sake of the beliefs of the adults who do have 
that belief (and even for the sake of those children who, later in life, will 
wish that they had been so baptized)?  I have great sympathy for people's 
rights to risk their own lives (in the baptism example) or alter their own 
bodies (in the circumcision example) for the sake of their religious beliefs, 
or for that matter for the sake of their secular beliefs.  But why does it 
follow that they should have the right to impose such risks on others, even 
others to whom they are genetically linked?

Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Friedman, Howard M.
Sent: Thursday, July 05, 2012 8:52 AM
To: Law  Religion issues for Law Academics
Subject: RE: Parental rights and physical conduct


What has been absent from all of the discussion on this issue is the importance 
to Jewish belief of circumcision while the son is an infant. This ceremony at 
8-days of age (except where health precludes it that early) is the son's 
initiation into Jewish peoplehood. Waiting until adulthood is not the 
functional equivalent. Because the case in Germany involved a Muslim 
circumcision at a later age, the issue is muddled.  As I understand it, Islam 
has varying views on the proper age for circumcision, and even on how important 
it is. While centrality of religious belief has been a factor of declining 
importance in free exercise cases in recent years, here it perhaps should be 
revived. I think a better analogy for trying to come up with a rule is this:

Suppose there were a handful of cases in which infants drowned (or almost 
drowned) during full immersion baptism, and a court then ruled that because of 
the danger parents cannot baptize infants. They must wait until the child is an 
adult and then let him or her decide.  How would everyone come out on that case?

Howard Friedman


-Original Message-
From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
on behalf of Volokh, Eugene
Sent: Thu 7/5/2012 10:57 AM
To: Law  Religion issues for Law Academics
Subject: Parental rights and physical conduct

This raises a fascinating and practically very important 
question (because there are more than 10 times as many American parents who 
authorize circumcision for nonreligious reasons than for religious reasons):  
Do Meyer/Pierce rights extend to the right to raise one's child in the sense of 
selecting an education for the child, setting behavior rules for the child, 
choosing a place to live with the child, and so on, or do they also have the 
constitutional right (not just a common-law right) to physically alter the 
child's body, including for nonmedical reasons?  When I last checked the 
caselaw on the subject, the Supreme Court cases weren't clear on that.  Are 
there cases I'm missing on that?

To be sure, I agree that parents are generally allowed to let 
their children put themselves at risk in various ways, such as by playing 
tackle football and not wearing enough sunscreen.  But that doesn't tell us 
much about whether that's a constitutional right.  And indeed I don't think 
that laws banning child labor, for instance, have been judged as interfering 
with parental rights (imagine Prince without the religious motivation), even 
though many such laws (again, imagine Prince) are pretty clearly overbroad.  
Likewise, I would think that a ban on ear piercing, tattooing, etc. of minors, 
even when the parents order such actions, would be constitutional, though of 
course that's part of the dispute between us.

Is there dispositive caselaw I'm missing here?

Eugene

From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Thursday, July 05, 2012 7:38 AM
To: Law  Religion issues for Law Academics
Subject: Re: German circumcision decision

We are making this so much more complicated than it has to be.  I cannot speak 
to the particulars of the case in Germany, so I won't try.  But in the U.S, we 
have a longstanding tradition, initially at common law and ultimately in 
constitutional law (Pierce, Meyer, etc.) of parental control over the 
upbringing of their children.  The state can interfere with that control only 
for very good reason, and the state bears the burden of persuasion that it has 
such a reason.  Compulsory education, compulsory vaccination, and limiting 
child labor are the most obvious, specific policies that interfere with those 
rights of parental control.  (Perhaps I'm missing something on that list -- 
happy to learn of other such specific policies.)  Outside of such specific 
policies,

RE: Parental rights and physical conduct


I would add to Chip's point that almost all of these cases would arise in state 
court rather than federal court since they would for the most part deal with 
domestic relations issues or state law tort claims. 

See for example, In re Marriage of Boldt, 344 Or. 1, 176 P.3d 388 (Ore. 2008):


Although the parties and amici have presented extensive material regarding 
circumcision, we do not need to *12 decide in this case **394 which side has 
presented a more persuasive case regarding the medical risks or benefits of 
male circumcision. We conclude that, although circumcision is an invasive 
medical procedure that results in permanent physical alteration of a body part 
and has attendant medical risks, the decision to have a male child circumcised 
for medical or religious reasons is one that is commonly and historically made 
by parents in the United States. We also conclude that the decision to 
circumcise a male child is one that generally falls within a custodial parent's 
authority, unfettered by a noncustodial parent's concerns or beliefs—medical, 
religious or otherwise. Were mother's concerns or beliefs regarding 
circumcision all that were asserted in the affidavits in this case, we would 
conclude that mother did not carry her initial statutory burden to demonstrate 
a sufficient change in circumstances demonstrating father's inability to 
properly care for M.

However, in this case, mother has averred in her affidavit that M objects to 
the circumcision.FN8 In our view, at age 12, M's attitude regarding 
circumcision, though not conclusive of the custody issue presented here, is a 
fact necessary to the determination of whether mother has asserted a colorable 
claim of a change of circumstances sufficient to warrant a hearing concerning 
whether to change custody. That is so because forcing M at age 12 to undergo 
the circumcision against his will could seriously affect the relationship 
between M and father, and could have a pronounced effect on father's capability 
to properly care for M. See Greisamer, 276 Or. at 400, 555 P.2d 28 
(illustrating proposition). Thus, if mother's assertions are verified the trial 
court would be entitled to reconsider custody. As to that inquiry, however, we 
think that no decision should be made without some assessment of M's true state 
of mind. That conclusion dictates the outcome here.







From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
On Behalf Of Ira Lupu [icl...@law.gwu.edu]
Sent: Thursday, July 05, 2012 11:07 AM
To: Law  Religion issues for Law Academics
Subject: Re: Parental rights and physical conduct

I don't know why we should be limited to the particulars of Supreme Court 
decisions when we think about this.  I suggest that the approach I outlined is 
deeply embedded in the statutory and judge-made law of all the states.  And, if 
I'm right about, then the relevant constitutional doctrines of substantive due 
process liberty would indeed give great weight to that long-standing and 
wide-spread legal tradition (Troxel v. Granville).

On Thu, Jul 5, 2012 at 10:57 AM, Volokh, Eugene 
vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote:
This raises a fascinating and practically very important 
question (because there are more than 10 times as many American parents who 
authorize circumcision for nonreligious reasons than for religious reasons):  
Do Meyer/Pierce rights extend to the right to raise one’s child in the sense of 
selecting an education for the child, setting behavior rules for the child, 
choosing a place to live with the child, and so on, or do they also have the 
constitutional right (not just a common-law right) to physically alter the 
child’s body, including for nonmedical reasons?  When I last checked the 
caselaw on the subject, the Supreme Court cases weren’t clear on that.  Are 
there cases I’m missing on that?

To be sure, I agree that parents are generally allowed to let 
their children put themselves at risk in various ways, such as by playing 
tackle football and not wearing enough sunscreen.  But that doesn’t tell us 
much about whether that’s a constitutional right.  And indeed I don’t think 
that laws banning child labor, for instance, have been judged as interfering 
with parental rights (imagine Prince without the religious motivation), even 
though many such laws (again, imagine Prince) are pretty clearly overbroad.  
Likewise, I would think that a ban on ear piercing, tattooing, etc. of minors, 
even when the parents order such actions, would be constitutional, though of 
course that’s part of the dispute between us.

Is there dispositive caselaw I’m missing here?

Eugene

From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu]
 On Behalf Of Ira Lupu
Sent: Thursday, July

RE: Parental rights and physical conduct


Eugene --

I don't think this makes sense because it posits an impossible universe of 
zero-risk parenting. It is far riskier to drive your child on the freeway (not 
to mention take him/her skiing, or letting him/her play soccer, or play 
football (esp. in Texas)) than it is to baptize him/her. All those risks are 
well within the set of risks that parents take in the normal course of 
parenting. Indeed, for the state to interfere with the ability of parents to 
expose children to those risks would be a gross interference with parental 
rights. And I imagine that the danger to infants from either circumcision or 
full immersion baptism is far lower than driving them around town, though I 
claim no actuarial expertise on the matter.

Eric
 

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
On Behalf Of Volokh, Eugene [vol...@law.ucla.edu]
Sent: Thursday, July 05, 2012 12:31 PM
To: Law  Religion issues for Law Academics
Subject: RE: Parental rights and physical conduct

I appreciate Howard’s point, but the question is:  Why should 
some children who by definition do not share a religious belief drown – or 
otherwise be injured – for the sake of the beliefs of the adults who do have 
that belief (and even for the sake of those children who, later in life, will 
wish that they had been so baptized)?  I have great sympathy for people’s 
rights to risk their own lives (in the baptism example) or alter their own 
bodies (in the circumcision example) for the sake of their religious beliefs, 
or for that matter for the sake of their secular beliefs.  But why does it 
follow that they should have the right to impose such risks on others, even 
others to whom they are genetically linked?

Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Friedman, Howard M.
Sent: Thursday, July 05, 2012 8:52 AM
To: Law  Religion issues for Law Academics
Subject: RE: Parental rights and physical conduct


What has been absent from all of the discussion on this issue is the importance 
to Jewish belief of circumcision while the son is an infant. This ceremony at 
8-days of age (except where health precludes it that early) is the son's 
initiation into Jewish peoplehood. Waiting until adulthood is not the 
functional equivalent. Because the case in Germany involved a Muslim 
circumcision at a later age, the issue is muddled.  As I understand it, Islam 
has varying views on the proper age for circumcision, and even on how important 
it is. While centrality of religious belief has been a factor of declining 
importance in free exercise cases in recent years, here it perhaps should be 
revived. I think a better analogy for trying to come up with a rule is this:

Suppose there were a handful of cases in which infants drowned (or almost 
drowned) during full immersion baptism, and a court then ruled that because of 
the danger parents cannot baptize infants. They must wait until the child is an 
adult and then let him or her decide.  How would everyone come out on that case?

Howard Friedman


-Original Message-
From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
on behalf of Volokh, Eugene
Sent: Thu 7/5/2012 10:57 AM
To: Law  Religion issues for Law Academics
Subject: Parental rights and physical conduct

This raises a fascinating and practically very important 
question (because there are more than 10 times as many American parents who 
authorize circumcision for nonreligious reasons than for religious reasons):  
Do Meyer/Pierce rights extend to the right to raise one's child in the sense of 
selecting an education for the child, setting behavior rules for the child, 
choosing a place to live with the child, and so on, or do they also have the 
constitutional right (not just a common-law right) to physically alter the 
child's body, including for nonmedical reasons?  When I last checked the 
caselaw on the subject, the Supreme Court cases weren't clear on that.  Are 
there cases I'm missing on that?

To be sure, I agree that parents are generally allowed to let 
their children put themselves at risk in various ways, such as by playing 
tackle football and not wearing enough sunscreen.  But that doesn't tell us 
much about whether that's a constitutional right.  And indeed I don't think 
that laws banning child labor, for instance, have been judged as interfering 
with parental rights (imagine Prince without the religious motivation), even 
though many such laws (again, imagine Prince) are pretty clearly overbroad.  
Likewise, I would think that a ban on ear piercing, tattooing, etc. of minors, 
even when the parents order such actions, would be constitutional, though of 
course that's part of the dispute between us.

Is there dispositive caselaw I'm missing here?

Eugene

From:

Re: Parental rights and physical conduct

I think Howard's baptism example helps make my point, not his.  No one
thinks that full immersion of children in water for a very brief time
(e.g., long enough to quickly rinse shampoo out of their hair, or to give
them a swimming lesson about how to exhale underwater) is abusive per se.
Of course, immersing a child in water with an intent to cause physical or
psychological harm, or immersing a child in water without due care about
the length of time of immersion, could well be actionable as a crime, or as
an act of child abuse, leading to a change in custody.

But none of those policies about parents' rights to immerse the child has
anything to do with the salvation of the children's souls.  The parents and
faith community may care deeply about the fate of those souls, but the
state is different -- it is barred from taking a view of the effect of
immersion on a child's soul.  So the rules (immerse if you choose, but use
due care, and don't immerse with an intent to cause secular harm) are
completely indifferent to religious motivation of the parties.   And a
religion-specific accommodation of such a practice -- i.e., full immersion
of a very young child for 90 seconds is per se abusive, unless it's being
done for purposes of baptism -- would be unconstitutional, because it would
impose a serious risk of harm on non-consenting third parties (the
children).  See Estate of Thornton v. Caldor.



On Thu, Jul 5, 2012 at 12:31 PM, Volokh, Eugene vol...@law.ucla.edu wrote:

 I appreciate Howard’s point, but the question is:  Why
 should some children who by definition *do not* share a religious belief
 drown – or otherwise be injured – for the sake of the beliefs of the adults
 who do have that belief (and even for the sake of those children who, later
 in life, will wish that they had been so baptized)?  I have great sympathy
 for people’s rights to risk *their own* lives (in the baptism example) or
 alter their own bodies (in the circumcision example) for the sake of their
 religious beliefs, or for that matter for the sake of their secular
 beliefs.  But why does it follow that they should have the right to impose
 such risks on others, even others to whom they are genetically linked?

 ** **

 Eugene

 ** **

 *From:* religionlaw-boun...@lists.ucla.edu [mailto:
 religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Friedman, Howard M.
 *Sent:* Thursday, July 05, 2012 8:52 AM

 *To:* Law  Religion issues for Law Academics
 *Subject:* RE: Parental rights and physical conduct

 ** **

 What has been absent from all of the discussion on this issue is the
 importance to Jewish belief of circumcision while the son is an infant.
 This ceremony at 8-days of age (except where health precludes it that
 early) is the son's initiation into Jewish peoplehood. Waiting until
 adulthood is not the functional equivalent. Because the case in Germany
 involved a Muslim circumcision at a later age, the issue is muddled.  As I
 understand it, Islam has varying views on the proper age for circumcision,
 and even on how important it is. While centrality of religious belief has
 been a factor of declining importance in free exercise cases in recent
 years, here it perhaps should be revived. I think a better analogy for
 trying to come up with a rule is this:

 Suppose there were a handful of cases in which infants drowned (or almost
 drowned) during full immersion baptism, and a court then ruled that because
 of the danger parents cannot baptize infants. They must wait until the
 child is an adult and then let him or her decide.  How would everyone come
 out on that case?

 Howard Friedman


 -Original Message-
 From: religionlaw-boun...@lists.ucla.edu on behalf of Volokh, Eugene
 Sent: Thu 7/5/2012 10:57 AM
 To: Law  Religion issues for Law Academics
 Subject: Parental rights and physical conduct

 This raises a fascinating and practically very important
 question (because there are more than 10 times as many American parents who
 authorize circumcision for nonreligious reasons than for religious
 reasons):  Do Meyer/Pierce rights extend to the right to raise one's child
 in the sense of selecting an education for the child, setting behavior
 rules for the child, choosing a place to live with the child, and so on, or
 do they also have the constitutional right (not just a common-law right) to
 physically alter the child's body, including for nonmedical reasons?  When
 I last checked the caselaw on the subject, the Supreme Court cases weren't
 clear on that.  Are there cases I'm missing on that?

 To be sure, I agree that parents are generally allowed to
 let their children put themselves at risk in various ways, such as by
 playing tackle football and not wearing enough sunscreen.  But that doesn't
 tell us much about whether that's a constitutional right.  And indeed I
 don't think that laws banning child labor, for instance, have been judged
 as

Re: Medical reasons for action vs. religious reasons for action

2012-07-05 Thread Vance R. Koven

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

RE: Parental rights and physical conduct

2012-07-05 Thread Alan Brownstein

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?



Alan


























From: religionlaw-bounces+aebrownstein=ucdavis@lists.ucla.edu 
[religionlaw-bounces+aebrownstein=ucdavis@lists.ucla.edu] on behalf of Ira 
Lupu [icl...@law.gwu.edu]
Sent: Thursday, July 05, 2012 9:50 AM
To: Law  Religion issues for Law Academics
Subject: Re: Parental rights and physical conduct

I think Howard's baptism example helps make my point, not his.  No one thinks 
that full immersion of children in water for a very brief time (e.g., long 
enough to quickly rinse shampoo out of their hair, or to give them a swimming 
lesson about how to exhale underwater) is abusive per se.  Of course, immersing 
a child in water with an intent to cause physical or psychological harm, or 
immersing a child in water without due care about the length of time of 
immersion, could well be actionable as a crime, or as an act of child abuse, 
leading to a change in custody.

But none of those policies about parents' rights to immerse the child has 
anything to do with the salvation of the children's souls.  The parents and 
faith community may care deeply about the fate of those souls, but the state is 
different -- it is barred from taking a view of the effect of immersion on a 
child's soul.  So the rules (immerse if you choose, but use due care, and don't 
immerse with an intent to cause secular harm) are completely indifferent to 
religious motivation of the parties.   And a religion-specific accommodation of 
such a practice -- i.e., full immersion of a very young child for 90 seconds is 
per se abusive, unless it's being done for purposes of baptism -- would be 
unconstitutional, because it would impose a serious risk of harm on 
non-consenting third parties (the children).  See Estate of Thornton v. Caldor.



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RE: Parental rights and physical conduct

2012-07-05 Thread Brian Landsberg

Let me try again.  The discussion has focused on the rights of the parents and 
of the state.  The children have come into the discussion only as objects of 
control or protection by the parents or state; that is the context of the best 
interests of the child standard.  But isn't the state depriving most newborn 
Jewish males of a right when it bans circumcision of children?  Of course, the 
infant does not have capacity to exercise his right, so the law generally 
declares the parent rather than the state as a surrogate decision-maker.  At 
least at the policy level isn't that ordinarily the proper allocation of 
responsibility?

Brian K. Landsberg
Distinguished Professor and Scholar
Pacific McGeorge School of Law
3200 Fifth Avenue, Sacramento CA 95817
916 739-7103

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?



Alan


























From: 
religionlaw-bounces+aebrownstein=ucdavis@lists.ucla.edumailto:religionlaw-bounces+aebrownstein=ucdavis@lists.ucla.edu
 [religionlaw-bounces+aebrownstein=ucdavis@lists.ucla.edu] on behalf of Ira 
Lupu [icl...@law.gwu.edu]
Sent: Thursday, July 05, 2012 9:50 AM
To: Law  Religion issues for Law Academics
Subject: Re: Parental rights and physical conduct
I think Howard's baptism example helps make my point, not his.  No one thinks 
that full immersion of children in water for a very brief time (e.g., long 
enough to quickly rinse shampoo out of their hair, or to give them a swimming 
lesson about how to exhale underwater) is abusive per se.  Of course, immersing 
a child in water with an intent to cause physical or psychological harm, or 
immersing a child in water without due care about the length of time of 
immersion, could well be actionable as a crime, or as an act of child abuse, 
leading to a change in custody.

But none of those policies about parents' rights to immerse the child has 
anything to do with the salvation of the children's souls.  The parents and 
faith community may care deeply about the fate of those souls, but the state is 
different -- it is barred from taking a view of the effect of immersion on a 
child's soul.  So the rules (immerse if you choose, but use due care, and don't 
immerse with an intent to cause secular harm) are completely indifferent to 
religious motivation of the parties.   And a religion-specific accommodation of 
such a practice -- i.e., full immersion of a very young child for 90 seconds is 
per se abusive, unless it's being done for purposes of baptism -- would be 
unconstitutional, because it would impose a serious risk of harm on 
non-consenting third parties (the children).  See Estate of Thornton v. Caldor.


___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe,

Re: Parental rights and physical conduct

In the context of abuse of children, religion just does not and should not
matter to the state. There are three general cases:

1. The conduct is abusive per se (e.g., repeated and heavy beatings of a
child). We don't and should not care whether the perpetrator claims
religious justification.

2. The conduct is not abusive per se, but is done in an abusive or
neglectful way (e.g., immersion in water with intent to harm, or without
due care regarding the risk of harm). Once more, we don't and should not
care whether the perpetrator claims religious justification. If the
conduct is abusive or neglectful, it may have legal consequences, and
religious motivation should not alter those consequences.

3. The conduct is neither abusive per se, nor is it done with intent to
harm, or without due care regarding the risk of harm. Whether we like or
admire this conduct, parents have the right to engage in it. Once more,
for legal purposes, we don't and should not care whether the parent claims
religious justification. Of course, for social purposes we might care --
that is, perhaps we would not be as critical once we understood the
religious motivation. But that point of social awareness is outside the
concern of the state.

So, when, if ever, would religious motivation properly move some conduct by
parents towards children either in or out of the categories of abuse or
neglect? I still don't see it, which is why I have said this is about
liberty, and not at all about religious liberty.

--
*From:*
religionlaw-bounces+aebrownstein=ucdavis@lists.ucla.edu[religionlaw-bounces+aebrownstein=
ucdavis@lists.ucla.edu] on behalf of Ira Lupu [icl...@law.gwu.edu]
*Sent:* Thursday, July 05, 2012 9:50 AM

*To:* Law Religion issues for Law Academics
*Subject:* Re: Parental rights and physical conduct

I think Howard's baptism example helps make my point, not his. No one
thinks that full immersion of children in water for a very brief time
(e.g., long enough to quickly rinse shampoo out of their hair, or to give
them a swimming lesson about how to exhale underwater) is abusive per se.
Of course, immersing a child in water with an intent to cause physical or
psychological harm, or immersing a child in water without due care about
the length of time of immersion, could well be actionable as a crime, or as
an act of child abuse, leading to a change in custody.

But none of those policies about parents' rights to immerse the child has
anything to do with the salvation of the children's souls. The parents and
faith community may care deeply about the fate of those souls, but the
state is different -- it is barred from taking a view of the effect of
immersion on a child's soul. So the rules (immerse if you choose, but use
due care, and don't immerse with an intent to cause secular harm) are
completely indifferent to religious motivation of the parties. And a
religion-specific accommodation of such a practice -- i.e., full immersion
of a very young child for 90 seconds is per se abusive, unless it's being
done for purposes of baptism -- would be unconstitutional, because it would
impose a serious risk of harm on non-consenting third parties (the
children). See Estate of Thornton v. Caldor.

___
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--
Ira C. Lupu
F. Elwood Eleanor Davis Professor of Law, Emeritus
George Washington University Law School
2000 H St., NW
Washington, DC 20052
(202)994-7053
My SSRN papers are here:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg
___
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To subscribe, unsubscribe, change options, or get password, see
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RE: Parental rights and physical conduct


What kind of conduct are you talking about in category 3? Some people will 
say that keeping kids on the farm instead of sending them to school is abusive 
or harmful. Cf. Yoder. I don't think you can define the category simply as 
abuse neglect or harm because all kinds of parenting activities, 
including those at issue in Yoder, Pierce, etc. will be claimed as 
abusive/neglectful/harmful to the child. 



From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
On Behalf Of Ira Lupu [icl...@law.gwu.edu]
Sent: Thursday, July 05, 2012 2:42 PM
To: Law  Religion issues for Law Academics
Subject: Re: Parental rights and physical conduct

In the context of abuse of children, religion just does not and should not 
matter to the state.  There are three general cases:

1.  The conduct is abusive per se (e.g., repeated and heavy beatings of a 
child).   We don't and should not care whether the perpetrator claims religious 
justification.

2.  The conduct is not abusive per se, but is done in an abusive or neglectful 
way (e.g., immersion in water with intent to harm, or without due care 
regarding the risk of harm).  Once more, we don't and should not care whether 
the perpetrator claims religious justification.  If the conduct is abusive or 
neglectful, it may have legal consequences, and religious motivation should not 
alter those consequences.

3.  The conduct is neither abusive per se, nor is it done with intent to harm, 
or without due care regarding the risk of harm.  Whether we like or admire this 
conduct, parents have the right to engage in it.  Once more, for legal 
purposes, we don't and should not care whether the parent claims religious 
justification.  Of course, for social purposes we might care -- that is, 
perhaps we would not be as critical once we understood the religious 
motivation.  But that point of social awareness is outside the concern of the 
state.

So, when, if ever, would religious motivation properly move some conduct by 
parents towards children either in or out of the categories of abuse or 
neglect?  I still don't see it, which is why I have said this is about liberty, 
and not at all about religious liberty.


























From: 
religionlaw-bounces+aebrownstein=ucdavis@lists.ucla.edumailto:ucdavis@lists.ucla.edu
 
[religionlaw-bounces+aebrownstein=ucdavis@lists.ucla.edumailto:ucdavis@lists.ucla.edu]
 on behalf of Ira Lupu [icl...@law.gwu.edumailto:icl...@law.gwu.edu]
Sent: Thursday, July 05, 2012 9:50 AM

To: Law  Religion issues for Law Academics
Subject: Re: Parental rights and physical conduct

I think Howard's baptism example helps make my point, not his.  No one thinks 
that full immersion of children in water for a very brief time (e.g., long 
enough to quickly rinse shampoo out of their hair, or to give them a swimming 
lesson about how to exhale underwater) is abusive per se.  Of course, immersing 
a child in water with an intent to cause physical or psychological harm, or 
immersing a child in water without due care about the length of time of 
immersion, could well be actionable as a crime, or as an act of child abuse, 
leading to a change in custody.

But none of those policies about parents' rights to immerse the child has 
anything to do with the salvation of the children's souls.  The parents and 
faith community may care deeply about the fate of those souls, but the state is 
different -- it is barred from taking a view of the effect of immersion on a 
child's soul.  So the rules (immerse if you choose, but use due care, and don't 
immerse with an intent to cause secular harm) are completely indifferent to 
religious motivation of the parties.   And a religion-specific accommodation of 
such a practice -- i.e., full immersion of a very young child for 90 seconds is 
per se abusive, unless it's being done for purposes of baptism -- would be 
unconstitutional, because it would impose a serious risk of harm on 
non-consenting third parties (the children).  See Estate of Thornton v. Caldor.




___
To post, send message to 
Religionlaw@lists.ucla.edumailto: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.



--
Ira C. Lupu
F. Elwood  Eleanor Davis Professor of Law, Emeritus
George Washington University Law School
2000 H St., NW
Washington, DC 20052
(202)994-7053
My SSRN papers are here:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg
___
To post, send message to

RE: Parental rights and physical conduct

2012-07-05 Thread Alan Brownstein

If we could categorize all state action into these three categories, life would 
be a lot easier. But the parameters of case 2 are incredibly unclear as to what 
constitutes due care regarding the risk of harm. Say a state enacts a law 
prohibiting adults from providing minors alcoholic beverages. If this is 
category 3, there is no religious liberty issue because the law unacceptably 
interefers with the parents' rights.



But what if a state concludes that this is category 2. Dad A gives his 13 year 
old four glasses of beer while they watch the ball game on television. I give 
my 13 yeal old son four glasses of wine during the Passover Seder. Let's assume 
there is roughly the same amount of alcohol involved (because the glasses at 
the Seder are small.) We have three choices. Dad A and I are convicted and 
sanctioned for violating the law. The state exempts me for religious liberty 
reasons, but holds Dad A liable. The law is unconstitutonal as applied to both 
of us because it interferes with parental autonomy.



I think the second alternative is constitutional and is the best answer from a 
policy perspective. Chip, are you saying that the only permissible alternatives 
are both fathers going to jail or neither going to jail.



Alan


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Ira Lupu [icl...@law.gwu.edu]
Sent: Thursday, July 05, 2012 11:42 AM
To: Law  Religion issues for Law Academics
Subject: Re: Parental rights and physical conduct

In the context of abuse of children, religion just does not and should not 
matter to the state.  There are three general cases:

1.  The conduct is abusive per se (e.g., repeated and heavy beatings of a 
child).   We don't and should not care whether the perpetrator claims religious 
justification.

2.  The conduct is not abusive per se, but is done in an abusive or neglectful 
way (e.g., immersion in water with intent to harm, or without due care 
regarding the risk of harm).  Once more, we don't and should not care whether 
the perpetrator claims religious justification.  If the conduct is abusive or 
neglectful, it may have legal consequences, and religious motivation should not 
alter those consequences.

3.  The conduct is neither abusive per se, nor is it done with intent to harm, 
or without due care regarding the risk of harm.  Whether we like or admire this 
conduct, parents have the right to engage in it.  Once more, for legal 
purposes, we don't and should not care whether the parent claims religious 
justification.  Of course, for social purposes we might care -- that is, 
perhaps we would not be as critical once we understood the religious 
motivation.  But that point of social awareness is outside the concern of the 
state.

So, when, if ever, would religious motivation properly move some conduct by 
parents towards children either in or out of the categories of abuse or 
neglect?  I still don't see it, which is why I have said this is about liberty, 
and not at all about religious liberty.


























From: 
religionlaw-bounces+aebrownstein=ucdavis@lists.ucla.edumailto:ucdavis@lists.ucla.edu
 
[religionlaw-bounces+aebrownstein=ucdavis@lists.ucla.edumailto:ucdavis@lists.ucla.edu]
 on behalf of Ira Lupu [icl...@law.gwu.edumailto:icl...@law.gwu.edu]
Sent: Thursday, July 05, 2012 9:50 AM

To: Law  Religion issues for Law Academics
Subject: Re: Parental rights and physical conduct

I think Howard's baptism example helps make my point, not his.  No one thinks 
that full immersion of children in water for a very brief time (e.g., long 
enough to quickly rinse shampoo out of their hair, or to give them a swimming 
lesson about how to exhale underwater) is abusive per se.  Of course, immersing 
a child in water with an intent to cause physical or psychological harm, or 
immersing a child in water without due care about the length of time of 
immersion, could well be actionable as a crime, or as an act of child abuse, 
leading to a change in custody.

But none of those policies about parents' rights to immerse the child has 
anything to do with the salvation of the children's souls.  The parents and 
faith community may care deeply about the fate of those souls, but the state is 
different -- it is barred from taking a view of the effect of immersion on a 
child's soul.  So the rules (immerse if you choose, but use due care, and don't 
immerse with an intent to cause secular harm) are completely indifferent to 
religious motivation of the parties.   And a religion-specific accommodation of 
such a practice -- i.e., full immersion of a very young child for 90 seconds is 
per se abusive, unless it's being done for purposes of baptism -- would be 
unconstitutional, because it would impose a serious risk of harm on 
non-consenting third parties (the children).  See Estate of Thornton v. Caldor.

Re: Parental rights and physical conduct

Our ordinary, wide-spread, and long-standing presumption is that
parents/guardians act in the best interests of their minor children.  The
state may intervene -- overcome that presumption -- when parents/guardians
inflict significant harm on their children.  Of course, we can all argue
about what constitutes such harm (e.g., Eric' s example of Amish families
keeping their children on the farm, or Alan's example of a parent
providing a child with small amounts of alcohol).  I am not trying to
settle what constitutes harm sufficient to justify intervention.  I am
trying to reject the idea that religion will EVER appropriately affect that
judgment by the state.  There is no room for play in the joints on these
questions, because the interests of third parties are involved.  If the
state singles out religiously motivated conduct for an exemption from a
prohibition on what is otherwise abusive or neglectful, that violates the
Establishment Clause.  And if If the state singles out religiously
motivated conduct for punishment in cases where the same conduct with
secular motivation is not considered abusive or neglectful, that violates
the Free Exercise Clause.   So, Alan, the answer is yes, both parents who
provide alcohol to their children should have to operate under the same
rules -- if a Jewish parent's Seder practices are OK (and I'm sure that the
vast majority of such parents don't abusively or neglectfully ply their
minor children with alcohol), then likewise for the parent who provides the
same amount of alcohol, over the same number of hours, with the same
frequency on the calendar (once a year).   Doing this at every Sabbath, or
every Sunday during NFL season, might be abuse or neglect, but the standard
for state intervention would be the same for both parents.

On Thu, Jul 5, 2012 at 2:59 PM, Marci Hamilton hamilto...@aol.com wrote:

 I would like some clarification from those relying on purported parental
 rights. The use of the term parental right  is freighted w social and
 cultural value but very little legal value.

 Pierce v Society of Sisters is balanced by Prince.  So the use of right
 in this context is a dead end in my view.

 The best interest of the child is not in the context of parental rights as
 much as it is intended to treat the child as a separate person who deserves
 protection and respect even in opposition to a parent's demands or needs.

 Marci

 On Jul 5, 2012, at 12:42 PM, Eric Rassbach erassb...@becketfund.org
 wrote:

 
  Eugene --
 
  I don't think this makes sense because it posits an impossible universe
 of zero-risk parenting. It is far riskier to drive your child on the
 freeway (not to mention take him/her skiing, or letting him/her play
 soccer, or play football (esp. in Texas)) than it is to baptize him/her.
 All those risks are well within the set of risks that parents take in the
 normal course of parenting. Indeed, for the state to interfere with the
 ability of parents to expose children to those risks would be a gross
 interference with parental rights. And I imagine that the danger to infants
 from either circumcision or full immersion baptism is far lower than
 driving them around town, though I claim no actuarial expertise on the
 matter.
 
  Eric
 
  
  From: religionlaw-boun...@lists.ucla.edu [
 religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene [
 vol...@law.ucla.edu]
  Sent: Thursday, July 05, 2012 12:31 PM
  To: Law  Religion issues for Law Academics
  Subject: RE: Parental rights and physical conduct
 
 I appreciate Howard’s point, but the question is:  Why
 should some children who by definition do not share a religious belief
 drown – or otherwise be injured – for the sake of the beliefs of the adults
 who do have that belief (and even for the sake of those children who, later
 in life, will wish that they had been so baptized)?  I have great sympathy
 for people’s rights to risk their own lives (in the baptism example) or
 alter their own bodies (in the circumcision example) for the sake of their
 religious beliefs, or for that matter for the sake of their secular
 beliefs.  But why does it follow that they should have the right to impose
 such risks on others, even others to whom they are genetically linked?
 
 Eugene
 
  From: religionlaw-boun...@lists.ucla.edu [mailto:
 religionlaw-boun...@lists.ucla.edu] On Behalf Of Friedman, Howard M.
  Sent: Thursday, July 05, 2012 8:52 AM
  To: Law  Religion issues for Law Academics
  Subject: RE: Parental rights and physical conduct
 
 
  What has been absent from all of the discussion on this issue is the
 importance to Jewish belief of circumcision while the son is an infant.
 This ceremony at 8-days of age (except where health precludes it that
 early) is the son's initiation into Jewish peoplehood. Waiting until
 adulthood is not the functional equivalent. Because the case in Germany
 involved a Muslim circumcision at a

RE: Parental rights and physical conduct

2012-07-05 Thread Friedman, Howard M.

Many would argue that it is in the best interest of the child to welcome him 
into a supportive, religious community with shared values and age-old historic 
traditions-- that include circumcision or full immersion baptism or some other 
ritual that might create some small risk of injury (just as almost any activity 
might).  The problem is, how do you decide whether or not this is in the 
child's best interest without a prior value judgment about the religious 
tradition involved? There is no reason to believe that it is in the best 
interest of the child to raise him or her in a cultural or moral vacuum, or 
devoid of traditions which can give structure to his or her life, until the 
child reaches 18.  Of course there are some rituals that create an undue risk 
of harm-- and isn't the question one of how to identify those without imposing 
our own cultural or religious bias on the question of risk?

Howard


-Original Message-
From: religionlaw-boun...@lists.ucla.edu on behalf of Marci Hamilton
Sent: Thu 7/5/2012 2:59 PM
To: Law  Religion issues for Law Academics
Cc: Law  Religion issues for Law Academics
Subject: Re: Parental rights and physical conduct
 
I would like some clarification from those relying on purported parental 
rights. The use of the term parental right  is freighted w social and 
cultural value but very little legal value.

Pierce v Society of Sisters is balanced by Prince.  So the use of right in 
this context is a dead end in my view.

The best interest of the child is not in the context of parental rights as much 
as it is intended to treat the child as a separate person who deserves 
protection and respect even in opposition to a parent's demands or needs.

Marci

On Jul 5, 2012, at 12:42 PM, Eric Rassbach erassb...@becketfund.org wrote:

 
 Eugene --
 
 I don't think this makes sense because it posits an impossible universe of 
 zero-risk parenting. It is far riskier to drive your child on the freeway 
 (not to mention take him/her skiing, or letting him/her play soccer, or play 
 football (esp. in Texas)) than it is to baptize him/her. All those risks are 
 well within the set of risks that parents take in the normal course of 
 parenting. Indeed, for the state to interfere with the ability of parents to 
 expose children to those risks would be a gross interference with parental 
 rights. And I imagine that the danger to infants from either circumcision or 
 full immersion baptism is far lower than driving them around town, though I 
 claim no actuarial expertise on the matter.
 
 Eric
 
 
 From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
 On Behalf Of Volokh, Eugene [vol...@law.ucla.edu]
 Sent: Thursday, July 05, 2012 12:31 PM
 To: Law  Religion issues for Law Academics
 Subject: RE: Parental rights and physical conduct
 
I appreciate Howard's point, but the question is:  Why should 
 some children who by definition do not share a religious belief drown - or 
 otherwise be injured - for the sake of the beliefs of the adults who do have 
 that belief (and even for the sake of those children who, later in life, will 
 wish that they had been so baptized)?  I have great sympathy for people's 
 rights to risk their own lives (in the baptism example) or alter their own 
 bodies (in the circumcision example) for the sake of their religious beliefs, 
 or for that matter for the sake of their secular beliefs.  But why does it 
 follow that they should have the right to impose such risks on others, even 
 others to whom they are genetically linked?
 
Eugene
 
 From: religionlaw-boun...@lists.ucla.edu 
 [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Friedman, Howard M.
 Sent: Thursday, July 05, 2012 8:52 AM
 To: Law  Religion issues for Law Academics
 Subject: RE: Parental rights and physical conduct
 
 
 What has been absent from all of the discussion on this issue is the 
 importance to Jewish belief of circumcision while the son is an infant. This 
 ceremony at 8-days of age (except where health precludes it that early) is 
 the son's initiation into Jewish peoplehood. Waiting until adulthood is not 
 the functional equivalent. Because the case in Germany involved a Muslim 
 circumcision at a later age, the issue is muddled.  As I understand it, Islam 
 has varying views on the proper age for circumcision, and even on how 
 important it is. While centrality of religious belief has been a factor of 
 declining importance in free exercise cases in recent years, here it perhaps 
 should be revived. I think a better analogy for trying to come up with a rule 
 is this:
 
 Suppose there were a handful of cases in which infants drowned (or almost 
 drowned) during full immersion baptism, and a court then ruled that because 
 of the danger parents cannot baptize infants. They must wait until the child 
 is an adult and then let him or her decide.  How would everyone

Re: Parental rights and physical conduct

If Smith's hybrid rights explanation of Yoder is all there is against my
argument that religious motivation should add or subtract nothing from
parental rights to engage in particular child-rearing practices, I'll
happily rest my case.   All I'm suggesting is that once we have a general
set of constitutional rights to protect a practice, religious motivation
for the practice should add or subtract nothing.  The Phelps (in Snyder v.
Phelps) would not be on weaker First A ground if their obnoxious protests
were wholly secular.

The children's rights context may be the strongest one for rejecting
permissive, religion-specific accommodations, because of the third party
harms.  But it's not the only such context, with or without other
enumerated rights in the picture (see Texas Monthly).

On Thu, Jul 5, 2012 at 4:58 PM, Scarberry, Mark 
mark.scarbe...@pepperdine.edu wrote:

 If I recall correctly, the Court in Yoder relied on the free exercise
 clause in holding that the Amish had the right to an exemption from the
 otherwise applicable law with respect to sending children to school.
 Religion does not seem, in the Court’s view, to be irrelevant to parental
 rights. Smith even recognized this in the way it distinguished Yoder.

 ** **

 It is strange to me that a specifically enumerated right to free exercise
 of religion would be reduced to or made subordinate to a religion-neutral
 unenumerated right of parents to control their children’s upbringing.

 ** **

 Of course, if we want to focus on unenumerated rights, I believe the
 Justice with the most restrictive view, Justice Scalia, is willing to
 recognize rights that have been accepted throughout our history, as long as
 we consider “the most specific level at which a relevant tradition
 protecting, or denying protection to, the asserted right can be
 identified.” See Michael H. v. Gerald D. 

 ** **

 Circumcision of male infants for religious or community-maintaining
 purposes has never before, as far as I know, been challenged as being
 something a Jewish family could be prohibited from doing.  It has been
 understood as a part of what is required for a religious community to exist
 and for parents to bring their children into such a community. It is a very
 specific practice that has been recognized in our traditions.

 ** **

 Mark S. Scarberry

 Pepperdine Univ. School of Law

 Malibu, CA 90263

 (310)506-4667

 ** **


___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
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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.

Re: Parental rights and physical conduct

2012-07-05 Thread Marci Hamilton

I would disagree with Chip that the concept of best interest of the child 
continues to afford a presumption that parents act in the best interest of the 
child.  Children are increasingly being treated as independent persons whose 
interests must be examined separately. 

I do agree w Chip, though, that religious reasons should never be adequate as 
reasons to water down the best interest inquiry or create a defense in a case 
involving harm to a child.

Marci

On Jul 5, 2012, at 3:34 PM, Ira Lupu icl...@law.gwu.edu wrote:

 Our ordinary, wide-spread, and long-standing presumption is that 
 parents/guardians act in the best interests of their minor children.  The 
 state may intervene -- overcome that presumption -- when parents/guardians 
 inflict significant harm on their children.  Of course, we can all argue 
 about what constitutes such harm (e.g., Eric' s example of Amish families 
 keeping their children on the farm, or Alan's example of a parent providing 
 a child with small amounts of alcohol).  I am not trying to settle what 
 constitutes harm sufficient to justify intervention.  I am trying to reject 
 the idea that religion will EVER appropriately affect that judgment by the 
 state.  There is no room for play in the joints on these questions, because 
 the interests of third parties are involved.  If the state singles out 
 religiously motivated conduct for an exemption from a prohibition on what is 
 otherwise abusive or neglectful, that violates the Establishment Clause.  And 
 if If the state singles out religiously motivated conduct for punishment in 
 cases where the same conduct with secular motivation is not considered 
 abusive or neglectful, that violates the Free Exercise Clause.   So, Alan, 
 the answer is yes, both parents who provide alcohol to their children should 
 have to operate under the same rules -- if a Jewish parent's Seder practices 
 are OK (and I'm sure that the vast majority of such parents don't abusively 
 or neglectfully ply their minor children with alcohol), then likewise for the 
 parent who provides the same amount of alcohol, over the same number of 
 hours, with the same frequency on the calendar (once a year).   Doing this at 
 every Sabbath, or every Sunday during NFL season, might be abuse or neglect, 
 but the standard for state intervention would be the same for both parents.   
 
 On Thu, Jul 5, 2012 at 2:59 PM, Marci Hamilton hamilto...@aol.com wrote:
 I would like some clarification from those relying on purported parental 
 rights. The use of the term parental right  is freighted w social and 
 cultural value but very little legal value.
 
 Pierce v Society of Sisters is balanced by Prince.  So the use of right in 
 this context is a dead end in my view.
 
 The best interest of the child is not in the context of parental rights as 
 much as it is intended to treat the child as a separate person who deserves 
 protection and respect even in opposition to a parent's demands or needs.
 
 Marci
 
 On Jul 5, 2012, at 12:42 PM, Eric Rassbach erassb...@becketfund.org wrote:
 
 
  Eugene --
 
  I don't think this makes sense because it posits an impossible universe of 
  zero-risk parenting. It is far riskier to drive your child on the freeway 
  (not to mention take him/her skiing, or letting him/her play soccer, or 
  play football (esp. in Texas)) than it is to baptize him/her. All those 
  risks are well within the set of risks that parents take in the normal 
  course of parenting. Indeed, for the state to interfere with the ability of 
  parents to expose children to those risks would be a gross interference 
  with parental rights. And I imagine that the danger to infants from either 
  circumcision or full immersion baptism is far lower than driving them 
  around town, though I claim no actuarial expertise on the matter.
 
  Eric
 
  
  From: religionlaw-boun...@lists.ucla.edu 
  [religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene 
  [vol...@law.ucla.edu]
  Sent: Thursday, July 05, 2012 12:31 PM
  To: Law  Religion issues for Law Academics
  Subject: RE: Parental rights and physical conduct
 
 I appreciate Howard’s point, but the question is:  Why 
  should some children who by definition do not share a religious belief 
  drown – or otherwise be injured – for the sake of the beliefs of the adults 
  who do have that belief (and even for the sake of those children who, later 
  in life, will wish that they had been so baptized)?  I have great sympathy 
  for people’s rights to risk their own lives (in the baptism example) or 
  alter their own bodies (in the circumcision example) for the sake of their 
  religious beliefs, or for that matter for the sake of their secular 
  beliefs.  But why does it follow that they should have the right to impose 
  such risks on others, even others to whom they are genetically linked?
 
 Eugene
 
  From:

RE: Parental rights and physical conduct

2012-07-05 Thread Alan Brownstein

I agree with most of what Chip says about hybrid rights and religious 
accommodation of rights protected activity. As a general principle, religious 
people should not receive preferential accommodations when exercising 
fundamental rights such as freedom of speech, or voting, or the right to marry 
or have children.



Where he and I disagree, I think, is that I do not believe that courts protect 
parental control of the upbringing of children as a right in the same way 
that they protect speech and other fundamental rights. There is far too much 
discretion exercised by the state in this area of law and far too little rigor 
in the review applied to laws that interfere in one way or another with 
parental prerogatives for me to analogize parental autonomy to a fundamental 
right.



Thus, I do not think that parents have a right to provide beer to children 
while watching sporting events on TV as part of a more general liberty interest 
in controlling the upbringing of their children. And I see little reason to 
provide an exemption from laws prohibiting the provision of alcohol to minors 
in this context as a policy matter -- other than the fact that enforcement of a 
no beer for kids rule in family rooms would be intrusive.  I think that 
allowing parents to offer wine to children as part of a religious ceremony is 
different and more defensible because raising one's children as part of a 
religious family is an essential aspect of religious liberty that deserves 
respect and protection.



Put simply, I would want more of a showing that harm exists or is risked before 
I forced parents to violate religious beliefs that involve families and 
children.



Alan


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Ira Lupu [icl...@law.gwu.edu]
Sent: Thursday, July 05, 2012 2:44 PM
To: Law  Religion issues for Law Academics
Subject: Re: Parental rights and physical conduct

If Smith's hybrid rights explanation of Yoder is all there is against my 
argument that religious motivation should add or subtract nothing from parental 
rights to engage in particular child-rearing practices, I'll happily rest my 
case.   All I'm suggesting is that once we have a general set of constitutional 
rights to protect a practice, religious motivation for the practice should add 
or subtract nothing.  The Phelps (in Snyder v. Phelps) would not be on weaker 
First A ground if their obnoxious protests were wholly secular.

The children's rights context may be the strongest one for rejecting 
permissive, religion-specific accommodations, because of the third party harms. 
 But it's not the only such context, with or without other enumerated rights in 
the picture (see Texas Monthly).


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Re: Parental rights and physical conduct

I am wondering if Marci thinks Troxel v. Granville (unconstitutional for
legislature to provide for grandparent visitation rights over objection of
custodial parent) is correctly decided, or consistent with her views. Her
assertion that Children are increasingly being treated as independent
persons whose interests must be examined separately is awfully vague -- 16
year olds involved in custody fights?  What's the context to which you are
referring?

Now I have to go watch the Nationals and drink some beer with my younger
son -- he'll be 22 in a few weeks.  I have a 13 year old grandson coming to
visit tomorrow, and I'll have to think twice about offering him a bottle.

On Thu, Jul 5, 2012 at 8:19 PM, Marci Hamilton hamilto...@aol.com wrote:

 I would disagree with Chip that the concept of best interest of the child
 continues to afford a presumption that parents act in the best interest of
 the child.  Children are increasingly being treated as independent persons
 whose interests must be examined separately.

 I do agree w Chip, though, that religious reasons should never be adequate
 as reasons to water down the best interest inquiry or create a defense in a
 case involving harm to a child.

 Marci

 On Jul 5, 2012, at 3:34 PM, Ira Lupu icl...@law.gwu.edu wrote:

 Our ordinary, wide-spread, and long-standing presumption is that
 parents/guardians act in the best interests of their minor children.  The
 state may intervene -- overcome that presumption -- when parents/guardians
 inflict significant harm on their children.  Of course, we can all argue
 about what constitutes such harm (e.g., Eric' s example of Amish families
 keeping their children on the farm, or Alan's example of a parent
 providing a child with small amounts of alcohol).  I am not trying to
 settle what constitutes harm sufficient to justify intervention.  I am
 trying to reject the idea that religion will EVER appropriately affect that
 judgment by the state.  There is no room for play in the joints on these
 questions, because the interests of third parties are involved.  If the
 state singles out religiously motivated conduct for an exemption from a
 prohibition on what is otherwise abusive or neglectful, that violates the
 Establishment Clause.  And if If the state singles out religiously
 motivated conduct for punishment in cases where the same conduct with
 secular motivation is not considered abusive or neglectful, that violates
 the Free Exercise Clause.   So, Alan, the answer is yes, both parents who
 provide alcohol to their children should have to operate under the same
 rules -- if a Jewish parent's Seder practices are OK (and I'm sure that the
 vast majority of such parents don't abusively or neglectfully ply their
 minor children with alcohol), then likewise for the parent who provides the
 same amount of alcohol, over the same number of hours, with the same
 frequency on the calendar (once a year).   Doing this at every Sabbath, or
 every Sunday during NFL season, might be abuse or neglect, but the standard
 for state intervention would be the same for both parents.

 On Thu, Jul 5, 2012 at 2:59 PM, Marci Hamilton hamilto...@aol.com wrote:

 I would like some clarification from those relying on purported parental
 rights. The use of the term parental right  is freighted w social and
 cultural value but very little legal value.

 Pierce v Society of Sisters is balanced by Prince.  So the use of right
 in this context is a dead end in my view.

 The best interest of the child is not in the context of parental rights
 as much as it is intended to treat the child as a separate person who
 deserves protection and respect even in opposition to a parent's demands or
 needs.

 Marci

 On Jul 5, 2012, at 12:42 PM, Eric Rassbach erassb...@becketfund.org
 wrote:

 
  Eugene --
 
  I don't think this makes sense because it posits an impossible universe
 of zero-risk parenting. It is far riskier to drive your child on the
 freeway (not to mention take him/her skiing, or letting him/her play
 soccer, or play football (esp. in Texas)) than it is to baptize him/her.
 All those risks are well within the set of risks that parents take in the
 normal course of parenting. Indeed, for the state to interfere with the
 ability of parents to expose children to those risks would be a gross
 interference with parental rights. And I imagine that the danger to infants
 from either circumcision or full immersion baptism is far lower than
 driving them around town, though I claim no actuarial expertise on the
 matter.
 
  Eric
 
  
  From: religionlaw-boun...@lists.ucla.edu [
 religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene [
 vol...@law.ucla.edu]
  Sent: Thursday, July 05, 2012 12:31 PM
  To: Law  Religion issues for Law Academics
  Subject: RE: Parental rights and physical conduct
 
 I appreciate Howard’s point, but the question is:  Why
 should some children who by definition

Re: Parental rights and physical conduct

2012-07-05 Thread Marci Hamilton

I do think Troxel and Yoder particularly were wrongly decided.  The more 
egregious was Yoder, which was based on a romantic view of a religious 
community that does not operate in the best interest of the child in far too 
many situations

On the increasing rights of children, I am talking about the sexual abuse 
context generally, but specifically the increasing number of states that now 
reject First Am defenses in the context and the states rolling back the 
indefensible clergy exceptions to child sex abuse reporting.  

I would add to that the slowdown in medical neglect exemptions and the death of 
the ND RFRA by child
Advocates arguing for the welfare of children to defeat a RFRA. 

Finally, the turn around in the criminal justice system in favor of child
victims against priests/bishops (Philly Msgr. Lynn conviction + rejection of 
request for house arrest) and today's acquittal of the victim accused of 
assaulting the priest who sexually assaulted him.

Plus the defensive posture of Brooklyn DA Hynes who cooperated in the rabbis' 
coverup of abuse in the Hasidim community.

The Zeitgeist has shifted decisively in favor of children and against religious 
actors who harm children.   

Marci 

On Jul 5, 2012, at 9:26 PM, Ira Lupu icl...@law.gwu.edu wrote:

 I am wondering if Marci thinks Troxel v. Granville (unconstitutional for 
 legislature to provide for grandparent visitation rights over objection of 
 custodial parent) is correctly decided, or consistent with her views. Her 
 assertion that Children are increasingly being treated as independent 
 persons whose interests must be examined separately is awfully vague -- 16 
 year olds involved in custody fights?  What's the context to which you are 
 referring?
 
 Now I have to go watch the Nationals and drink some beer with my younger son 
 -- he'll be 22 in a few weeks.  I have a 13 year old grandson coming to visit 
 tomorrow, and I'll have to think twice about offering him a bottle.
 
 On Thu, Jul 5, 2012 at 8:19 PM, Marci Hamilton hamilto...@aol.com wrote:
 I would disagree with Chip that the concept of best interest of the child 
 continues to afford a presumption that parents act in the best interest of 
 the child.  Children are increasingly being treated as independent persons 
 whose interests must be examined separately. 
 
 I do agree w Chip, though, that religious reasons should never be adequate as 
 reasons to water down the best interest inquiry or create a defense in a case 
 involving harm to a child.
 
 Marci
 
 On Jul 5, 2012, at 3:34 PM, Ira Lupu icl...@law.gwu.edu wrote:
 
 Our ordinary, wide-spread, and long-standing presumption is that 
 parents/guardians act in the best interests of their minor children.  The 
 state may intervene -- overcome that presumption -- when parents/guardians 
 inflict significant harm on their children.  Of course, we can all argue 
 about what constitutes such harm (e.g., Eric' s example of Amish families 
 keeping their children on the farm, or Alan's example of a parent 
 providing a child with small amounts of alcohol).  I am not trying to settle 
 what constitutes harm sufficient to justify intervention.  I am trying to 
 reject the idea that religion will EVER appropriately affect that judgment 
 by the state.  There is no room for play in the joints on these questions, 
 because the interests of third parties are involved.  If the state singles 
 out religiously motivated conduct for an exemption from a prohibition on 
 what is otherwise abusive or neglectful, that violates the Establishment 
 Clause.  And if If the state singles out religiously motivated conduct for 
 punishment in cases where the same conduct with secular motivation is not 
 considered abusive or neglectful, that violates the Free Exercise Clause.   
 So, Alan, the answer is yes, both parents who provide alcohol to their 
 children should have to operate under the same rules -- if a Jewish parent's 
 Seder practices are OK (and I'm sure that the vast majority of such parents 
 don't abusively or neglectfully ply their minor children with alcohol), then 
 likewise for the parent who provides the same amount of alcohol, over the 
 same number of hours, with the same frequency on the calendar (once a year). 
   Doing this at every Sabbath, or every Sunday during NFL season, might be 
 abuse or neglect, but the standard for state intervention would be the same 
 for both parents.   
 
 On Thu, Jul 5, 2012 at 2:59 PM, Marci Hamilton hamilto...@aol.com wrote:
 I would like some clarification from those relying on purported parental 
 rights. The use of the term parental right  is freighted w social and 
 cultural value but very little legal value.
 
 Pierce v Society of Sisters is balanced by Prince.  So the use of right in 
 this context is a dead end in my view.
 
 The best interest of the child is not in the context of parental rights as 
 much as it is intended to treat the child as a separate person who deserves

RE: Parental rights and physical conduct


My Dad gave me a sip of Dome foam at an Astros game when I was fairly young, 
which had the (almost certainly intended) effect of putting me off of beer 
until later than many of my peers. The sad part is that we will never know 
whether that act was in the best interests of the child or whether Dad 
should've been locked up.


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
On Behalf Of Ira Lupu [icl...@law.gwu.edu]
Sent: Thursday, July 05, 2012 9:26 PM
To: Law  Religion issues for Law Academics
Subject: Re: Parental rights and physical conduct

I am wondering if Marci thinks Troxel v. Granville (unconstitutional for 
legislature to provide for grandparent visitation rights over objection of 
custodial parent) is correctly decided, or consistent with her views. Her 
assertion that Children are increasingly being treated as independent persons 
whose interests must be examined separately is awfully vague -- 16 year olds 
involved in custody fights?  What's the context to which you are referring?

Now I have to go watch the Nationals and drink some beer with my younger son -- 
he'll be 22 in a few weeks.  I have a 13 year old grandson coming to visit 
tomorrow, and I'll have to think twice about offering him a bottle.

On Thu, Jul 5, 2012 at 8:19 PM, Marci Hamilton 
hamilto...@aol.commailto:hamilto...@aol.com wrote:
I would disagree with Chip that the concept of best interest of the child 
continues to afford a presumption that parents act in the best interest of the 
child.  Children are increasingly being treated as independent persons whose 
interests must be examined separately.

I do agree w Chip, though, that religious reasons should never be adequate as 
reasons to water down the best interest inquiry or create a defense in a case 
involving harm to a child.

Marci

On Jul 5, 2012, at 3:34 PM, Ira Lupu 
icl...@law.gwu.edumailto:icl...@law.gwu.edu wrote:

Our ordinary, wide-spread, and long-standing presumption is that 
parents/guardians act in the best interests of their minor children.  The state 
may intervene -- overcome that presumption -- when parents/guardians inflict 
significant harm on their children.  Of course, we can all argue about what 
constitutes such harm (e.g., Eric' s example of Amish families keeping their 
children on the farm, or Alan's example of a parent providing a child with 
small amounts of alcohol).  I am not trying to settle what constitutes harm 
sufficient to justify intervention.  I am trying to reject the idea that 
religion will EVER appropriately affect that judgment by the state.  There is 
no room for play in the joints on these questions, because the interests of 
third parties are involved.  If the state singles out religiously motivated 
conduct for an exemption from a prohibition on what is otherwise abusive or 
neglectful, that violates the Establishment Clause.  And if If the state 
singles out religiously motivated conduct for punishment in cases where the 
same conduct with secular motivation is not considered abusive or neglectful, 
that violates the Free Exercise Clause.   So, Alan, the answer is yes, both 
parents who provide alcohol to their children should have to operate under the 
same rules -- if a Jewish parent's Seder practices are OK (and I'm sure that 
the vast majority of such parents don't abusively or neglectfully ply their 
minor children with alcohol), then likewise for the parent who provides the 
same amount of alcohol, over the same number of hours, with the same frequency 
on the calendar (once a year).   Doing this at every Sabbath, or every Sunday 
during NFL season, might be abuse or neglect, but the standard for state 
intervention would be the same for both parents.

On Thu, Jul 5, 2012 at 2:59 PM, Marci Hamilton 
hamilto...@aol.commailto:hamilto...@aol.com wrote:
I would like some clarification from those relying on purported parental 
rights. The use of the term parental right  is freighted w social and 
cultural value but very little legal value.

Pierce v Society of Sisters is balanced by Prince.  So the use of right in 
this context is a dead end in my view.

The best interest of the child is not in the context of parental rights as much 
as it is intended to treat the child as a separate person who deserves 
protection and respect even in opposition to a parent's demands or needs.

Marci

On Jul 5, 2012, at 12:42 PM, Eric Rassbach 
erassb...@becketfund.orgmailto:erassb...@becketfund.org wrote:


 Eugene --

 I don't think this makes sense because it posits an impossible universe of 
 zero-risk parenting. It is far riskier to drive your child on the freeway 
 (not to mention take him/her skiing, or letting him/her play soccer, or play 
 football (esp. in Texas)) than it is to baptize him/her. All those risks are 
 well within the set of risks that parents take in the normal course of 
 parenting. Indeed, for the state to interfere with the ability of

RE: Parental rights and physical conduct

The difficulty is that newborn males aren't Jewish in the sense 
of actually believing in the Jewish religion - they are, after all, newborns.  
When they are 18, they might be religious enough (or culturally identified 
enough) to appreciate being circumcised if they had been circumcised, and to 
resent not having been circumcised if they hadn't been.  Or they might be 
irreligious (or religious but non-Jewish) and appreciate not being circumcised 
if they hadn't been circumcised, and to resent having been circumcised if they 
had been.  Or of course they might be irreligious but not care much one way or 
another.

One possible answer to this is to try to estimate - how exactly 
would one do that? - which group is likely to be largest (those who would 
resent not having been circumcised or those who would resent having been 
circumcised), adjust the numbers to account for the greater difficulty of 
undoing a circumcision as an adult (very difficult, I understand, even now) vs. 
getting one as an adult (painful but less difficult), and adjust further to 
account for the relative importance of the matter to each group (if such a 
thing is possible).

Another possible answer is to say that parents are entitled to 
make the choice for their children.

A third answer is to say that it's not proper to substantially 
alter the bodies of some people without their consent (and absent medical 
need), at least if the alteration is likely to interfere in some measure with 
some valued function, even in order to advance the religious or cultural 
interests of other people.  My sense is that this latter view is the right 
view, because I agree that the important right is the right of the child, and 
the right to be free of surgery that one may later not want is more important 
than the right to have surgery that one may later want.

Eugene



Brian Landsberg writes:


From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Brian Landsberg
Sent: Thursday, July 05, 2012 11:35 AM
To: Law  Religion issues for Law Academics
Subject: RE: Parental rights and physical conduct

Let me try again.  The discussion has focused on the rights of the parents and 
of the state.  The children have come into the discussion only as objects of 
control or protection by the parents or state; that is the context of the best 
interests of the child standard.  But isn't the state depriving most newborn 
Jewish males of a right when it bans circumcision of children?  Of course, the 
infant does not have capacity to exercise his right, so the law generally 
declares the parent rather than the state as a surrogate decision-maker.  At 
least at the policy level isn't that ordinarily the proper allocation of 
responsibility?

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Permissible protection of the religious individual's autonomy and identity

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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RE: Parental rights and physical conduct

I agree that the danger to infants from full immersion baptism is very 
low and perhaps zero; the hypothetical was that it happened in a handful of 
cases, but I think that's just a hypothetical.  As to what burdens the 
government imposes to avoid a handful of deaths of infants, I think that 
varies from context to context.  My sense is that there are quite a few safety 
regulations -- though generally not total bans -- that are indeed justified by 
the desire to avoid just a handful of deaths. 

On the other hand, circumcision involves not a very low risk of death, 
but a certainty of loss of part of the body, which in turn involves an 
uncertain possible health benefit and an unknown (and likely very hard to 
quantify) possibility of loss of some sexual function.  That might well be a 
materially higher aggregate loss of utility, to borrow the economic term, than 
the loss of utility from playing football, even in Texas.  Or it might not; 
again, much depends on the facts.

Eugene

 -Original Message-
 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
 boun...@lists.ucla.edu] On Behalf Of Eric Rassbach
 Sent: Thursday, July 05, 2012 9:43 AM
 To: Law  Religion issues for Law Academics
 Subject: RE: Parental rights and physical conduct
 
 
 Eugene --
 
 I don't think this makes sense because it posits an impossible universe of
 zero-risk parenting. It is far riskier to drive your child on the freeway 
 (not to
 mention take him/her skiing, or letting him/her play soccer, or play football
 (esp. in Texas)) than it is to baptize him/her. All those risks are well 
 within the
 set of risks that parents take in the normal course of parenting. Indeed, for
 the state to interfere with the ability of parents to expose children to those
 risks would be a gross interference with parental rights. And I imagine that
 the danger to infants from either circumcision or full immersion baptism is 
 far
 lower than driving them around town, though I claim no actuarial expertise
 on the matter.
 
 Eric
 
 
 From: religionlaw-boun...@lists.ucla.edu [religionlaw-
 boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
 [vol...@law.ucla.edu]
 Sent: Thursday, July 05, 2012 12:31 PM
 To: Law  Religion issues for Law Academics
 Subject: RE: Parental rights and physical conduct
 
 I appreciate Howard's point, but the question is:  Why should 
 some
 children who by definition do not share a religious belief drown - or
 otherwise be injured - for the sake of the beliefs of the adults who do have
 that belief (and even for the sake of those children who, later in life, will 
 wish
 that they had been so baptized)?  I have great sympathy for people's rights
 to risk their own lives (in the baptism example) or alter their own bodies (in
 the circumcision example) for the sake of their religious beliefs, or for that
 matter for the sake of their secular beliefs.  But why does it follow that 
 they
 should have the right to impose such risks on others, even others to whom
 they are genetically linked?
 
 Eugene
 
 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
 boun...@lists.ucla.edu] On Behalf Of Friedman, Howard M.
 Sent: Thursday, July 05, 2012 8:52 AM
 To: Law  Religion issues for Law Academics
 Subject: RE: Parental rights and physical conduct
 
 
 What has been absent from all of the discussion on this issue is the
 importance to Jewish belief of circumcision while the son is an infant. This
 ceremony at 8-days of age (except where health precludes it that early) is
 the son's initiation into Jewish peoplehood. Waiting until adulthood is not 
 the
 functional equivalent. Because the case in Germany involved a Muslim
 circumcision at a later age, the issue is muddled.  As I understand it, Islam 
 has
 varying views on the proper age for circumcision, and even on how important
 it is. While centrality of religious belief has been a factor of declining
 importance in free exercise cases in recent years, here it perhaps should be
 revived. I think a better analogy for trying to come up with a rule is this:
 
 Suppose there were a handful of cases in which infants drowned (or almost
 drowned) during full immersion baptism, and a court then ruled that because
 of the danger parents cannot baptize infants. They must wait until the child 
 is
 an adult and then let him or her decide.  How would everyone come out on
 that case?
 
 Howard Friedman
 
 
 -Original Message-
 From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-
 boun...@lists.ucla.edu on behalf of Volokh, Eugene
 Sent: Thu 7/5/2012 10:57 AM
 To: Law  Religion issues for Law Academics
 Subject: Parental rights and physical conduct
 
 This raises a fascinating and practically very important 
 question
 (because there are more than 10 times as many American parents who
 authorize circumcision for nonreligious reasons than

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

Circumcision of 12-year-olds

The quote from Boldt rather strikingly focuses on how forcing a 
12-year-old to be circumcised is bad for the 12-year-old because it could 
seriously affect the relationship between [him] and father.  Is that really 
all there is to it?  Might it not also be bad because a 12-year-old shouldn't 
be forced to lose a part of his body that he doesn't want to lose, at least 
absent some pretty significant medical reason?

More broadly, say that the issue arose not in a child custody case, but 
within an intact family.  Should the law allow parents to circumcise their 
12-year-old son against his expressed will -- as opposed to circumcising an 
infant who can't express a will?  Or should that be seen as child abuse, with 
possible criminal or civil liability for the parents or the mohel?

Eugene

Eric Rassbach writes:

 I would add to Chip's point that almost all of these cases would arise in 
 state
 court rather than federal court since they would for the most part deal with
 domestic relations issues or state law tort claims.
 
 See for example, In re Marriage of Boldt, 344 Or. 1, 176 P.3d 388 (Ore. 2008):
 
 
 Although the parties and amici have presented extensive material regarding
 circumcision, we do not need to *12 decide in this case **394 which side has
 presented a more persuasive case regarding the medical risks or benefits of
 male circumcision. We conclude that, although circumcision is an invasive
 medical procedure that results in permanent physical alteration of a body
 part and has attendant medical risks, the decision to have a male child
 circumcised for medical or religious reasons is one that is commonly and
 historically made by parents in the United States. We also conclude that the
 decision to circumcise a male child is one that generally falls within a 
 custodial
 parent's authority, unfettered by a noncustodial parent's concerns or
 beliefs-medical, religious or otherwise. Were mother's concerns or beliefs
 regarding circumcision all that were asserted in the affidavits in this case, 
 we
 would conclude that mother did not carry her initial statutory burden to
 demonstrate a sufficient change in circumstances demonstrating father's
 inability to properly care for M.
 
 However, in this case, mother has averred in her affidavit that M objects to
 the circumcision.FN8 In our view, at age 12, M's attitude regarding
 circumcision, though not conclusive of the custody issue presented here, is a
 fact necessary to the determination of whether mother has asserted a
 colorable claim of a change of circumstances sufficient to warrant a hearing
 concerning whether to change custody. That is so because forcing M at age
 12 to undergo the circumcision against his will could seriously affect the
 relationship between M and father, and could have a pronounced effect on
 father's capability to properly care for M. See Greisamer, 276 Or. at 400, 555
 P.2d 28 (illustrating proposition). Thus, if mother's assertions are verified 
 the
 trial court would be entitled to reconsider custody. As to that inquiry,
 however, we think that no decision should be made without some
 assessment of M's true state of mind. That conclusion dictates the outcome
 here.
___
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RE: Parental rights and physical conduct