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: [email protected]
[mailto:[email protected]] 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
<[email protected]<mailto:[email protected]>> 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 just parental decisions about surgery for children
but also parental decisions about beating children, a tradition that I do not
think ought to be given much legal weight. The second, which I think is
intriguing and might be correct, is to have such decisions be made by
legislatures directly, rather than by judges interpreting general human rights
norms. I'd love to hear more thoughts on this institutional question.
Eugene
From:
[email protected]<mailto:[email protected]>
[mailto:[email protected]<mailto:[email protected]>]
On Behalf Of Vance R. Koven
Sent: Monday, July 02, 2012 10:58 AM
To: Law & Religion issues for Law Academics
Subject: Re: German circumcision decision
But isn't saying that you would accept the argument that refusing medical
treatment because it might do more harm than good the same as saying the
medical treatment might not be necessary? And if in any particular situation
you would accept the argument that doing or not doing something would be valid
if you said it was for medical reasons, and oh by the way to do otherwise would
be against my religion (and there is independent evidence that the medical
argument is genuine), then why condemn someone who neglects to mention the
medical rationale? The medical evidence goes to the question of whether,
objectively speaking, there is a likelihood of harm. If the medical evidence is
to the contrary, or if the matter is subject to substantial debate, the
religious motivation shouldn't be weighted negatively, and doing so is simply a
point of religious bias rather than objective analysis.
This is why I, like Mark Scarberry, would urge a legal heuristic that courts
should be biased in favor of letting people do what they have always done,
unless a democratically accountable legislature has clearly indicated the
contrary (at which point you could begin analyzing whether the legislature has
infringed someone's fundamental rights). Nobody in post-war Germany has ever
prosecuted a doctor or parent (never mind a religious official) for performing
or permitting a male circumcision, which ought to be evidence that the
generally phrased criminal legislation didn't cover it. The judge's rather
high-handed and arbitrary statements that in Central Europe there are no
medical arguments in favor of circumcision do indicate a mindset that just
wanted to take a slap at traditional religious communities. It's just more
legislating from the bench (or the post office).
Vance
On Sun, Jul 1, 2012 at 5:22 PM, Volokh, Eugene
<[email protected]<mailto:[email protected]>> wrote:
I don't see why it's "religio-cultural[ly] insensitiv[e]" to
say that a decision made for medical reasons is permissible but a decision made
for religious reasons is not; or if it is religio-culturally insensitive, I
would be proudly religio-culturally insensitive in many instances. (This
instance I do find hard, for many reasons, but not for the reasons described
below.) For instance, I don't see why we should treat (a) a parent's refusing
necessary medical treatment to a child because there's a plausible argument
that the treatment will do more harm than good the same as (b) a parent's
refusing such treatment without any such explanation but simply because he
concludes "we should pray instead of performing the medical procedure, and God
will take care of things." Perhaps it's too hard to tease apart such
rationales in some situations, but as a general matter I would think that
courts might quite rightly reject rationale (b) even if they accept rationale
(a).
Now of course here the situation is not identical - indeed, as
I've argued before, male circumcision is not identical to pretty much any other
procedure - and perhaps the situation should be different when we're not
talking about refusal of necessary medical treatment but rather the performance
of a medical procedure for which the practical effect (with regard to possible
loss of sexual sensation) is unknown. But the point is that the mere fact that
a decision might permissibly be made for plausible medical reasons doesn't mean
that it might permissibly be made for religious reasons (or other nonmedical
reasons).
Eugene
From:
[email protected]<mailto:[email protected]>
[mailto:[email protected]<mailto:[email protected]>]
On Behalf Of Vance R. Koven
Sent: Sunday, July 01, 2012 9:38 AM
To: Law & Religion issues for Law Academics
Subject: Re: German circumcision decision
Isn't there still a substantial body of medical opinion--perhaps not as
prevalent as in decades past--that recommends circumcision as a preventive
health measure? If the issue is the lack of consent from the subject of the
operation, this certainly affects more than just religious observance, and more
than just this particular operation. And if the decision hinges specifically on
the fact that the motivation (if that can ever be clear) is primarily
religious, that certainly smacks of religio-cultural insensitivity, to put it
mildly.
Vance
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Vance R. Koven
Boston, MA USA
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