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: [email protected]
[mailto:[email protected]] 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.
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