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: [email protected] [mailto:[email protected]] 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: [email protected]<mailto:[email protected]> [[email protected]] on behalf of Ira Lupu [[email protected]] 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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