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: [email protected] [[email protected]] On Behalf Of Ira Lupu [[email protected]] 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: [email protected]<mailto:[email protected]> [[email protected]<mailto:[email protected]>] on behalf of Ira Lupu [[email protected]<mailto:[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. _______________________________________________ To post, send message to [email protected]<mailto:[email protected]> 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 [email protected] 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.
