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 < [email protected]> 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**** > > ** ** > >
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