I agree with most of what Chip says about hybrid rights and religious accommodation of rights protected activity. As a general principle, religious people should not receive preferential accommodations when exercising fundamental rights such as freedom of speech, or voting, or the right to marry or have children.
Where he and I disagree, I think, is that I do not believe that courts protect parental control of the upbringing of children as a "right" in the same way that they protect speech and other fundamental rights. There is far too much discretion exercised by the state in this area of law and far too little rigor in the review applied to laws that interfere in one way or another with parental prerogatives for me to analogize parental autonomy to a fundamental right. Thus, I do not think that parents have a "right" to provide beer to children while watching sporting events on TV as part of a more general liberty interest in controlling the upbringing of their children. And I see little reason to provide an exemption from laws prohibiting the provision of alcohol to minors in this context as a policy matter -- other than the fact that enforcement of a no beer for kids rule in family rooms would be intrusive. I think that allowing parents to offer wine to children as part of a religious ceremony is different and more defensible because raising one's children as part of a religious family is an essential aspect of religious liberty that deserves respect and protection. Put simply, I would want more of a showing that harm exists or is risked before I forced parents to violate religious beliefs that involve families and children. Alan ________________________________ From: [email protected] [[email protected]] on behalf of Ira Lupu [[email protected]] Sent: Thursday, July 05, 2012 2:44 PM To: Law & Religion issues for Law Academics Subject: Re: Parental rights and physical conduct 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).
_______________________________________________ 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.
