Child deaths test faith-healing exemptions - Kids and parenting-msnbc.com

[eric treene]

Larry Tribe argued that a prayer treatment exemption's application violated
the Establishment Clause in his cert petition in Walker v. Superior Court,
763 P.2d 852 (Cal 1988), petition for cert filed 57 USLW 3622 (US March 8,
1989) (No. 88-1471).  

 

I surveyed the Establishment Clause arguments in a Note I wrote way back
when, See Prayer-Treatment Exemptions to Child Abuse and Neglect Statutes,
Manslaughter Prosecutions, And Due Process of Law, 30 Harv. J. on
Legislation 135, 160-64 (1993).  I argued that in the abstract these
provisions did not violate the Establishment Clause in light of the
then-recent Smith decision's solicitude for accommodations, but that the
language used in many of the prayer-treatment exemptions could be
unconstitutional denominational preferences, and others posed entanglement
problems.

 

Eric Treene

 

(in my personal capacity).

 

  _____  

From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Friday, November 21, 2008 9:38 PM
To: Law & Religion issues for Law Academics
Subject: Re: Child deaths test faith-healing exemptions - Kids and
parenting-msnbc.com

 

Has anyone, either in such a wrongful-death suit, or perhaps in some other
context, ever argued in court that the exemptions violate the Establishment
Clause?  If not, why not?  If the third-party burdens were enough to render
the law invalid in Thornton v. Caldor, these are easy cases. 

On Fri, Nov 21, 2008 at 9:05 PM, Michael R. Masinter <masinter at nova.edu>
wrote:

Not much has changed since the extended thread a decade ago on Lundman
v. McKown, McKown (Minn. App. 1995), a wrongful death suit by a father
against a mother, a stepfather, and a faith healer who prayed a child
to death from type one diabetes.  Michael McConnell contributed
thoughtful posts to that discussion defending exemptions, though I
remained unconvinced then and now.

It's not clear whether the exemption's roots lie in respect for
religion or the long history of children as chattels.  Either way, the
exemption seems irreconcileable with Amos since it imposes the burden
of death on a child.  To paraphrase a better writer, a homicide by any
other name would smell as sour.

Michael R. Masinter                      3305 College Avenue
Professor of Law                         Fort Lauderdale, FL 33314
Nova Southeastern University             954.262.6151 (voice)
masinter at nova.edu                        954.262.3835 (fax)

Visiting Professor of Law (2008-2009)    305.284.3626 (voice)
University of Miami Law School           mmasinter at law.miami.edu
1311 Miller Drive
Coral Gables, FL 33146


Quoting Joel Sogol <jlsatty at wwisp.com>:

> http://www.msnbc.msn.com/id/27844314/
>
> Joel L. Sogol
>
>
> _______________________________________________
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