Medical reasons for action vs. religious reasons for action

[Volokh, Eugene]

                The question, I think, isn't whether there should be a crime of circumcision as such.  Rather, the question is whether the normal crime of mayhem, assault, battery, or child abuse - whatever label a particular jurisdiction would use for cutting off a part of an infant's body - should have as a defense (1) categorical parental prerogative, at least when it comes to circumcision ("I'm the parent and I can cut off certain parts of the child's body for any reason I choose"), (2) religious parental prerogative ("I'm the parent and I can cut off certain parts of the child's body if I think God wants me to"), or (3) medical parental decision ("I'm the parent and I can make medical decisions for the child, within broad parameters, even if that includes cutting off certain parts of the child's body, based on my good-faith estimate of the costs and benefits of a procedure").

I'm inclined to think that defense 2 is improper (for some of the reasons Chip gives), that defense 1 is proper only for actions that are highly unlikely to affect future bodily function (which male circumcision might or might not qualify, and which ear piercing does qualify as), and defense 3 is proper for actions that are fairly likely to affect future bodily function.  And the analogy to self-defense helps explain why defense 3 is proper even though it treats medical reasons as better than all other reasons, including religious ones.

                Eugene

From: religionlaw-bounces at lists.ucla.edu<mailto:religionlaw-bounces at lists.ucla.edu> [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Vance R. Koven
Sent: Thursday, July 05, 2012 11:05 AM
To: Law & Religion issues for Law Academics
Subject: Re: Medical reasons for action vs. religious reasons for action

I'm not sure who the "we" is in Eugene's hypothesis, but nobody is proposing to add anything to defenses, since it's the existence of the offense that is under discussion. Nobody contests that the crime of murder, or attempted murder, exists with a rather precise definition. There is as yet no crime of circumcision. Moreover, in looking at the two situations, it's obvious that the defense of self-defense (which derives from the same "unalienable right" to life to which the crime of murder speaks) contains a mental state within its definition, as does the crime of murder. If there were a similar mental state in the "crime" of circumcision (e.g. removing someone else's foreskin with the intent to do grievous bodily harm), then one might say that the "normal" circumcision would never violate the law, and if the perpetrator did have the requisite intent, claiming religious justification might well not suffice as a defense.

Of course, a legislature creating a crime of circumcision could decide to allow medical exemptions  but not to allow a religious one (RFRA arguments, anyone? Would Lukumi apply?), but I still think that would be merely a trap for the unwary defendant who fails to allege medical motives.
On Thu, Jul 5, 2012 at 10:46 AM, Volokh, Eugene <VOLOKH at law.ucla.edu<mailto:VOLOKH at law.ucla.edu>> wrote:
                Here's an analogy from another area in which the normal rule - one person may not alter or injure another's body without permission - is relaxed: self-defense.

                Say Vic is doing something that Don perceives as blasphemous, but that might also be dangerous to Don or Don's property.  (E.g., say Vic is burning a Koran and saying things that might reasonably lead Don - a Muslim - to think that Vic will imminently injure Don, or that the fire will spread to Don's property.)  Vic attacks Don using nondeadly force and injures him.

                If Don reasonably believed that Vic was about to injure Don, and hit Don to prevent that, Don is not guilty of any crime, by reason of self-defense.  But say that the objective circumstances are the same, so that Don could have reasonably believed that Vic was about to injure him, but Don did not actually sincerely believe this.  Instead, he says that he attacked Vic because he thought God wanted him to attack Vic.  Then Don is guilty of assault; no self-defense defense is available (and I take it that we'd agree that no other defense should be available to him).  This rule does not treat religious reasons for hitting Vic worse than secular reasons generally.  But it does treat all reasons for hitting Vic worse than one favored secular reason - the perception that Vic poses an imminent danger to Don's person or property.

                If I'm right on this, then I all think that there's no violation of the norm of equal treatment when we add another reason for allowing one person to alter or injure another's body: that the actor is the subject's parent and has a medical reason for ordering a surgery to the underage child.  That the parent has a right to alter the child's body for medical reasons doesn't mean he has a right to alter the child's body - even when the objective circumstances seem the same - for nonmedical reasons, including religious ones.

                Eugene
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