Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Monday, May 23, 2011

Circumcision and Hybrid Rights

Michael Helfand has a very thoughtful discussion of this (in my view) misguided piece of legislation (it looks like a ballot proposal).  Calvin Massey also comments perceptively here.  I do not think that the ban would violate the rule of constitutional free exercise as interpreted by Employment Division v. Smith -- that neutral laws of general application are constitutional so long as no religion is being specifically targeted (as in the Lukumi-Babalu case).  With respect (Professor Massey knows more about constitutional law than I hope to know 10 years from now), I do not think that the legislative exception for "physical health" and concomitant statement that "custom or ritual" is not a basis for exemption rises to the level of targeting contemplated by Smith.  Certainly it's nowhere near the sort of record of specific targeting that existed in Lukumi-Babalu.  

Suppose a locality forbade the drinking of liquor for health reasons, and in the legislation there was a statement that "custom or ritual" shall not be a basis for exemption from the law.  Without any more evidence, I do not think that, under Smith, Catholics would be able to raise a free exercise claim (it might be different, though I am not certain, if a locality banned the drinking of wine only, and not other liquor, for health reasons).  At the very least, I'd like to see a whole lot more evidence of the reason that the legislature included the "custom or ritual" proviso before relying on the Smith holding.  A case like this one is one reason (among many) that I oppose Smith.

Mike Helfand raises the nifty point that perhaps the case falls within the hybrid rights analysis of Smith.  So, for example, the Court in Smith characterized Wisconsin v. Yoder as a case in which the Amish were really bringing two linked constitutional claims -- a free exercise claim and a claim of parents to direct the "education" of their children (which is not really the same as the right to control the "upbringing" of one's children -- that's why Yoder now -- post-Smith -- stands in the Pierce v. Soc'y of Sisters and Meyer v. Nebraska line, rather than in some broader parents' rights category).  As Professor Massey notes, the Ninth Circuit has held that to qualify for hybrid rights status, each right must be independently colorable.  Relying on a portion of a dissent by Judge Kleinfeld in a case involving the right of landlords to decide not to rent to unmarried tenants based on the landlords' religious views, Mike makes some nice arguments that the circumcision law directly implicates the parental rights hybrid carved out by Smith

I like the argument, but I am not so sure.  The reason is that reading the hybrid framework to encompass a situation in which "parental rights" writ large qualify for exemption increases the scope of the exemption to the point where it threatens to swallow the rule.  So long as children are involved, we've got a hybrid issue, since any issue can be characterized as one relating to "upbringing."  We could even characterize a wine ban as implicating issues relating to "upbringing" -- a ban on wine prevents me from raising my child in accordance with the religious practices and rituals that I deem important (for Catholics, a ban on wine would do more than this, of course, but it would do at least this, too).  The parental rights hybrid discussed in Smith had to do with educational issues specifically, not all issues of child upbringing.  I am, of course, sympathetic to the view that a parent for whom circumcision is a deeply important practice will look upon the banning of the practice as affecting the child's "upbringing" as well as his "education."  But I think that "education" at least can be made to look like an actual exception to the Smith holding.  I doubt that Smith contemplated that all claims which are in any way related to a child's upbringing could qualify for hybrid exemption (cases like Troxel v. Granville are different, because they are not hybrids). 

At all events, the difficulty with applying the hybrid framework is one reason that some courts (like the Second and Sixth Circuits) have simply treated the hybrid discussion as dicta, largely ignoring it.  See Leebaert v. Harrington, 332 F.3d 134 (2d Cir. 2003); Kissinger v. Bd. of Trustees of Ohio State Univ., 5 F.3d 177 (6th Cir. 1993).  Take a look at the terrific posts by Helfand and Massey -- what do you think?  Are parental rights to guide "education" persuasively distinguishable from parental rights to manage "upbringing" insofar as the hybrid approach is concerned?  Does failing to distinguish them threaten the holding of Smith itself (I don't think it would threaten the holding of Smith as applied to the Smith facts...but would it affect the holding as applied to other kinds of cases)?  As an opponent of Smith, and from a strategic point of view, perhaps I ought to acknowledge that this sort of approach might not be a bad way to chip away at it...

ONE MORE NOTE: I should add that at footnote 1 of Justice Scalia's opinion in Smith, he quotes language from Yoder describing Pierce as a "charter of the rights of parents to direct the religious upbringing of their children . . . ."  So perhaps this is a point in favor of the view that Michael advances about the scope of the hybrid framework.  On the other hand, the text of the opinion refers specifically to children's "education" and Pierce itself (as well as Yoder and Meyer) was about education, not upbringing more generally.


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How about this. There should be no ban on circumcision. However, any parent who is contemplating the circumcision of a newborn baby boy should be required to (a) watch a film of a circumcision being performed and (b) be read a script by the attending physician explaining that the foreskin is a functioning part of the penis, not a vestigial organ, and laying out all the pros and cons of circumcision and how it may affect the boy's future health and sex life including the fact that he may resent being circumcised when he becomes aware that the decision was made for him and was medically unnecessary. Then perhaps there should be a 24-hour waiting period so the parent has sufficient time to think thinks over.

Posted by: David Nickol | May 23, 2011 9:51:39 AM

I don't see where any religious freedom right comes in. Free exercise of religion does not involve imposition of a religion on someone else. If someone wants to circumscribe himself after reaching an age of maturity at which he can make medical decisions, fine. But the parents don't hold their child's religion in trust for him: it's his from the moment he's born.

Posted by: Andrew MacKie-Mason | May 23, 2011 11:12:02 AM

Andrew -- a question for you. Do you think that parents have no right to send their children to parochial schools either? Assume that one cannot know for sure what the wishes of the child are (and, at any event, they will be colored by the wishes of the parent). One can ask, but one cannot be sure. Can the state require every child to attend public school because parents have no right to direct the education of their children, for the analogous reason that the education belongs to the child, not to the parents?

Posted by: Marc DeGirolami | May 23, 2011 11:27:39 AM


I don't think I would support this law, but I do have to say that a child's bodily parts belong to the child, not the parents. If parents choose to circumcise their sons, it's permanent. I don't think it is a trivial issue. Of all the years I have been writing in online forums, the most heated debate I ever participated in was on circumcision. I was, of course, partly joking in my first message, but not totally. Cutting off a foreskin is a serious matter, and the decision to do so is often made without sufficient thought.

Posted by: David Nickol | May 23, 2011 11:45:42 AM

David, thanks for both of your comments. I agree with you that a child's bodily parts belong to the child. I agree that these are serious issues. I also think that religious liberty is a serious issue. So is the education of children. These are all serious issues. I hope nothing in my post suggested that I think otherwise.

Posted by: Marc DeGirolami | May 23, 2011 11:53:53 AM

Marc, parents have no "right" to send their children to parochial schools. The parents have the right to attend parochial schools themselves, of course, and the children have the right to choose to attend the schools. (Most kids are competent to make that choice by the time they enter high school.) But yes, education belongs to the child, and does not fall within a parent's free exercise rights — how could it? The child isn't the property of the parent.

Of course, there are certain parts of religious development that have to take place before a child is really able to make the choice for himself. Early-year church, for instance, of infant baptism. Or, in some traditions, circumcision. As a society we recognize that the parent is often the best proxy for what the child would choose, but still only a proxy. Thus, in the interests of fostering cultural diversity and free thought in the child, we defer a good deal to parents' judgments about how to raise their children. Even granting that, though, it's about the freedom of the child, not some supposed free exercise right of the parents to mutilate their children.

David is right to emphasize the permanency of circumcision, as well as the potential damaging effects. Those are factors we should consider when deciding whether this is a proper area to allow parental prerogatives.

(To be clear, I'm not arguing that circumcision should necessarily be banned. Just that there is absolutely no religious right of the parent involved.)

Posted by: Andrew MacKie-Mason | May 23, 2011 3:50:13 PM


Thanks for the link! Over at the Law, Religion & Ethics Blog (http://lawreligionethics.org/2011/05/why-san-francisco-ballot-measure-proposing-circumcision-ban-is-unconstituonal/), Chip Lupu posed the following question: "Does Michael (or anyone else) think that the circumcision ban is constitutional as applied to non-religious parents (those with health reasons alone)? If it is not, then religion (and the theory of hybrid rights) is doing no work here (just like it was doing no work in Pierce — it did not matter that the parents wanted a religious, rather than secular, private school for their children)." This is an important question and a reason why hybrid rights claims are often besides the point.

I responded as follows, but would be interested to know what others think: "As best I understand it (which probably isn’t very well), the value of the hybrid rights claim flows from what I presume would be some uncertainty as to whether or not there is a clear 14th Amendment parental rights claim implicated in the circumcision ban. Under the 9th Circuit’s test, “to assert a hybrid-rights claim, a free exercise plaintiff must make out a `colorable claim’ that a companion right has been violated — that is, a `fair probability’ or a `likelihood,’ but not a certitude, of success on the merits.” See Miller v. Reed, 176 F. 3d 1202 (1999).

I have to imagine there will be some debate as to the scope of the parental rights claim, so having the option to raise a hybrid claim will presumably make finding the ban unconstitutional more likely."

Posted by: Michael Helfand | May 24, 2011 7:17:38 PM

Michael, thanks for coming back to the post. Eugene Volokh has some very thorough and well-considered reflections here: http://volokh.com/2011/05/23/proposed-san-francisco-circumcision-ban-and-religious-freedom/

His "bottom line" with respect to a court which endorses the "colorable claim" view is similar to yours, though he thinks that some courts might view a hybrid rights claim with greater skepticism in that context.

Chip's question is, as always, right to the point. But I wonder whether the category that Chip means to identify is not parents with "health reasons" for circumcision. That group might well qualify for the exception in the legislation itself for "physical health," though probably one would need to see what was intended by that carve-out. The category I think Chip is talking about is parents who have non-religious, non-health-related reasons for circumcising their child -- reasons based on tradition or custom, or the simple fact that the father is circumcised. Eugene notes over at Volokh, in a companion post on parental rights, that he is not aware of a parental rights case in which reasons of custom or tradition were adequate to ground a constitutional right.

But setting that aside, I have a question for you (and Chip, and others who want to discuss the *legal* -- and not the policy -- implications of this proposed law). Assume that a court would follow the "colorable claim" approach to hybrid rights, meaning that the FEC claim would be doing some independent work. And assume also that the companion claim was a parental rights claim. The parental rights claims which I know about which have grounded a hybrid rights claim have involved the right to direct the *education* of one's child (Yoder, Pierce, and Meyer, all retroactively, and I am familiar with court of appeals cases doing the hybrid dance with educational claims). I am not familiar with cases applying a hybrid rights analysis where the parental right asserted was a general right to direct "upbringing" -- to include the intergenerational transmission of cultural traditions or customs. I am not even familiar with a hybrid rights case involving the parental right to direct medical care (it must be a case applying the hybrid rights approach, and not simply the parental right to direct medical care alone). So my question is: assuming the colorable claim view, when the hybrid right consists of an FEC claim and a parental right, and the parental right does not involve the direction of education, has any court held that hybrid rights analysis applies?

Posted by: Marc DeGirolami | May 25, 2011 8:06:18 AM

One more thought -- I see that the "physical health" exception must be based on a "clear, compelling, and immediate medical need with no less-destructive alternative treatment available." I am not certain how the possibility/probability that circumcision would reduce incidence of future disease would be treated under this exception but it looks like it might not qualify. So perhaps Chip is talking about this category of parental right based on "physical health" of the child, to be distinguished from a parental right based on custom or tradition (or some more general reason of hygiene or sanitation) alone.

Posted by: Marc DeGirolami | May 25, 2011 8:32:26 AM

Many good questions raised here -- Eugene Volokh has a thorough and good post on the parents' rights issues (independent of religious freedom) raised by the proposed circumcision ban. My short answer to Marc's question is that you will find no court decisions finding a "hybrid right" with respect to religion and parental control over health care because 1) the "hybrid rights" category has been very much a dead end in the lower courts (that "colorable claim" theory is, I believe, an outlier); and 2) a claim of parental right to insist on (rather than refuse) medical care is quite rare in and of itself. My own take on Smith, Yoder, and hybrid rights is that, in our constitutional tradition, virtually all religion-based rights turn out to be more generalizable as rights (parents' rights, think Pierce, or free speech rights, think Barnette and Cantwell). Maybe Yoder is a derelict/outlier; or maybe it's wrongly decided; or maybe there parents generally have a right to home educate their children after the age of 14. In any case, the force and purpose of this general tradition is to remove the state from deciding questions of religious significance -- e.g., how religiously significant is it for a Jewish male child not to be circumcised at the age of 8 days? Observant Jews of course would say "very significant", but that's the answer religious claimants always give -- the point is not that they are wrong, but rather that this is not a question the state can answer. From what I have seen, the case that male circumcision causes harm is not nearly strong enough to overcome the strong tradition of parental control over such decisions (whether exercised for religious, social, or medical reasons). Religion adds something to that tradition, but religious reasons should not be privileged over secular reasons for parents to escape or invalidate the ban.

Posted by: Chip Lupu | May 25, 2011 3:00:24 PM

I'm still not clear on how the free exercise clause is implicated at all by a practice that involves forcing a religious decision on another individual.

Posted by: Andrew MacKie-Mason | May 25, 2011 5:05:40 PM

Thanks, Chip. Very helpful comment.

Andrew, historically there have been cases -- Yoder is one, but there have been many others -- in which parents claimed that it would violate their right to the free exercise of their religion if the state prevented them from raising their children according to the tenets of their faith. In Yoder, that meant not sending their children to public school in the high school years. That claim was accepted in Yoder. In Smith, the framework within which Yoder was decided was reconceptualized as a "hybrid right" -- part free exercise, and part parental rights.

There have been academics who have made something like the point you are making, but it is not a view that has been broadly legally influential thus far. A thorough statement of your view, I think, is in a paper by Professor James Dwyer, Parents' Religion and Children's Welfare: Debunking the Doctrine of Parents' Rights, 82 Cal. L. Rev. 1371 (1994). Unfortunately, it is not on SSRN, but if you have access to Westlaw or Lexis, you can obtain it there.

I think the paper may also be found here: http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1167&context=facpubs&sei-redir=1#search="parents'+religion+children's+rights"

Posted by: Marc DeGirolami | May 25, 2011 5:35:02 PM

Thanks for the article, Marc. I'll take a look at it on Westlaw. I should note, though, that when I say that there's no way that the free exercise rights of the parent are involved, I'm talking about the text of the Constitution, not precedent.

Posted by: Andrew MacKie-Mason | May 26, 2011 1:29:24 AM

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