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The otherwise excellent paper by German law professors Merkel and Putze1 fails to sufficiently emphasize the prohibition against using Wisconsin v. Yoder (1972) to support physical injury to a child in the name of religion.
Then Chief Justice Burger wrote the majority opinion for the court and specifically exempted the case from application to physical harm. In his opinio...
Then Chief Justice Burger wrote the majority opinion for the court and specifically exempted the case from application to physical harm. In his opinion, he wrote:
"This case, of course, is not one in which any harm to the physical or mental health of the child or to the public safety, peace, order, or welfare has been demonstrated or may be properly inferred."2
The court reaffirmed the earlier case of
Prince v. Massachusetts (1944) as the controlling case in situations in which a child is put at risk in the name of religion: 3
"To be sure, the power of the parent, even when linked to a free exercise claim, may be subject to limitation under Prince if it appears that parental decisions will jeopardize the health or safety of the child, or have a potential for significant social burdens."2
In the case of Prince v. Massachusetts, Justice Rutledge delivered the opinion of the court. The court said:
"The right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death. People v. Pierson, 176 N.Y. 201, 68 N.E. 243. The catalogue need not be lengthened. It is sufficient to show what indeed appellant hardly disputes, that the state has a wide range of power for limiting parental freedom and authority in things affecting the child's welfare, and that this includes, to some extent, matters of conscience and religious conviction."4
The court then famously stated:
"Other harmful possibilities could be stated, of emotional excitement and psychological or physical injury. Parents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves."4
Therefore, the free exercise clause of the First Amendment to the United States Constitution cannot be used to support putting a child at risk in the name of religion.
Free exercise of religion is not only an adult right. Children also have a right to freely exercise their religious views when they reach "the age of reason."3 With particular application to the physical injury of circumcision, the child may make that decision for himself when he reaches the age of legal capacity, however neither the free exercise clause nor Yoder offers any support whatsoever for any alleged parental "right to circumcise."