Tuesday, May 1, 2012

Baby dies of herpes in ritual circumcision by Orthodox Jews

Link to ABC News article

Yet again, a baby dies of herpes in a ritual circumcision.  I'm generally in favor of letting people live their religion, but when it comes to dangerous practices that threaten the lives of children, it is time to call bullshit.  Not every religious practice is protected under the Free Exercise Clause of the U.S. Constitution. 

As a  law student, I was very interested in the line of cases involving the Free Exercise Clause, which is invariably invoked by people wanting to practice dangerous or otherwise illegal activities in the name of religion.

The Supreme Court's first encounter with a Free Exercise Clause claim came when a Mormon polygamist in the Utah Territory challenged his conviction under a federal anti-polygamy law.  This case is of personal interest to me, because I'm from Utah, and I, like Mitt Romney, have polygamist ancestors.

The Supreme Court rejected the appellant's claim that his religious beliefs necessitated, and therefore excused, his violation of federal law.  The Court read the Free Exercise Clause as protecting religious beliefs, not religious practices that run counter to neutrally enforced criminal laws.  Since then, laws have been upheld that ban snake handling, use of halucinagins, and failing to pay taxes, all of which were argued to be sincerely held religious beliefs.

In general, as long as a law does not target a particular religious practice, it will probably not be found to violate the Free Exercise Clause. Employment Division v. Smith. This doesn't mean, however, that it is impossible to draft a law that has the effect of banning a particular practice.  For example, there are public health reasons for preventing surgeries on children outside of a licensed facility by a trained physician.  Similarly, there are religiously neutral reasons for preventing a "doctor" from cleaning a surgical site with his mouth.  

As secularists, we need to be active in our state legislatures to pass laws that reflect science and reason.  Theists are certainly active in their legislatures, particularly here in Utah.  It seems like every law being passed in Utah bears the mark the LDS church, from banning sex education to hiding the bars in restaurants.

What other laws should we be trying to advance?  Are we aware of which legislators in our state have a secular bent?

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