Thursday, July 14, 2011

JAMA Proposes Taking Obese Children from Parents

According to David Ludwig in the Journal of the American Medical Association, states should take obese children from their parents and put the children in foster care.

After all, obesity can increase the risk of many diseases.  Obese children may develop life-threatening conditions later in life.  Therefore, allowing a child to be overweight is a kind of child abuse, and the state must step in to protect the child.

However, it is impossible to single parents out when a child is overweight.  Many factors contribute to a child's weight.  As University of Pennsylvania bioethicist Art Caplan notes, "obese children are victims of advertising, marketing, peer pressure and bullying, things a parent can't control."  Yanking children out of their homes does not address those other factors.

States are already struggling to provide basic services.  Child abuse cases can go on for a year or more, and every case will require bailiffs, clerks, judges, attorneys, and social workers.  Every child will require a state-subsidized foster home, which are already in short supply.  If the state gets its hands on the two million overweight children in America, the entire system will collapse under the added case load.

This proposal is an unprecedented expansion of the state's intrusion into parenting.  Foster care should be a last resort when it is truly necessary to safe a child from imminent harm.  If letting a child gain weight is to be considered child abuse, then there is no end in sight.  Not brushing, not flossing, staying up too late at night?  Here comes the state, which knows better and has to protect your children from you.

States can and should step in when a parent's actions directly endanger a child.  However, states can not and should not interfere with parenting on the tenuous basis that a parent maybe is not doing enough to prevent a condition that may increase the risk of health problems years in the future.  As with most well-intentioned but poorly-thought-out proposals, the consequences are worse than the supposed cure.

North Carolina's statute on child abuse is here:

The Winston-Salem Journal article on David Ludwig's proposal is here:

Tuesday, July 5, 2011

New York Passes Marriage Equality Bill

Recently, New York became one of a growing number of states to recognize same-sex marriages through legislation.

The New York statute refers to "marriage" rather than "civil unions."  This terminology is important for more than just symbolic reasons.  A married couple automatically gets the rights (and responsibilities) of marriage, while the legislature has to pick and choose what goes into a civil union.  Despite New York's move, however, uncertainties and difficulties remain for some same-sex couples.

The New York statute contains an exception for religious institutions.  Certainly, the exception means that religious officiants will not be required to perform same-sex marriages if their religious tenets prohibit it.  Such an exception seems reasonable, if not possibly required by the First Amendment.  However, the exception also appears to immunize religious institutions and charities from discrimination lawsuits if they discriminate against same-sex married couples in public accommodations.  In other words, the courthouse doors may be closed to same-sex married couples in discrimination cases where they would be open to different-sex married couples.  Such an exception would seem to be an extraordinary setback for same-sex couples.  Time will tell how far-reaching this language actually extends.

Many states have a residency requirement to obtain a marriage license.  New York does not.  However, out-of-state couples may not want to go to New York to get married.  Problems may arise when they return to their home state.

A same-sex couple married by the State of New York may find it of limited benefit to them in their home state.  Many states have passed "Defense of Marriage Acts" or similar constitutional amendments.  These acts and amendments generally prohibit same-sex marriage in the state, refuse to give full faith and credit to out-of-state same-sex marriages, and deny same-sex couples any "marriage-like" benefits.  In such states, the New York marriage may be only symbolic.

A more complicated problem can occur if the same-sex couple splits up.  The DOMA state often denies the couple the right to divorce, calling that a benefit of marriage.  New York may not have jurisdiction to dissolve the marriage, either because the couple never resided there or because the couple moved away.  In this all-too-common situation, the couple is stuck remaining married because they cannot get a divorce anywhere.

President Barack Obama has said that same-sex marriage should be an issue for states to decide.  However, the situation is not that convenient.  The federal government has to decide the marriage question in many of its own circumstances:  immigration, survivor benefits, and income tax filing, to name a few examples.  Currently, the federal DOMA denies married same-sex couples access to those federal incidents of marriage.

Despite these limitations, New York's decision to recognize same-sex couples' right to marriage is significant.  The full text of the original bill is available here.