Right Side of the Rainbow

A divorced Oregon couple is fighting over whether their 12-year-old son should be circumcised. The father is the custodial parent and a convert to Judaism. He says yes. The mother says no.

According to the article, the case raises two issues: “… the right of custodial parents to guide their children’s religious upbringings, and the weight that religious considerations should be given when considering the welfare of a child.”

And then there’s the “complicating factor at the heart of the case: the boy himself.”

Called “Jimmy” by his father and “Mischa” by his mother, and bounced from her home to his in the wake of an ongoing custody battle, he has aged three years as the circumcision case has wound its way to the Oregon Supreme Court. While both sides in the dispute claim to have the boy’s support, his own testimony has yet to be requested by the courts.

Our law rightly affords parents wide latitude to make decisions for and about their children. But there are exceptions to that rule. For example, a Jehovah’s Witness usually cannot deprive his child of a life-saving blood transfusion.

Circumcision isn’t a medical emergency — or even medically indicated — and this boy isn’t an infant who’ll never remember what was done to him. He’s twelve years old, old enough to understand the procedure. Does he want part of his hoo-ha cut off? Shouldn’t the law ask?

Since the 1950s, the Supreme Court, in the context of cases involving both contraception and abortion, has generally expanded the rights of teenagers when it comes to their own bodies. Harvard Law School professor Martha Minow, an expert in family law and in cases involving religious rights, would like to see that precedent extended in Oregon.

“If the child at issue is 12 years old, a court would rightly consider that individual’s own view — about religion and about the procedure at issue — perhaps not as the ultimate basis for the decision but as a vital input,” Minow wrote in an e-mail to the Forward. “Legally, morally, and practically, the view of an emerging adolescent would be highly germane here just as it would for a medical decision facing a pregnant teen.”

• If minor girls can have an abortion, why can’t minor boys refuse a circumcision?

• Why does the father’s conversion to Judaism necessitate elective surgery on the son?

• Does the father plan to have the boy circumcised in a hospital by a surgeon, or in a temple by a rabbi?

Apparently, others are also asking these questions:

The acceptance of the case by Oregon’s highest court is surprising, because judges generally grant a wide degree of latitude to custodial parents — so much so, in fact, that the state’s Court of Appeals rejected the mother’s case without issuing an opinion.

It’s a good bet the Oregon Supreme Court didn’t accept this case merely to restate settled law.