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Oregon High Court Rules In Custody Case Involving Religious Circumcision Dispute

By Howard Friedman

Yesterday the Oregon Supreme Court decided a widely followed change-of-custody case which raises issues of parental rights and Jewish religious circumcision. In Boldt v. Boldt, (OR Sup. Ct., Jan. 25, 2008), the court was faced with an appeal by a now-divorced mother who is a member of the Russian Orthodox Church, seeking to prevent her former husband-- a convert to Judaism-- from having their 12-year old son circumcised. Among other claims, the father argued that "American Jews must be free to practice circumcision because it is and has been one of the most fundamental and sacred parts of the Jewish tradition." He contended that any order requiring an evidentiary hearing on the matter would usurp the role of the custodial parent and violate the First Amendment.

Instead of reaching a decision on custody, the court remanded the case, ordering the trial court to determine whether the child wants the circumcision, or objects to it-- an issue over which the parents disagree. The court said:

We conclude that, although circumcision is an invasive medical procedure that results in permanent physical alteration of a body part and has attendant medical risks, the decision to have a male child circumcised for medical or religious reasons is one that is commonly and historically made by parents in the United States. We also conclude that the decision to circumcise a male child is one that generally falls within a custodial parent's authority, unfettered by a noncustodial parent's concerns or beliefs -- medical, religious or otherwise....

However, ... at age 12, M's attitude regarding circumcision, though not conclusive of the custody issue presented here, is a fact necessary to the determination of whether mother has asserted a colorable claim of a change of circumstances sufficient to warrant a hearing.... [F]orcing M at age 12 to undergo the circumcision against his will could seriously affect the relationship between M and father, and could have a pronounced effect on father's capability to properly care for M.... Thus, if mother's assertions are verified the trial court would be entitled to reconsider custody....

(See prior related posting.) Today's Oregonian has extensive coverage of the decision. [Thanks to Steve Sheinberg for the lead.]

Full post as published by Religion Clause on January 26, 2008 (boomark / email).