Attorney General Yehuda Weinstein urged the High Court of Justice on Tuesday to overturn a rabbinical court ruling ordering a woman to circumcise her son.
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In a brief submitted to the High Court, Weinstein said the rabbinical court had “exceeded its authority.” Moreover, he added, “it’s doubtful that the rabbinical court’s decision was based on the principle of the child’s welfare.”
The case arose out of divorce proceedings between the woman, known as Elinor, and her estranged husband. During those proceedings, conducted in the Netanya Rabbinical Court, the husband, angry over Elinor’s refusal to circumcise their son, asked the court to order her to do so.
The rabbinical court sided with the father, saying that circumcision is a religious obligation. It also ruled that for every day on which Elinor refused to circumcise her son, she would be fined 500 shekels ($142) for contempt of court. This decision was subsequently upheld by the Rabbinical Court of Appeals, which added that circumcision would also benefit the child: He will want to integrate into the society of which he is part, and in a country where most of the population is Jewish, most boys are circumcised.
In December, Elinor appealed this decision to the High Court. Via attorneys Marcella Wolfe and Avigdor Feldman, she argued that forcing her to circumcise her son constituted religious coercion and violated her right to freedom from religion. Her attorneys also raised technical arguments about whether the rabbinical court had the authority to issue such an order.
The High Court issued an interim injunction freeing her of the need to pay the fine while the case was being heard, and an expanded panel of justices is due to hear the main case on February 25.
In the brief he submitted on Tuesday, Weinstein urged the court to accept Elinor’s appeal, saying the rabbinical court had no authority to issue its ruling.
Nevertheless, he rejected her claim that no court has the right to order her son circumcised against her will. Specifically, he cited two earlier cases in which family courts ordered a boy circumcised over the objections of one parent. He also cited a case in which a family court ordered a child placed on dialysis over the objections of both parents, and a case in which a family court ordered psychological counseling for a child when the parents were divided over the issue, with the mother in favor and the father against.
The question of whether the rabbinical court had authority to issue its ruling is central to the case. Elinor’s attorneys argued that the rabbinical courts have authority only over marriage and divorce. Weinstein similarly argued that the parental fight over circumcision should have been resolved in a civil court rather than a religious one, though he noted that this question has never been fully addressed in either the law or court rulings. But in any case, the question of whether the boy should be circumcised shouldn’t be decided as part of a divorce proceeding, Weinstein said.
“Our position is that in a situation where the circumcision entails anesthesia (or sedatives) − or so it is claimed − and therefore requires a doctor’s examination, then the circumcision is similar to medical treatment,” Weinstein wrote. “Thus the question of whether the circumcision should be performed ought to be decided by the primary courts that deal with medical treatments of minors, which are the civil courts. Even if the battle over the circumcision was born of a dispute between the parents, the decision on the matter, which requires a medical opinion, should still be made by the court authorized by law to discuss issues relating to the health of minors.”
Circumcision doesn’t usually require either anesthesia or sedatives, but Elinor had argued that it would in her son’s particular circumstances.
The medical issue also contributed to Weinstein’s conclusion that the rabbinical court hadn’t taken the child’s welfare into consideration. Because anesthesia is required, he said, the court should have requested a medical opinion before issuing its ruling. But even had there been no medical issue, he added, the welfare of the child required the court to request an evaluation by a social worker and to seek the attorney general’s opinion before making its decision.
The rabbinical court had argued that no medical opinion was necessary, because circumcision is a routine action performed on thousands of children, and normally no medical check-up is required.