Ore. Court Mulls Circumcision Case

SALEM, Ore. — Six justices of the Oregon Supreme Court are wrestling with the question of what to do when divorced parents disagree about whether a child should be circumcised.

For an hour yesterday, the judges heard arguments in a child custody dispute between James Boldt, who wants his son circumcised as part of the son's conversion to Judaism, and the child's mother, Lia Boldt, who went to court to block the procedure. The child, who was 9 at the time the issue arose in 2004, is now 12.

A county judge dismissed Mrs. Boldt's challenge, but blocked the circumcision from taking place until all appeals were exhausted. The mother's attorney, Clayton Patrick, told the court that the circumcision posed "an unreasonable and unnecessarily high risk to the child." Mr. Patrick was quickly challenged by Judge W. Michael Gillette, who asked whether courts should step in when a divorced couple disagrees about whether a child should play football.

"More people get hurt playing football than from having a circumcision and a lot more seriously," Judge Gillette said. He said family court disputes over going out for football were a "necessary consequence" of the mother's position. "That's preposterous. I hope you recognize that cannot work," the judge said. Mr. Patrick said that, even though the father had full custody of the child, the mother was entitled to a court hearing because, based on her review of information about circumcision, the practice amounts to "sex abuse or physical abuse."

"If the custodial parent wanted to amputate some other body part, I think the court would step in and say you can't do that," the attorney said. Mr. Boldt, other family members and the doctor who would perform the circumcision said the boy wanted it. However, Mrs. Boldt said her son told her that he did not want to be circumcised and was afraid to contradict his father. Some of the justices asked whether the courts should take the child's views into account, either when he was 9 or at age 12.

"The child's wishes, while of course they should be considered, are not legally decisive or, legally speaking, relevant," Mr. Boldt, who is a lawyer and has represented himself in the legal proceedings, said. Judges speculated about whether custodial parents had the right to impose genital mutilation or a nose job "on children whose faces are just fine." "Are there no limits?" one judge asked.

When Mr. Boldt said he thought a custodial parent could do anything that wasn't illegal to a child, Judge Rives Kistler replied, "That seems a real broad claim. What if they wanted to have tattoos put on the child's face?"

Mr. Boldt said some actions might be so outrageous that they called into question a person's fitness as a parent. A tattoo on a child's shoulder that says "Mom" would be a different matter than "a swastika on the forehead," he said.

Mr. Boldt insisted that the court should not single out circumcision for greater scrutiny than other parenting choices. "There's no principled, intellectually defensible, legally supportable reason to extract that one category," he said. Much of the hearing discussed whether Mrs. Boldt was automatically entitled to a formal evidentiary hearing on her objection and, if not, what evidence she had to produce to get such a hearing.

The Oregon jurists appear to be the highest-ranking American court to hear a dispute involving circumcision, according to a New York University law professor who has written on the issue, Geoffrey Miller. "It will be a precedent that will be closely paid attention to by people who are interested in that debate," the professor said. "I would be quite shocked or at least surprised if the result in the Oregon Supreme Court undoes what the lower courts said."

A Portland rabbi who attended the argument, Daniel Isaak, said he was surprised that there was little discussion of the religious freedom aspect of the case. "Circumcision is a basic rite of conversion" for Jewish men and is also practiced by Muslims, the rabbi said.

Four Jewish groups, the American Jewish Congress, the American Jewish Committee, the Anti-Defamation League, and the Orthodox Union, filed an amicus brief backing Mr. Boldt. A physicians' group, Doctors Opposing Circumcision, filed a brief supporting Mrs. Boldt.

The anti-circumcision brief notes that during a prior court proceeding unrelated to the circumcision issue, the Boldts agreed that they had a dominant-submissive relationship — in which Mr. Boldt was "god" or "sovereign" — and that sometimes involved Mr. Boldt administering beatings to his wife, who assumed the role of "slave girl." The Boldts' son "must not be abandoned by the courts, to become embroiled in his father's need for a replacement slave … if that is what happened," the anti-circumcision group argued.

Mr. Boldt declined to be interviewed as he left court yesterday. The groups defending circumcision stated in their brief that they were taking no position on "who is the more appropriate parent."