Justices Focus On Procedure During Circumcision Arguments

By Colin Fogarty

Salem, OR November 6, 2007 3:37 p.m.

The Oregon Supreme Court heard oral arguments Tuesday on whether a divorced father can have his 12-year-old son circumcised. The father converted to Judaism. But the boy’s mother objects to the circumcision, saying the procedure would violate her son’s civil rights.

The case has attracted national attention since this is the highest court to consider circumcision. But as Colin Fogarty reports, the justices focused on more procedural issues.

Lia Boldt’s fight to keep her son from being circumcised has becoming a rallying cry for the Seattle-based group, Doctor’s Opposing Circumcision. Its attorney Clayton Patrick was hoping to convince the Oregon Supreme Court that circumcision -- especially for a 12-year-old boy -- is medically unnecessary, risky, and cruel.

He asked the justices to reverse a decision by lower court judge who sided with the parent who has custody of the boy, his father James Boldt.

Clayton Patrick: "She said I am of the opinion that this decision is reserved to the custodial parent. In other words, the custodial parent can circumcise the child, period. But with all due respect I think if the custodial parent had decided to amputate some other body part, I think the court could step in and say, no you can’t do that."

But Justice Michael Gillette was skeptical. What if the boy’s mother objected to her son being signed up to play football? he asked.

Michael Gillette: "She files an affidavit that says here are the national statistics who suffers serious physical injury from playing football. On that basis, I get custody. The answer to that is that’s preposterous, which I hope you recognize."

In fact the hour long hearing was full of analogies.

James Boldt, the father in this case, represented himself. He wondered whether a custodial parent could decide to send his child to Catholic high school, join the Boy Scouts, sign up for the military, or allow the child to date?

Boldt quoted legal briefs by his ex-wife to bolster his own argument.

James Boldt: "She said quote 'the child is not old enough to make that decision for himself. That is what parents are for.' And that may be the one thing that we agree on."

Boldt referred to himself in the third person, as the father or the custodial parent. He argued his ex-wife is asking the court to single out circumcision.

James Boldt: "And for all these other decisions that are probably far more important in the long run, for that the custodial parent makes the decision. There’s no reason and we have heard a reason sited by the other side..."

Robert Durham: "I agree with you. But that’s utterly beside the point."

That’s Justice Robert Durham getting to the point that appeared to be of most interest to the justices of the Oregon Supreme Court. They spent the bulk of their time avoiding the broad topics of circumcision and parental rights.

Instead, the court appeared to be focused on a procedural issue. Justice Durham said the question is whether the lower court made a mistake by failing to conduct a full hearing on whether this boy should get circumcision.

Robert Durham: "I promise you, we’re not attempting to weigh football versus the military versus tattoos etc in this case. The question has to do with the applicable legal standard and whether the trial court transgressed or honored the applicable rules that govern the request for a hearing."

In other words, did the mother’s concerns about circumcision rise to the level of requiring a full hearing.

The boy was nine years old when this case started. He’s 12 now. His father said his son told a doctor and other family members that he does want the circumcision as part of his own conversion to Judaism. But Lia Boldt said in court documents that her son told her he doesn’t want a circumcision but was afraid of contradicting his father.

All of that presents other questions to the court -- ones that are not procedural at all: what does the child really want and at what age does that opinion matter?