By Jake Aryeh Marcus
Evading answering the question of whether the forced circumcision of a 12-year-old boy is harmful or raises constitutional issues at the federal or state levels, the Oregon Supreme Court, on January 25, 2008, ruled that:
“[A]lthough 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.”
This ruling affirms that, in Oregon, a male child may be forcibly circumcised if the parents desire. The Court also ordered that a custody court determine the 12-year-old boy’s “attitude regarding circumcision” before deciding if a change in custody is warranted by a father’s forcing his son to be circumcised. The Court did not find that the boy will ultimately be allowed to choose whether to be circumcised. In Boldt v. Boldt, Lia and James Boldt, the divorced parents of 12-year-old “M,” are litigating whether James, who currently has primary custody, has the legal right to force “M” to be circumcised. Lia has argued that “M” does not wish to be circumcised and that, regardless, circumcision is not in his best interest. James has argued that, as custodial parent, he has an absolute right to force “M” to be circumcised. He has also argued that his constitutional freedom of religion protects his decision to forcibly circumcise “M” because he has converted to Judaism, and claims that, when he was nine, “M” converted as well.
Doctors Opposing Circumcision filed an amicus brief on behalf of Lia Boldt, arguing in part that “M” is constitutionally entitled to the protection of an Oregon state law outlawing female circumcision, aka female genital mutilation. The American Jewish Congress, the American Jewish Committee, the Anti-Defamation League, and the Union of Orthodox Jewish Congregations of America jointly filed an amicus brief on behalf of James Boldt’s argument of religious freedom.
Under the Court’s ruling, if it is determined that “M” does not want to be circumcised, the trial court must then determine whether “forcing 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” (emphases in original). Only if the trial court determines that forcible circumcision could adversely affect “M”‘s relationship with his father will the court then consider whether a change in custody to “M”‘s mother is in the child’s best interest. Under the Court’s decision, James Boldt may still be allowed to forcibly circumcise “M” if the trial court determines that to do so would not adversely affect their relationship.
Under Oregon state law, determining a child’s wishes or best interest can be done through interviews with and examinations of the child, as well as with the assistance of a variety of experts. Throughout this process, “M” will remain in the custody of his father, despite Lia Boldt’s assertion that “M” has said he fears disagreeing with his father’s decision. Those fears may be well founded: James Boldt’s role in their marriage as his wife’s physically abusive “god’” or “sovereign’” was described in an earlier decision of the Oregon Court of Appeals.