High Court takes circumcision decision away from rabbinical courts

The case involved the question of who should decide whether a baby gets a circumcision when divorcing parents disagree on the issue.

Brit milah ceremony 311 (photo credit: Courtesy)
Brit milah ceremony 311
(photo credit: Courtesy)
In a decision going to the heart of balancing religion and democracy, the High Court of Justice on Sunday took away the rabbinical court system’s authority over whether a divorcing couple had to circumcise their son.
The court voted 6-1 to cancel a rabbinical court order compelling the couple to circumcise their son over the mother’s objections and to move future consideration of the issue into the family court system.
Deputy Supreme Court President Miriam Naor, Justices Salim Jabraun, Esther Hayot, Hanan Meltzer, Yoram Danziger and Neal Hendel voted in the majority against Justice Elyakim Rubinstein.
Chief Rabbi Yitzhak Yosef, who serves as the president of the Supreme Rabbinical Court of Appeal in Jerusalem, weighed in on the ruling, saying the civil courts were deliberately encroaching on the jurisdiction of the rabbinical courts.
“The decision of the Supreme Court to give preference to a civil court over a religious one for religious matters such as brit milah is another worrying step in an ongoing trend of recent years to reduce the authority of the rabbinical court’s,” said Yosef.
“As president of the Supreme Rabbinical Court, I call on the president of the Supreme Court to hold another hearing on this matter, to annul this strange ruling, and to out an end to the erosion of the status of the rabbinical courts,” he added.
“In the current political environment, when every week new anti-religious laws are proposed, it is natural that the Supreme Court continues in its rulings, which oppose Jewish heritage and our right of existence here in this land as Jews and contributes to divisions among the people,” said United Torah Judaism MK Meir Porush in response to the ruling.
“This ruling is another severe step in which Jewish judges forbid the fulfillment of a mitzva for which the Jewish people sacrificed its lives for throughout the generations,” he said.
The Justice Ministry said the legal assistance clinic that shepherded the case through the High Court said the case was one of “mammoth proportions” and that it was fitting that “all of the consequences and considerations” be taken into account by the “proper authority.”
Hiddush, a religious-freedom lobbying group, welcomed the ruling and said the rabbinical judges had only themselves to blame, since they overstepped their authority and had “ignored the decisive principle of what is good for the child.”
In March, Attorney-General Yehuda Weinstein told the High Court that the family courts, not the rabbinical courts, should decide whether a baby gets a circumcision when divorcing parents disagree on the issue.
He said that the issue of circumcision does not fall under the heading of “divorce issues” in the rabbinical courts’ jurisdiction, since it is not directly related to severing relations between a couple – the legal test for that jurisdiction.
The court’s majority ultimately accepted those arguments.
Naor said the issue is unrelated to divorce issues within the rabbinical courts’ jurisdiction, because parents have the right to consider what is in their child’s best interests whether they are still married or already divorced.
In an impassioned dissent, Rubinstein quoted an array of biblical and rabbinic sources in Jewish law on circumcision being at the very core of the Jewish religion.
He agreed that the rabbinical courts had mishandled the issue and disregarded a full analysis of what was in the child’s best interests, but preferred to send the case back to the rabbinical courts for a second evaluation.
Even Naor noted the monumental significance of circumcision in Jewish culture, being virtually universally observed by secular Jews along with religious Jews, and that Jews over the centuries had given their lives to defend their right to circumcise.
“For years it was clear to everyone that the masses of Jews in Israel willingly circumcise their children through their own free choice,” said Hiddush director Reform Rabbi Uri Regev. “The rabbinical court in Netanya made a huge mistake in turning the issue of circumcision into a question of [religious] coercion.”
On February 26, a seven-justice panel of the High Court heard the dispute in which the Rabbinical High Court had ordered the mother of a one-year-old boy to circumcise her son in keeping with the wishes of the boy’s father. At the end of the hearing, the High Court requested Weinstein’s opinion on the broader issue of whether family courts or rabbinical courts should rule on this issue.
Weinstein had already written the High Court on February 11, saying the rabbinical courts had exceeded their authority by intervening on the circumcision issue, noting that anesthesia and a special surgical procedure would be required, removing the issue from the rabbinical courts’ authority.
Weinstein reiterated this position in his response to the High Court’s question about what the general rule should be if no special medical issues were involved.
The mother and father are in divorce proceedings before the Netanya Rabbinical Court, which intervened in the parents’ dispute over whether to circumcise their son, ruling that it was in the boy’s best interests to be circumcised.
That court even fined the mother NIS 500 per day until she had her son circumcised. The Rabbinical High Court confirmed the Netanya Rabbinical Court’s order.
The identity of all the family members is under a court-imposed gag order.
Following the initial court order, the mother petitioned the High Court on December 18, 2013, to intervene on the grounds that the Netanya Rabbinical Court did not have authority over whether parents circumcise their children.
Justice Danziger froze the rabbinical court’s ruling the same day the petition was filed.
In its February 26 order the High Court said it was focusing on three questions: does any judicial body have authority to intervene on the issue; do the rabbinical courts specifically have authority; and if the rabbinical courts have some degree of authority, is there a basis for the High Court to give the rabbinical courts directives in using that authority? The mother’s lawyer, Avigdor Feldman, told the High Court she opposes the practice of circumcision and rejects the rabbinical courts’ claim of authority based on the best interests of the boy.
Feldman said the rabbinical courts’ claim was based on an incorrect interpretation that circumcision is in the boy’s best interests.
Rather, he said, there was no medical necessity, and the issue was merely an ideological dispute between the parents. Feldman added that the question of circumcision is between an individual and God, and beyond any human court’s right to interfere.
The justices’ questions varied widely during the hearing, with some appearing to agree that stepping into this issue could lead to family courts ruling whether children must eat matza on Passover.
Others implied that failing to intervene and order the child’s circumcision now could hurt him socially later in life.
Lawyer Shimon Yakobi, representing the rabbinical courts, said it is crucial to uphold their authority in recognizing them as equal and valid courts within the judicial system.
Following the hearing, the mother said: “Social pressure is no reason to force cutting my son’s body; as nature, the universe, created him naturally.”