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Divorce, Religion, and Circumcision: What A Conflict Tells Us About Parental Rights


Wednesday, Nov. 28, 2007

Years ago, in Oregon, James and Lia Boldt divorced, and James became the custodial parent of their son. In 2004, James converted to Judaism. Now, James wishes to have a ritual circumcision performed upon his 12-year-old boy, but Lia, who is Russian Orthodox, is strongly opposed to his doing so. Earlier this month, the Oregon Supreme Court heard arguments on the question whether Lia should be able to keep James from proceeding with the circumcision of their son.

Though it is, in some respects, very unusual, this case nonetheless highlights a somewhat hidden and more widespread assumption embedded in our laws - that if a couple's mainstream religion requires them to inflict harm upon their child, then the law will not interfere with that prerogative.

The Unusual Case of a Later-in-Life Circumcision

The case of Boldt v. Boldt represents a departure from the ordinary. Most couples in the United States decide whether or not to circumcise a son when he is still a newborn baby. The procedure is quite common, among both Jews and non-Jews, though decreasingly so over time. Muslim circumcision - which some view as mandatory and others as recommended - can take place at any time between birth and puberty, though it is often performed on infants.

There are still those who claim that the procedure is painless for newborns, though such claims seem inconsistent with the infant's capacity to feel pain and discomfort in other respects. Nonetheless, because no one can "ask" a newborn about the sensation, and because he might not remember the experience for very long, it strikes some who observe the ritual as relatively innocuous. Perhaps because the newborn baby is still so different from the rest of us, we can imagine - as many do in the case of other sentient animals - that their experience of pain is somehow not as terrible as our own. (And yes, I realize that one could say this of unborn babies as well, but that discussion is for another day.)

In addition to minimizing infant suffering, some defend circumcision by making claims about its health benefits. People have long noted that, in the absence of proper hygiene, an uncircumcised man is more likely to develop an infection. This may explain the development of circumcision as a religious practice in places and times at which clean water was scarce, though proper hygiene is far easier in modern times in the United States. Beyond the hygiene point, however, experimental research has demonstrated that circumcision reduces the risk of men acquiring HIV from heterosexual intercourse by about 50%. This statistic sounds impressive, but the reality in the U.S. is that most HIV infections in men are acquired through sex with other men. Therefore, if one is intent on protecting American male children from HIV infection, circumcision would not appear to be the first line of defense.

In the Boldt case, the boy at issue is not a newborn but an adolescent, a 12-year-old, who not only has the self-evident capacity to feel pain but who could also offer his own opinion on the question of whether he should have his foreskin amputated. So far, we do not know from press accounts what the boy thinks about his father's plans, although his mother claims that he is opposed yet reluctant to say so. Even assuming, however, that the 12-year-old is neutral on the question, the notion of subjecting a child his age to such a surgery would likely seem barbaric to many people. There is, after all, no medical need to circumcise the boy. His foreskin is, so far as we know, not plagued with any disease or other malignancy. No doctor has offered the medical opinion that the family really ought to circumcise the boy. The only reason to do it is that his father has found religion and wishes to bring his son into the faith.

The child also - and significantly - has a second parent, a mother, who does not want her child circumcised. The mother therefore can and does make arguments on the child's behalf that would ordinarily be unavailable to him - such as the suggestion that amputating a healthy part of a child's anatomy containing a concentration of nervous tissue is child abuse. If that argument sounds persuasive to the reader, it is at least in part because the case does not involve either an infant or a unified couple asserting its unambivalent authority over its offspring.

In other words, the conflict between the parents allows scrutiny of practices that would ordinarily go unexamined and permits us to ask a question that we usually refrain from asking: Is circumcision in the best interests of the child?

Other Religious Practices: When Beliefs Imposed on Children Predictably Cause Them Harm

To avoid singling out circumcision, I must note that many other religious practices threaten harm to children. Richard Dawkins, for example, argues provocatively in The God Delusion that although child sexual abuse by priests is reprehensible, the far greater trauma inflicted by religion lies in teaching young children that they will burn in eternal hellfire if they fail to carry out their particular religion's requirements (whether that means having faith in a deity, performing commandments, or refraining from acting in ways that are arguably innocuous but that some religions consider offensive).

An interesting memoir that exposes the potential psychological impact of such religious training is Shalom Auslander's new book, Foreskin's Lament, in which the author torments himself over the question - among many others - of whether or not to circumcise his son (or, as he describes it, whether or not to mutilate his child's genitals because some "maniac, 6000 years ago, did it").

To get a sense of how completely secular people who are not already committed to religious practices might view things, consider the following analogy: A couple tells its 5-year-old child at bedtime every night that if he ever feels any anger at his mom and dad, then a monster will come to him at night in his sleep and smother him with a pillow. Each morning, when he wakes up un-smothered, his parents tell him that if he was in fact harboring angry feelings toward them, then the monster in question will save up the smothering and one day come and suffocate him for all of eternity. Imagine, as well, that when the child reaches the age of 6, his parents remove half of their son's left pinky toe. They argue that he can walk adequately without it, and they feel a very strong compulsion to remove what they view as ugly and impure.

Most of us would find this behavior outrageous and even criminal. A child is already prone to be terrified of monsters and supernatural creatures that he believes could cause him harm. This explains the appeal of books like "Where the Wild Things Are" that confront such feelings head-on and show children that they are more powerful than their fears. To play on those fears and inflame them, instead, in an effort to manipulate behavior, would seem not only cruel but psychologically destructive and traumatic. Removing part of a child's foot for no reason other than a feeling that one simply has to do so - a compulsion - appears to represent senseless violence that no one - least of all a child's caregivers - should be free to inflict upon him.

Religious Pluralism: Why We are Loath to Intervene in Such Parental Decisions

One reason for our collective decision generally not to intervene in one another's religious practices, despite what I have said, is that such intervention could easily lead to the persecution of a minority religion by a majority religion.

People would tend, in other words, to view arguably abusive practices that are part of a "mainstream" religious observance as unobjectionable, while viewing practices of "other" religious groups far more critically.

Indeed, any prohibition against circumcision would as likely reflect hostility to Jewish or Muslim practice as it would to reflect a concern for the wellbeing of children, much in the way that prohibitions against Kosher slaughter in Nazi Germany reflected anti-semitism rather than any sincere worry about animals. Nazis were not in fact kind to animals (contrary to popular belief) but merely used the idea of animal welfare as a pretext for singling out Jews for persecution.

Putting Our Trust In Parents to Make the Right Choices for Their Children

In the end, the issue is one of trust. We tend to believe that parents will make the right choices for their children, even when those choices involve suffering.

Even outside the context of religious observance, ambitious parents have been known to pressure their children to practice a musical instrument, or train for an athletic pursuit, to a degree that would strike many of us as harmful. We may tolerate this as a society, however, because the state is even less to be trusted in the rearing of children than are the parents who love them.

It is when parents disagree with each other and ask the courts to step in that we are uniquely able to consider some of the harm to which people expose their offspring. The Boldt case thus may, in this way, help us focus on what is otherwise "routine" in parenting and perhaps become more sensitive to the sorts of harm that we might otherwise continue to take for granted.

Sherry F. Colb, a FindLaw columnist, is a Visiting Professor at Columbia Law School. Her book, When Sex Counts: Making Babies and Making Law, is currently available on Amazon.

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