Re: Circumcision/custody case in Oregon


"Eliyahu" <lrooff@xxxxxxxxx> wrote in message
news:1187534022.243527.92900@xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
On Aug 18, 7:37 pm, "Jonathan J. Baker" <jjba...@xxxxxxxxx> wrote:
In <> Eliyahu <lro...@xxxxxxxxx> writes:

On Aug 17, 2:38 pm, "Jonathan J. Baker" <jjba...@xxxxxxxxx> wrote:
Or does the father claim the mitzva of circumcision applies even
though the son is not Jewish (which is a possible, if not accepted,
reading of the bare law in the Shulchan Aruch: "it is a mitzvah on
the father to circumcise his son.")
But isn't it also implied or assumed in there that 1) the son is
Jewish; and 2) that it will be done on the 8th day per the
commandment?

That's my problem - it's an unstated assumption, and unstated in the
commentaries ad loc. as well. So why does everyone seem to assume it?
Is the son not his, if not Jewish?

The biggest halachic problem I see if one argues that he has the right
or duty to circumcise the son of a non-Jewish spouse is that, since a
bris is a sign of the covenant and of one's Jewishness, it provides
almost unassailable support for patrilineal descent. Can't have it
both ways.

Eliyahu




Dad is a Ger and from my reading, plans to raise the son Jewish. In working
towards conversion, he is planning for the son to undergo brit milah. All
that seems standard for someone converting. All this other stuff about
whether the father is required to circumcise a non-Jewish child, etc, seems
superfluous. If you are male and converting, part of the process is brit
milah, along with mikvah, beit din, etc., which many of you have reported in
many previous posts. The issue is only partly about whether the father can
insist on the physical act of circumcision. The primary issue is whether the
father can choose a religious upbringing for his child different from the
child's original upbringing and that of the mother. And secondarily, if that
decision includes circumcision, how does one factor in that rite as part of
the parent's right to choose a religion for his child.

Putting on the dusty lawyer hat -

The Oregon Supreme Court is focusing on who gets to decide the religious
upbringing of the child. And by adding the issue 'welfare of the child,' the
Oregon Supreme Court seems to be bringing in the basic standard for
decisions about children - what is in the best welfare of the child. In this
case it means, can the father raise the child Jewish. And by also
considering "the weight that religious considerations should be given when
considering the welfare of a child, " it seems the judge will examine
whether the religious nature of a rite overweighs the potential for and
impact of physical or emotional injury to the child. That's the part which
has me concerned about whether the judge will draw analogy to FGM and find
brit milah analogous.

Now, if I understand correctly, Mom is alleging son does not want a
circumcision but is afraid to tell dad. How many 12 year olds would want to
have a painful procedure to their privates? But does that also mean the
child does not want to be Jewish? If I were the trier of fact (the judge) I
would want to know whether son really wants to be Jewish? Or - is he doing
it to please dad? Or - because he was angry at his mom and didn't want to
identify with her? Or - does son really want to be Jewish but is so afraid
of the procedure that he can't get past it? Or - might he be saying he
doesn't want it out of loyalty to mom (doesn't want to reject her and/or the
part of himself that is 'her')? But the current secular legal issue actually
does not require the child's input at all, even if the sincerity of
conversion is a Jewish legal issue.

The legal issue is a parent's right to decide the religious upbringing of
his child. I think none of us would disagree that we parents get to set the
religious and moral milieu for our children. Where both parents agree, there
is no issue. But in families where there are two faiths (even two Christian
religions) and when there is a divorce, the conflict becomes something that
can wind up in court. So much for separation of church and state.

Which parent gets to decide the religious upbringing of the child? Usually,
its the custodial parent. But with the advent of splitting custody into two
components (physical and legal) and with more families endowing both parents
with joint legal custody (which requires that both parents have equal say in
the choices made for the child in health care, education, etc.,), there is
no longer the supposition that whoever has physical custody gets to make the
decisions (well, depending on the judge, how the parties present themselves
in court, and all sorts of intangibles. Many of these cases get decided in
motion session, without a full trial, and never get to the stage this case
is in).

And what about the child's preferences? In Judaism, the child must ratify
this choice upon becoming 13. But the secular legal standard, whether the
child has a 'voice' in issues of upbringing, changes from state to state. I
think most states say 14 or 15. As a rule, most judges I went before would
solicit the child's input at a much younger age - not as a definitive thing,
but to gauge maturity and to figure out how much parental coercion is going
on. But judges are not bound by the child's preference. That changes at the
age when a child may have input into decisions about their upbringing
(usually, physical custody). So if mom can drag this out long enough, she
makes the appeal issue moot. Once the child has the legal right to say what
he wants, the issue of parental choice in this matter is nullified.

And as for which holds more weight, the religious rite or magnitude of the
impact on the child's welfare? - Can't quite see where the court is going on
that one. Will the court decide that the trial judge weighed the impact
already - and correctly - and the impact is not so great as to be a negative
to the welfare of the child? Or will the judge find the trial judge was
wrong about the facts or didn't investigate the facts enough. If then, will
the court remand to a lower court to investigate the issues of fact or make
a decision as a matter of law. If the latter, will it be a matter of law
that a religious rite's benefits outweigh the impact? Or that this rite,
involving cutting of intimate parts of the body, is different than rites
with no cutting and requires different scrutiny - or should not be required
at all as a matter of Oregon law.

Lots of ways the court can go with this.

Adelle


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