June 30, 2014
High Court relieved rabbinical courts of it's authority over circumcision decisionsIsrael’s High Court decided that family courts will decide whether a baby gets a circumcision when divorcing parents disagree on the issue, and not the rabbinical court that’s dealing with the divorce.
by Yonah Jeremy Bob
In a dramatic decision on religion and democracy, the High Court of Justice on Sunday took away authority from the rabbinical court system over whether a divorcing couple had to circumcise their son.
The vote to move the issue into the family court system was 6-1 with Deputy Supreme Court Justice Miriam Naor, Justices Salim Jabraun, Esther Hayot, Hanan Meltzer, Yoram Danziger and Neal Hendel voting in the majority against Justice Elyakim Rubsinstein voting in the minority.
In March, Attorney-General Yehuda Weinstein told the High Court of Justice that the family courts, not the rabbinical courts, should decide whether a baby gets a circumcision when divorcing parents disagree on the issue.
He explained that the issue of circumcision did not fall under the heading of “divorce issues” in the rabbinical courts’ jurisdiction, since it was not directly related to severing relations between a couple – the legal test for that jurisdiction. Weinstein added that the family court certainly could, and in some cases likely would, order a circumcision if it found it to be in the best interests of the child.
The court’s majority ultimately accepted those arguments.
Rubinstein 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.
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-ordered gag order.
Following the initial court order, the mother petitioned through the Justice Ministry’s Legal Assistance Division to the High Court of Justice 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 Yoram 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 opposed the practice of circumcision and rejected 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 was 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 was 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 was 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 naturally created him.”
All of the parties involved now have seven days to respond to Weinstein’s position before the court reconvenes on the issue.