IsraelandStuff.comJune 30, 2014
High Court relieved rabbinical courts of it's authority over circumcision decisions
Israel’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.
Earlier story
