News from the Oregon Supreme Court hearing.

I remain pessimistic about the circumcision case in Oregon. I still hold out hope that the judges will put the boy’s circumcision on hold until he reaches turns 18, a compromise a court reached last year in Illinois. It would be an important step, but that’s the ceiling of my expectations. News reports from the hearing don’t help, although I understand that judges will pursue contrary positions to discover facts and analyze ideas:

A county judge dismissed Mrs. Boldt’s challenge, but blocked the circumcision from taking place until all appeals were exhausted. The mother’s attorney, Clayton Patrick, told the court that the circumcision posed “an unreasonable and unnecessarily high risk to the child.” Mr. Patrick was quickly challenged by Judge W. Michael Gillette, who asked whether courts should step in when a divorced couple disagrees about whether a child should play football.

“More people get hurt playing football than from having a circumcision and a lot more seriously,” Judge Gillette said. He said family court disputes over going out for football were a “necessary consequence” of the mother’s position. “That’s preposterous. I hope you recognize that cannot work,” the judge said.

By conventional thinking, yes, football causes more injuries. But circumcision is physical harm when acknowledging the facts. It is the non-medically necessary surgical removal of healthy, functioning genital tissue. By any definition, that is harm.

However, accepting the judge’s far-too-typical view, football injuries don’t always leave scars, but circumcision leaves at least a scar in 100% of cases. Just as useful to understand, the child hasn’t consented to being circumcised, unlike the child who gets hurt playing football that he presumably consents to playing.

This is about liberty. Judge Gillette’s concern is not the outcome if his questioning pursued the correct constitutional issue rather than the irrelevant family law issue. Playing football and surgically removing healthy portions of a child are hardly comparable. Remember, also, that only male children are legally subjected to this parental decision, which should be the screaming indicator that this is a constitutional issue of the child’s individual rights rather than a squabble over parental “rights”. Hacking at your child’s healthy genitals is not a right.

“The child’s wishes, while of course they should be considered, are not legally decisive or, legally speaking, relevant,” Mr. Boldt, who is a lawyer and has represented himself in the legal proceedings, said. Judges speculated about whether custodial parents had the right to impose genital mutilation or a nose job “on children whose faces are just fine.” “Are there no limits?” one judge asked.

When Mr. Boldt said he thought a custodial parent could do anything that wasn’t illegal to a child, Judge Rives Kistler replied, “That seems a real broad claim. What if they wanted to have tattoos put on the child’s face?”

Mr. Boldt said some actions might be so outrageous that they called into question a person’s fitness as a parent. A tattoo on a child’s shoulder that says “Mom” would be a different matter than “a swastika on the forehead,” he said.

Mr. Boldt’s moral relativism is obvious, but unfortunately, it’s not surprising given how willing people are to engage in moral relativism when it comes to male circumcision. It’s useful to bring it into the debate, if only the court wisely smacks it down in favor of gender-neutral individual rights.

Mr. Boldt insisted that the court should not single out circumcision for greater scrutiny than other parenting choices. “There’s no principled, intellectually defensible, legally supportable reason to extract that one category,” he said.

How did Mr. Boldt pass any state’s bar exam?

To demonstrate more reason for pessimism, those on the correct side of liberty and facts aren’t helping.

“We’re not talking about an infant circumcision here,” said Clayton Patrick.

Remember, Mr. Patrick is Lisa Boldt’s attorney. When does Mr. Patrick believe the individual right to remain free from unnecessary genital surgery at the whim of another begin? With friends like these…

And now the core claim that I hear too often:

The parents dispute whether the boy wants to be circumcised. The trial judge did not interview the child or appoint an attorney to represent him.

But James Boldt said that legally it doesn’t matter what the boy wants. Custodial parents get to make medical decisions for their children, he said.

The law is wrong because it treats children like parental property. Circumcision is not a medical decision when it is not medically indicated (i.e. routine and/or ritual circumcision). That’s what the court needs to acknowledge.