Always check your assumptions.

I’m always curious to see how our biases encourage us to frame reality. It can be something as simple and unimportant as complaining that the umpire squeezed the strike zone on your team’s starting pitcher instead of admitting that each pitch consistently passed the plate over the batter’s box. Or it can be something more, as this entry demonstrates in referencing the U.S. Supreme Court’s refusal to hear the Oregon circumcision case, which I mentioned yesterday.

UPDATE – My good friend Rabbi Zalman Berkowitz at miyan this morning reminded me that a conversion is in almost all cases not complete without the bris. In other words, the Supreme Court is preventing the kid from his religious aspirations by not ruling in favor of the father. It is not going too far out on a limb to come to the conclusion that this case prevents freedom of religion, and is an invasion of privacy. The case now goes back to an Oregon judge to determine whether the boy wants to undergo the procedure.

That’s an interesting way of analyzing the Court’s decision that is self-evidently wrong. The blogger assumes that the boy wishes to convert and have himself circumcised. The Oregon Supreme Court concluded that it did not know the answer to that question, only the stated claims of the father (for) and mother (against). The Supreme Court is merely saying that procedural paths short of its consideration have not been exhausted. The Court did not close the option for the boy to undergo circumcision if he indeed wishes to convert and undergo circumcision. But assuming the boy wants the circumcision is (at least) one assumption too many.


It’s worth remembering that the Oregon Supreme Court established two tests for the lower court to use in its evaluation. If the boy wants circumcision, the case is over. Fair enough, you will hear no complaints from me. His body, his choice.

But if the boy does not want circumcision, the case continues, with the lower court instructed to determine if the father’s imposition of circumcision would cause irreparable harm to his relationship with his son. The court essentially ignored that this would be the imposition of medically unnecessary genital surgery on an individual who objectively denies consent. One person is granted property rights over another if the court rules using a subjective test. Apart from being ethically wrong, that is hardly a precedent for arguing that the state is preventing freedom of religion.

This is also a good time to again state my position on ritual child circumcision. The problem with ritual child circumcision is not its religious aspect. The age – and by extension, ability to consent – of the circumcised is the sole issue. The child can’t consent. He might not consent when he can decide for himself. The surgery under consideration is not medically indicated, making this solely an issue of self-ownership. Each person has an exclusive liberty interest in his (or her) body. No one has an option for proxy consent that can ever legitimately overcome this natural right. Claiming a First Amendment protection is no help because the child retains his right to – and from – religion, independent of his parents’ opinion. Government also has a legitimate interest in preventing the imposition of objectively identifiable physical harm on another who can’t consent.

I’ve written in the past that the age of majority should be the legal standard for non-medically-indicated surgery. However, I am not opposed to a competent minor deciding for himself that he wants to be circumcised, for whatever reason he prefers. A 12- or 13-year-old may have developed sufficient maturity to decide this for himself. Perhaps the child in this case fits that, and if so, again, you will hear no complaint from me about his decision or his father’s willingness to grant that request.

Disclosure: I would not consent to the procedure if my (hypothetical,) healthy 13-year-old son asked to be circumcised, if that matters in considering my analysis. Saying “no” to a child’s wish for non-medically-indicated surgery is a legitimate parenting choice. Saying “yes” over a child’s objection is not. The former is a temporary denial of a liberty interest based on the parents’ subjective judgment. The latter is a permanent denial of a liberty interest based on the parents’ subjective judgment. The subjectivity of parental judgment is the crux of this case, as well as the general topic of child circumcision.