This will probably be long; please humor me. Also, there are many issues of custody that I’m ignoring. I’m specifically focusing on how the Oregon Supreme Court addressed male genital cutting (i.e. circumcision) in its decision. Lest you decide from my last entry that I’m happy with the outcome, I’ll spoil the conclusion now and tell you that I am not. The decision is terrible in its dismissal of the clear violation of forced circumcision. I predict that the boy will eventually be circumcised, regardless of his wish. If he says no, the court will decide that the custodial father retains the “right” to impose elective surgery.
With that, the Court’s opinion in detail:
We allowed mother’s petition for review and on de novo review we now conclude that the trial court erred in failing to determine whether M desired the circumcision as father contended or opposed the circumcision as mother alleged. (1) Because we view that finding as a necessary predicate to determining whether mother alleged a change in circumstance sufficient to trigger a custody hearing, we reverse the decisions of the Court of Appeals and the trial court and remand the case to the trial court.
This seems so fundamental that I question how the Oregon Supreme Court can be blind to the issues surrounding circumcision. Obviously the proposed patient should be consulted. Indeed, barring medical need, his decision is all that matters. As we’ll see in a moment, all other considerations are extraneous. (Again, I am ignoring the custodial questions here.)
In the normal course, religious and medical decisions such as the one in this case, are considered private family matters determined by the parents or between parents and child, without resort to the courts. Unfortunately, however, these parties cannot or will not resolve this matter without court intervention.
As I’ve written before, normal and common have different meanings. They are not synonyms. The Court is correct that we commonly misbehave this way, but that is not normal. Just like having a foreskin is normal, while being circumcised is common.
Oregon does not allow parents the decision to cut the genitals of their daughters for any reason other than medical need. They cannot claim a deity’s commandment. They cannot claim a potential benefit. Without medical need, the state applies an absolute prohibition. As our society is built on individual rights, proxy consent must have strict rational bounds. Non-medical elective surgery is outside those bounds. Gender is not a valid basis for distinction.
Father also argued that the court lacked authority to grant mother’s motions because (1) granting the motions would violate father’s freedom of religion under the religion clauses of the United States and Oregon constitutions; …
The First Amendment’s protection of religious freedom is an individual right. By practicing your religion on the body of another, you have negated his individual right through substitution. That violates the spirit and letter of our Constitution. Any claim to the contrary is a mistaken display of ego.
… (4) the circumcision was medically advisable independent of the religious reasons for it; …
Doubtful. I’ll explain more on this in a moment.
… and (5) although M’s wishes were “legally irrelevant,” …
A child does not possess the option to fully exercise his (her) rights while still a minor. That is a reasonable acknowledgement that minors do not possess the mental ability to comprehend their actions. That does not mean they are the property of their parents until reaching the age of majority.
We would not permit parents to surgically amputate a child’s finger without medical need. There is no valid distinction that the foreskin from the same protection given to the pinky. Or the labia and clitoris. The father’s claim here is absurd bordering on obscene. The Court should’ve rejected it.
[M’s urologist Dr.]Ellen also stated that there was evidence of “glandular adhesions” on M’s penis that should have disappeared by age three, and that that fact alone was cause for recommendation for the procedure.
Again, this is normal versus common. It is normal for the foreskin to adhere to the glans at birth. This adhesion commonly breaks by an early age, but it is possible for the adhesions to remain into the teen years. The presence of adhesions does not automatically indicate medical need, just as an absence of adhesions does not automatically indicate medical health.
As the boy ages, the presence of adhesions merely raises the question of whether penile functioning is being restricted. If he can urinate successfully and normal erections are not hindered, there is no reason to hurry nature. If he cannot urinate successfully and/or normal erections are hindered, that is medical need requiring intervention. (Such intervention does not automatically mean circumcision.)
It matters that this case began three years ago when M was 9. There is a difference between 9 and 12. Also, irregular readhesions will occur if the foreskin is forcibly separated from the glans before the adhesion naturally breaks. This is common among the children of parents who are ignorant of proper care of the normal (i.e. intact) penis.
Under no circumstances is it normal to break this adhesion at birth on a healthy foreskin and penis, as the bond must be forcibly broken to circumcise. The results can be bad, beyond the guarantee of scarring and loss of erogenous tissue.
Ellen averred that circumcision is a safe procedure, that there would be some minor discomfort for about three days that would not prevent M from carrying on normal activities, and that M’s circumcision would greatly reduce M’s risk of penile cancer and certain infections.
It is a safe procedure that causes injury to every male circumcised, as evidenced by the scarring, and occasionally leads to more serious complications, up to and including death. Who is the best judge of whether or not this inherent risk is acceptable in the complete absence of medical need?
The doctor’s statement that circumcision would cause minor discomfort and a short healing period should be noted. The actual post-operative constraints from adult circumcision are little different, contrary to the scare tactics generally offered as an excuse to push the surgery onto children. This doesn’t have a direct connection to this case, but Dr. Ellen is using standard arguments to treat a specific case, so it warrants mentioning.
Of course, no circumcision advocate’s argument would be complete without the grand reliance on potential benefits against extremely minor risks. Remember, too, that those risks are almost universally based on behavior (e.g. smoking, promiscuity, lack of hygiene) rather than anatomy.
We agree with the trial court that the authority of the custodial parent to make medical decisions for his or her child, including decisions involving elective procedures and decisions that may involve medical risks, is implicit in both our case law and Oregon statutes.
Once again, Oregon already has a statue to forbid parents from imposing genital cutting on their daughters for any of the reasons the Court accepts here for male children. That is wrong. It violates Section 1 of the Oregon Constitution:
Section 1. Natural rights inherent
in people. We declare that all men, when they form a social compact are equal in right: …
I’m having trouble understanding any exception to that which excludes only the genitals of male minors. I don’t doubt that the law allows it, but where it does, the law is a ass.
Mother, joined by amicus curiae Doctors Opposing Circumcision (DOC), asserts that there is no more important decision to make for a male child than to require that the child undergo permanent modification to his body, and argues that an evidentiary hearing is required to find out whether M objects to the circumcision. She also contends that an evidentiary hearing is required so that she may present evidence regarding the harmful effects and permanent nature of circumcision. Indeed, mother and DOC assert that, because of the significant medical risks associated with circumcision, M should not be circumcised even if he states that he wants to undergo the procedure.
I agree with the last sentence, although I have written that I will not object in this individual case if M specifically wishes to be circumcised. But the primary logic in that paragraph is so fundamental that every lower court that ignored it should be ashamed. Individual rights, individual rights, individual rights, individual rights. This is not complicated. I’m not an attorney and I can grasp that. No individual is another’s property. It’s elementary, despite attempts to make it appear more complicated and nuanced. Male children are treated as such, but that does not make it legitimate. History will not be kind on our long dalliance with barbarism.
In response, father, joined by amicus curiae American Jewish Congress, American Jewish Committee, Anti-Defamation League, and Union of Orthodox Jewish Congregations of America (collectively, AJC), argues that the trial court did not need to hold an evidentiary hearing, because M’s attitude about whether he wants the circumcision is not legally significant. Father asserts that a child is not the decision-maker on such questions, any more than an infant who is circumcised. If the legislature had wanted a male child to have a say in whether he is circumcised, he contends, it could have adopted a statute to that effect, as it has done in other statutes such as ORS 109.610 (giving minors the right to consent to treatment for venereal disease without parental consent). Father also contends that the health risks associated with male circumcision are de minimus. In any case, father maintains that the affidavits he supplied to the trial court demonstrate that M does want to be circumcised.
Not legally significant. Again, what if a parent wanted to cut off a child’s finger? The child’s opinion would be legally significant then. There is no valid reason for an exception on the genitals of male children. It doesn’t matter if the child is 17 minutes or 17 years old.
The father is an attorney. I have no doubt he is aware of the law against female genital cutting. Firing up the Way Back machine to yesterday, the legislature’s silence on an issue is not the end of the discussion. Whenever the law and the constitution are in conflict, the constitution must wins. In other words, the law loses, legislatures be damned. Oversight does not grant legitimacy. The constitution guarantees equal protection. The law discriminates based on gender. The law is a ass.
For what it’s worth, I doubt the males who suffer complications from the inherent risks of circumcision do not consider them trivial. He can never guarantee that M will not suffer a complication. As such, we’re back to medical need. It is not necessary. Therefore, it is unacceptable to impose it. That is the only debate.
Finally, father and AJC argue that father has a constitutionally protected right to circumcise his son. They maintain that American Jews must be free to practice circumcision because it is and has been one of the most fundamental and sacred parts of the Jewish tradition. Father concludes that, if this court requires the trial court to hold an evidentiary hearing, we would usurp the role of the custodial parent and violate the First Amendment of the United States Constitution.
Lifting religious text above a constitution founded on principles of liberty is the way of theocracy. Worse, picking only the preferred requirements of a religious text is the worst possible intellectual dishonesty.
Slavery is in the Bible. We do not allow it. Polygamy is in the Bible. We do not allow it. Vigilante justice is in the Bible. We do not allow it.
And what of other religious texts? Do we start allowing any act that involves one person violating the rights of another, as long as it’s printed in an old book that many people value? Tradition, sacred or not, is a claim made when principles contradict the desired outcome.
We conclude that, although circumcision is an invasive medical procedure that results in permanent physical alteration of a body part and has attendant medical risks, the decision to have a male child circumcised for medical or religious reasons is one that is commonly and historically made by parents in the United States.
What kind of mental gymnastics must one engage in to marry the pre- and post-comma statements into one argument? Liberty demands that we stop at the comma when there is no medical need. Regardless of need, nothing after the comma is valid.
If, however, the trial court finds that M opposes the circumcision, it must then determine whether M’s opposition to the circumcision will affect father’s ability to properly care for M. And, if necessary, the trial court then can determine whether it is in M’s best interests to retain the existing custody arrangement, whether other conditions should be imposed on father’s continued custody of M, or change custody from father to mother.
The qualification here leads me to believe this victory will be pyrrhic. Sure, the court is acknowledging that someone should’ve asked the boy¹ for his opinion on what happens to his body. But it is not saying that the court must deny the father’s desire to circumcise his son. Even if the boy says he does not want his genitals surgically cut², the standard becomes whether or not forced genital cutting on the boy will impair the father’s ability to continue raising his son. The Court is actively embracing the stupidity that, if he doesn’t want it, he may still be treated like property. The Court considers permanent genital modification on a child no different in legitimacy than his father telling him he has to eat Brussels sprouts rather than chocolate. Our society is insane.
¹ His age is irrelevant. We can’t ask infants, but we should. Since they can’t give an answer, the only course of action is no action. Until he can ask for an “invasive medical procedure that results in permanent physical alteration of a body part and has attendant medical risks,” do nothing while he is healthy.
² Some argue that a hospital circumcision is invalid as a Jewish rite because the surgery must be performed by a mohel.