Circumcision by default?

The Israeli High Court of Justice is once again deliberating a case that goes to the very heart of Israel’s character as a Jewish state. A few months ago, the Supreme Rabbinical Court ordered a mother to allow her son to be circumcised, or face a daily fine of 150 ILS as long as she persists in her refusal. The case came before the Rabbinical Court during the divorce proceedings between the two parents. The father insists that the child be circumcised. The mother refuses, and took her case to the Supreme Court. Now, the High Court of Justice will have to decide whether to overturn the Supreme Rabbinical Court’s decision.

Under law, parents must make all important decisions about their children’s upbringing jointly. If they cannot reach an agreement, a competent court can resolve the dispute, following the best interest of the child. The Rabbinical Court views this issue as a matter of a child’s upbringing and identity, which falls under its jurisdiction because it is a dispute in a matter of divorce properly brought before it. In the Supreme Rabbinical Court’s reply to the High Court of Justice, it argues that it is in the child’s best interest to be circumcised as part receiving a Jewish education and identity, and important in order to avoid the psychological harms  caused by the ostracism of his peers.

But behind the Rabbinical Court’s infuriating and presumptive rhetoric about the infant’s psychological best interest lies a deeper dilemma. In a liberal, secular state, it is clear that the neutral default position is to favor bodily integrity and an upbringing free of any particular religious education unless both parents choose to circumcise their child and raise him within their religion. The Supreme Rabbinical Court is arguing, in essence, that in Israel this is the exact opposite – that the neutral default is a Jewish religious identity, circumcision included, unless both parents jointly choose not to circumcise their child.

The Rabbinical Court has a point. In a past case cited in the Rabbinical Court’s response, a divorcing mother was required to continue her children’s Jewish education and was not allowed to unilaterally educate the child to Christianity against the wishes of the father, under the reasoning that the child’s interest was to continue its Jewish upbringing rather than convert. But this is the first time that the Court is asked to compel a circumcision – an irreversible bodily alteration – using similar reasoning.

The issue, of course, goes well beyond the raising of children in divorce. Recently, the High Court of Justice rejected the petition of Israelis who wished to be recognized simply as “Israeli” in their identification documents, rather than “Jewish”. Looking at Israeli history, the Court reasoned that there was no neutral Israeli identity that is independent of its constituent religious and ethnic parts. In other words, the Court decided that belonging to some other ethnic-religious identity, which is for most citizens is Jewish, is by default part of what it means to be Israeli.

Now the High Court of Justice will have to decide if Israel’s Jewish identity, socially and morally, goes so far as to compel the circumcision of an infant whose parents cannot agree about performing the ritual. It is unquestionable that for most Israelis, identifying as Jewish is part of what it means to be Israeli. The question now is whether liberal democratic values, including bodily integrity and the right of a child to have a later choice in life about it, are also part of a default Israeli identity.

About the Author
Akiva Miller is a Jerusalem-born researcher and lawyer, currently residing in New York.