The circumcision decision: A ray of hope for converts

Israel’s High Court of Justice overturned on Sunday the highly controversial decision of the Rabbinical Courts to compel a mother to circumcise her son. This landmark decision could be a ray of hope for others groups caught up in the Rabbinical Courts system, especially converts and individuals suspected as being mamzerim (those born from certain forbidden relationships).

As I previously wrote in this blog, the case involved a dispute between two parents who are going through divorce proceedings — the father insists on circumcision for their infant son; the mother refuses. The Rabbinical Court in Netanya ordered the mother to have the baby circumcised or pay a penalty of 500 ILS for every day of defiance. The Supreme Rabbinical Court affirmed this decision, and the mother appealed to the High Court of Justice.

Sunday’s decision by an expanded seven-member panel of the High Court of Justice (the majority opinion written by Deputy Chief Justice Miriam Naor) vacated both Rabbinical Courts’ decisions on the grounds that the Rabbinical Courts did not have the authority to give such an order.

In order to understand the implication of the decision some background is needed. Under Israeli law, the Rabbinical Courts have the exclusive authority to decide matters of marriage and divorce of Jews in Israel. The law also allows the Rabbinical Courts to “tie-in” (kricha) other matters that are relevant and convenient for the conclusion of the divorce if either party asks the Rabbinical Court to do so. This open-ended “tie-in” authority is a major source of contention between the Religious Courts and the civil Family Courts, since any matter of disagreement between the couple can potentially find its way under the Rabbinical Court’s authority at the request of either party, whether or not it has a real connection to the core issues of the divorce. Thus, Rabbinical Courts are often happy to expand the ambit of their power over dispute that are far removed from the core issues of the divorce, for example, financial and business disputes between divorcing parties or issues relating to the upbringing, education, and visitation rights of children long past the conclusion of the divorce.

In Sunday’s decision, the High Court of Justice ruled that a circumcision of a child is not the kind of decision that can be tied-in with divorce proceedings. The Court reasoned that the decision whether or not to circumcise a baby is too important to be decided as part of divorce proceedings, because it involves irreversible change to the body of a minor who is not a party to the proceedings and because it goes to the heart of the child’s religious freedom or freedom from religion and involves complex social issues.  Therefore, the Rabbinical Court did not have the authority to order the mother to circumcise the child as a side-issue within the divorce proceedings. Unless both parents agreed to the Religious Court’s adjudication, the issue should have come before the Family Court, if at all.

Although disputes over circumcision are rare, this decision could potentially have dramatic consequences for a great number of converts and individuals suspected as mamzerim (who are prohibited from Jewish Marriage under halacha). In many cases, Rabbinical Courts reach decisions on the marriage eligibility and Jewishness of third parties — especially children — as part of the divorce proceedings of their parents. Sometimes, the Rabbinical Courts refer specifically to the “tie-in” (kricha) as the source of their authority to issue rulings regarding children of divorcing parents, while at other times the Rabbinical Courts simply ignore the boundaries of their authority altogether and decide that converts and their children are not halachically Jewish without any basis of authority in law.

Sunday’s decision signals that the High Court of Justice will not tolerate the practice by Rabbinical Courts to issue life-altering decisions regarding children as if such decisions are mere side-issues of their parents’ divorce. Following the logic of this decision, in such serious matters as the Jewishness of an entire family or the status as mamzerim, the Rabbinical Courts cannot assume authority without the explicit consent of all the parties involved.

It is now time for intrepid lawyers and litigants to continue the struggle and demand that the High Court of Justice place clear limitations on the authority of Rabbinical Courts and stop them from arbitrarily deciding the fate of children.

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Akiva Miller is the author of the article: “The Policing of Religious Marriage Prohibitions in Israel: Religion, State, and Information Technology” scheduled to appear in the forthcoming Journal of Information Technology and Privacy Law and available for download on SSRN.

The High Court of Justice decision can be read in its entirety (in Hebrew) here.