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Can we sort out the concept of civil liberties in a Jewish state?

CM 13/05/2021

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Civil liberties in a Jewish state

Since the Rabbinical Courts (Marriage and Divorce) Law, 5713-1953 was passed, Israeli law requires that all marriage ceremonies, without exception, must be authorized by a religious court. For Jewish Israelis, the State Rabbinical Court under the auspices of the Religious Affairs Ministry, was given full jurisdiction over marriage as well as over divorce. 
This extended to determining the halachic criteria for Jewish identity, since the ability to marry as a Jew rests on this determination. The rationale behind this legislation was that for the Jewish people, marriage historically has defined and sustained the homogeneity of the Jewish people. Supervision of marriage, divorce, conversion and religious identity by the state Rabbinical Court, it was argued, would maintain this homogeneity. It would also reassure the Orthodox and ultra-Orthodox, especially in the case of divorce, that women were not being permitted to remarry in violation of halacha with the spread of mamzerut (children born from forbidden relationships) as a possible consequence. 
By the same law, Christian and Muslim Israelis can only marry in accordance with their respective religious requirements. While this blocks the possibility of interfaith couples marrying in Israel, it complicates things for citizens who have no religious affiliation or for Israelis who identify as Jewish but are not considered Jewish according to halacha. This category includes hundreds of thousands of Russians who emigrated in the 1990s. In addition, the control of the Rabbinate prevents marriage between individuals who are barred for halachic reasons from marrying one another, for example, a Kohen marrying a divorcée or a child born from an adulterous relationship (the mamzer referred to above). Finally, Jews who affiliate with denominations other than Orthodox are not recognized as married when marrying in a ceremony that reflects their non-Orthodox rituals and practices.
In stark contrast to this Israeli law, marriage in Western democracies is a civil, not a religious matter. The Universal Declaration of Human Rights adopted by the UN General Assembly in 1948, for example, declares that “men and women of full age, without any limitation due to race, nationality or religion, have the full right to marry and to found a family… They are entitled to equal rights as to marriage, during marriage and at its dissolution. The family is the natural and fundamental unit of society and is entitled to protection by society and the State.” 
Legally mandated halachic requirements have created a situation in Israel where many citizens, Jewish and non-Jewish, do not have the right to marry within the state, violating what in secular democracies is enshrined as a basic human right. The cause of this problem lies in assigning all marriages to a religious court system without an option for civil marriage. The end result is that the status quo severely impairs the fundamental rights of individuals in Israeli society today and allows religious institutions to provide services that secular state institutions should provide. 
FOR THEIR part, Israel’s secular courts have been very cognizant of these problems and have provided some alternatives. For one, in accordance with international agreements, marriages authorized by a foreign state outside of Israel are recognized in the Israeli population registry. This was extended to gay marriage as well, when such marriages became legalized in the US and Canada. Complications arise, however, when such marriages disintegrate. Unless contractual agreements were signed at the time of the marriage, that provide a legally binding mechanism for adjudication in case of divorce, no legal system for divorce in such marriages exists. 

In 2010, the Knesset passed the Civil Union Law for Citizens with no Religious Affiliation. This law allows a couple to form a civil union in Israel if they are both registered with the Interior Ministry as not belonging to any religion. This civil union is an agreement between two partners who wish to establish a family unit. This union is legally recognized as marriage without using the language of marriage. In addition, secular courts now recognize common law marriages on an ad-hoc basis, taking into account such factors as joint living quarters and joint bank accounts. This allows couples to be recognized for National Insurance purposes and for the right to enter Israel if one is not a citizen, but is still far from recognizing such people as fully married. 
Despite these important steps, the 70-year monopoly of the rabbinate over marriage and divorce continues to be upheld although there is a rise in the number of Israeli citizens who are choosing to marry in private ceremonies even if they could marry through the Rabbinate, in addition to the tens of thousands of couples who travel abroad to marry before returning to register their marriage through the Interior Ministry. 
In addition to the civil liberties issues, a major question around the marital status of halachically Jewish couples who marry in a civil or non-Orthodox ceremony arises. Do these couples need a Jewish divorce or would a civil divorce suffice to render the woman marriageable according to criteria of Jewish law? Again, the major concern revolves around permitting married women to remarry without a Jewish divorce which will lead to their bringing children into the world who will be branded mamzerim.
Jewish marriage has long been the cornerstone of Jewish identity and continuity over thousands of years. Kiddushin – which has within it the word kadosh, holiness – declares that God’s presence resides within the intimacy and sanctity of the bonds of marriage. On one hand, we want to uphold tradition and ensure the integrity and holiness of the institution of Jewish marriage that has endured for millennia. On the other hand, we must also understand the threat to a modern democratic country where tens of thousands of citizens cannot legally marry. Halacha has long wrestled with defining the status of marital unions that are publicly recognized as marriage but are not based on kiddushin as defined by Orthodoxy. The vast majority of authorities deliberately ruled that such unions are not halachic and do not require Jewish divorce which ultimately alleviates all concerns for mamzerut. 
IT SEEMS there are two options that need to be explored fully by both rabbinic and legal authorities in order to address religious, civil and legal issues that must be resolved in the near future. The first is the civil union option which if fully implemented, would become available to all citizens. This option would avoid using the term “marriage” for anything but halachically sanctioned kiddushin between a man and a woman permitted by Jewish law to marry. Such a union would be fully recognized by the State with all of the attendant rights by law given to a married couple. 
The second is based on the suggestion of Prof. Ruth Gavison and Rabbi Yaakov Medan in which the State registers the couple seeking to marry, and then issues the marriage license. It builds on a model that already exists in other countries like America and England in which the secular state oversees the issuing of marriage licenses while the religious or civil authorities perform the ceremonies. In a suggestion that would be unique to the State of Israel, the State would only issue a marriage license in the case of a second marriage if the woman is halachically permitted to remarry. This would only restrict women who married with Orthodox kiddushin but did not receive an Orthodox get. This option seems to be the one that would maintain greatest fidelity to halachic marriage while respecting the democratic rights of all citizens of Israel. 
The writer teaches Talmud and Halacha at Matan, Pardes and the Bnei Akiva gap year program Torah V’Avoda. She is currently working on a book on gender and halacha. 

Source: Jerusalem Post

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