Letter from Jerusalem: The Civil Marriage Test
Here’s a multiple-choice exam that may help clarify why some Israelis want to change the country’s prevailing laws of marriage—and why others do not.
The bill before the Knesset that would create the institution of civil unions in Israel has the potential to solve the problems of (circle one or more, do not show your work): a) gay couples seeking to marry, or at least gain legal recognition of their relationship; b) couples forbidden to wed under Jewish law—such as a kohen and a divorcée—and therefore unable to marry in Israel, where one must marry through the state-recognized authorities of one’s religious community; c) secular couples who see no reason to involve a clergyman in tying the knot; d) couples who want a Reform or Conservative rabbi to officiate at their wedding and to have it recognized by the Jewish state; e) immigrants, especially from the former Soviet Union, who officially belong to no religion—and so have no religious authorities who could marry them in Israel; f) women whose husbands refuse to grant them a get, a religious divorce, and who therefore remain married against their wills; g) Modern Orthodox Jews frustrated by the failure of Israel’s state-run rabbinic courts to find solutions to problems such as women trapped in their marriages; h) Orthodox and ultra-Orthodox rabbis who take a strict position on conversion and oppose mass conversion of non-Jewish immigrants; i) all of the above.
If you answered “a” (gay couples) or “i” (all of the above), mark those answers as wrong. You applied American assumptions to Israeli issues. Likewise, if you circled “d” (Reform and Conservative weddings): In reacting to a hot-button American Jewish issue, you did not work out the implications of civil unions. All the other answers could be correct. Or then again, they might not be. It depends on who you ask and how you think about it.The bill before the Knesset that would create the institution of civil unions in Israel has the potential to solve the problems of (circle one or more, do not show your work): a) gay couples seeking to marry, or at least gain legal recognition of their relationship; b) couples forbidden to wed under Jewish law—such as a kohen and a divorcée—and therefore unable to marry in Israel, where one must marry through the state-recognized authorities of one’s religious community; c) secular couples who see no reason to involve a clergyman in tying the knot; d) couples who want a Reform or Conservative rabbi to officiate at their wedding and to have it recognized by the Jewish state; e) immigrants, especially from the former Soviet Union, who officially belong to no religion—and so have no religious authorities who could marry them in Israel; f) women whose husbands refuse to grant them a get, a religious divorce, and who therefore remain married against their wills; g) Modern Orthodox Jews frustrated by the failure of Israel’s state-run rabbinic courts to find solutions to problems such as women trapped in their marriages; h) Orthodox and ultra-Orthodox rabbis who take a strict position on conversion and oppose mass conversion of non-Jewish immigrants; i) all of the above.
The monopoly of the Orthodox state rabbinate over marriage and divorce is an old, slow-burning political issue in Israel. Its roots lie in Ottoman law, which granted autonomy to each religious community. Dedicated secularists evince a kind of comfortable, familiar fury on the subject, usually without much expectation of change.
Historically, critics of the status quo have cited the problem of “unmarriables” as an obvious reason for reforms. Besides kohen-divorcée couples, that category also includes those the rabbinate considers mamzerim—products of adulterous or incestuous relations who, according to the Torah, may not marry other Jews. Knesset Member Ronny Brison of the secularist Shinui Party estimates that 2,000 to 2,500 Israelis are “unmarriables.”
Beyond that, couples who can marry through the rabbinate often complain of the religious bureaucracy, of being required to attend premarriage lessons on religious marital rules given by teachers from a different cultural universe, of ceremonies that don’t fit their tastes or values. Secular wedding invitations often state that the “huppa will be held in the family circle”—meaning that only immediate relatives will attend the embarrassing ceremony, with other guests invited to the party afterward. In recent years, the alternative of Reform or Conservative ceremonies has become better known, but a non-Orthodox wedding has no legal status. Afterward, the couple usually travels to Cyprus for a civil ceremony, since Israel does recognize civil marriages performed abroad.
Defenders of the status quo, on the other hand, insist that a Jewish state must maintain the sanctity of Jewish marriage. Among religious Zionists in particular, the common view is that Israel should be a religious polity, placing Jewish life on a higher level spiritually—and the state rabbinate and religious marriage express that.
Pinhas Shifman, a religiously observant law professor at the Hebrew University and author of the Hebrew study “Who’s Afraid of Civil Marriage?” observes that “preserving the Jewish character of the state” also provides a raison d’être for religious parties. And, he notes, part of the secular public is uncomfortable with Jews marrying non-Jews and quietly finds it convenient that marriage remains a religious matter.
What has finally made the issue more pressing is the mass aliyafrom the former Soviet Union. Israel’s Law of Return grants the right of immigration and citizenship to many people who are not Jewish under halakha—children of Jewish fathers and non-Jewish mothers, for instance. The most recent population figures from the Central Bureau of Statistics lists just over a quarter of a million people in Israel as “lacking a religion.” Ottoman law never imagined such a possibility.
After the 2003 Knesset elections, the secular Shinui demanded a solution as a price for joining Prime Minister Ariel Sharon’s government. A committee representing the coalition members, including the National Religious Party, spent a year working on a politically viable way for couples to join together, and to separate, outside of religious institutions. So that the NRP could support the solution, the committee consulted rabbis and, says Brison, the rabbis insisted the arrangement not be called “marriage.”
“Marriage is reserved for a religious act,” Brison says, explaining their reasoning. What’s more, by some interpretations a religious divorce is needed to end any marriage between Jews—even if there’s no rabbi, huppa or ketuba. Otherwise, the woman remains married and any children she bears to another man becomemamzerim.
The committee’s answer was a bill that would create a civil registrar of brit zugiut—a Hebrew term that literally means “covenant of couplehood” but is better translated as “civil union.” It’s the same logic that drives the idea of civil unions for gays and lesbians in America: The state will recognize the relationship for taxes, pensions, child custody, inheritance and all the other legal purposes while reducing the cultural sting by avoiding the M word. Except that the Israeli committee quickly ruled out civil unions for gays as going much too far, politically speaking.
In fact, the panel couldn’t even get to heterosexuals’ problems. Over the summer, Sharon’s coalition began coming apart over his plan for disengagement from Gaza and the civil-union bill was left in temporary limbo.
Before that happened, though, marriage reform got an unlikely advocate. Former Chief Rabbi Eliahu Bakshi-Doron spoke at a gathering of young religious Zionist rabbis—and came out in support of ending the Orthodox monopoly on marriage. The status quo, he says, causes hatred of religion. It forces a religious sacrament on people who don’t believe in it. And, he said, conversion is no answer for the masses of non-Jewish immigrants. His audience was in shock.
They shouldn’t have been. Bakshi-Doron is a maverick who has upset both religious Zionists and the ultra-Orthodox in the past. This time he was taking a strict view of halakha, refusing to loosen Orthodox rules for conversion. Moreover, forcing religious marriage on nonbelievers, he has asserted, increases the risk of adultery and the creation of mamzerim. In effect, he was arguing that the interests of Judaism take precedence over symbolic statements of Israel’s Jewishness.
Bakshi-Doron’s position doesn’t mean secularists are guilty of mass infidelity, explains Professor Shifman. But, he says, a nonreligious person might start a new relationship after separating from his or her spouse but before the divorce. Under halakha, the child born of a woman in that situation is a mamzer.
Shifman’s own religious criticism of the status quo goes further. Secular Israelis, he says, have found solutions—civil marriage abroad or living together, both of which are ever more common. Israeli courts have increasingly extended the legal status of marriage to common-law couples—including gays and lesbians. In November 2004, for instance, a court ruled that a gay partner is an automatic heir, just like a spouse.
But Orthodox Israelis are truly entrapped. They believe in religious marriage and divorce. The status quo, argues Shifman, protects the rabbinate from pressure to find halakhic solutions to crucial problems, such as women trapped in marriages. State-appointed rabbis don’t see themselves as responsible to the laity.
And as things stand, Shifman says, “all criticism is taken as coming from outside,” from opponents of religion, “and so it can be ignored.” Shifman therefore favors change to an American model, where a couple can choose between a civil ceremony and one performed by the clergy of their choice.
Brison has now, on his own, submitted to the Knesset a version of the civil-union bill. Advocates of change generally say it would be a major step forward, though an incomplete one.
“It’s a serious attempt to deal with the problem of couples who can’t marry,” says attorney Sharon Tal, head of the legal department of the Reform movement’s Israel Religious Action Center. But Tal notes that civil union is not quite legal marriage—for instance, it’s not clear that other countries will recognize it.
Nor does the bill recognize the existence of non-Orthodox denominations. A couple could register a civil union and have a Reform wedding ceremony. The best path, Tal insists, would be full recognition of civil and non-Orthodox marriage. Not civil union, but the M word.
Moreover, the bill would leave the state rabbinate’s monopoly over religious marriage and divorce intact. That, says Shifman, would mean less pressure on the religious courts for change than would come from instituting civil marriage.
In the meantime, Shinui has left Sharon’s coalition. But whatever happens with the civil-union bill, marriage will remain a political issue. Is it a simple battle of secularists against Orthodox? If you answered yes, mark yourself down as wrong.