The combination of the well-publicized story that Israel’s first Olympic gymnastics champion, Artem Dolgopyat, is not halachically Jewish and thus cannot marry his fiancée in Israel and the fact that we have a new government in Israel without any Charedi parties, has led some to call for an implementation of civil marriage in Israel. If someone who is not halachically Jewish wants to marry a Jew, the couple may not get married in Israel because the Rabbinate would not sanction such a marriage, and the couple may not get married civilly because no such institution currently exists in Israel. This new government has already demonstrated its desire to engage in conversion reform and kashrut reform. So why not civil marriage?
One of the ways to analyze the issue of civil marriage in Israel is how we balance Israel as being both a Jewish and democratic state. On the one hand, we want Israel to provide basic democratic rights to all of its citizens. On the other hand, we want Israel to have a distinctly Jewish character. Sometimes these two values contradict and during the early years of the State of Israel, a deal was struck between the secular government and religious leaders to try to find a balance that both sides could tolerate.
With the passage of time, feelings about this balance in Israel have changed. For example, many secular Jews resent the fact that on Shabbat cultural and entertainment venues are closed and many forms of public transportation are unavailable and they contend that this constitutes religious coercion. Many religious Jews are upset that many of the laws forbidding commercial activity on Shabbat are not enforced. In 2003, an agreement called the Gavison-Medan Covenant was drafted. The purpose of this agreement was to update the details of this balance in order to retain the state’s Jewish character, while minimizing religious coercion. It is named after Hebrew University Professor of Law Ruth Gavison, and Rav Yaakov Medan, currently a Rosh Yeshiva at Yeshivat Har Etzion.
This covenant contains many provisions relating to the Law of Return, conversion, Shabbat and marriage which attempt to resolve the current tension between the Jewish and democratic character of the State of Israel. Regarding marriage, the covenant provides that civil marriage would be allowed. However, those who chose a religious ceremony would have to obtain a religious divorce before remarrying. The reason for the specific detail of this proposal is the concern of mamzerut. If a couple gets married according to halacha and then divorces without a Get, and the woman remarries and has a child, then that child is a mamzer and halachically cannot get married to almost any other Jew. As Rav Medan wrote in the Medan-Gavison Covenant, allowing a woman who was married according to halacha to remarry after a civil divorce would be “catastrophic on three levels: personal, religious and national.” The personal price that a child of such a union would pay would be untenable. Religiously, allowing this union is a grave sin. Nationally, if such unions would be permitted, then it would likely create a need for genealogical records to determine who is and who is not a mamzer in Israel and this would likely create a national schism.
It seems that the most pressing need for the current government is to engage in conversion reform and kashrut reform. Whether these reforms are advisable is subject to much debate. If the government decides to tackle the civil marriage issue in Israel, it can either try to figure out a “marriage” solution specifically for the Russian olim, many of whom are not halachically Jews, and limit the solution to those situations. Alternatively, the government can institute civil marriage along the lines found in the Medan-Gavison covenant. The government’s success in implementing reform and kashrut reform may determine whether it will try to tackle civil marriage next.