Halakha and the State: Irreconcilable Differences

Israelis are reeling after MK Betzalel Smotrich of the Union of Right-Wing Parties voiced his aspirations to turn Israel into a “halakha state”—a country in which Torah law would supersede civil law, authorized and enforced by the state. While conjuring up hypothetical nightmarish visions of what such a state might look like, we seem to have overlooked the fact that we already have our own mini-halakha state right here.

Welcome to Israel 2019, brought to you by the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law 5713-1953. Here, the State operates an entire court system in which women are prohibited from serving as judges and for the most part, even serving as witnesses. If you want to serve as a judge in the Rabbinic Court but are not a Hareidi or Hareidi-Zionist male, you won’t even clear the threshold set by the Committee for the Appointment of Rabbinic Court Judges—a committee that, by the way, includes secular politicians among its ranks.

In these courts, you can witness the State condemning children as mamzerim (halakhically illegitimate offspring who are restricted from marrying).

Here, you can watch the following: women begging the courts for legal permission to marry; women condemned for committing adultery and prevented by the state from marrying their lovers; widows branded as nashim katlaniyot–femmes fatales thought to be cursed with “bad luck” that resulted in their husbands’ deaths; women who are pregnant or who have children under the age of two needing permission from the state to marry a man who is not their child’s biological father.

Here, women wait long years as the court debates whether or not they deserve to get divorced. Then, if and when the court renders such a decision, women can wait even longer—sometimes indefinitely—for their husband to actually grant them a get, a halakhic bill of divorcement. Women with comatose husbands are less fortunate; they must remain married until one of them dies. In this court, if a husband says the right thing, a woman can lose her claim to joint marital property. Even though this contradicts civil law, the Supreme Court won’t overturn it.

Here, I discovered that the Jewish law I knew and loved was distorted into an obscene monstrosity when mixed with a toxic combination of power and politics.

What about bringing halakha up to speed to make it compatible with our modern times, as Smotrich assured us would happen?

I rest assured knowing that it already happens today. Israeli Rabbinic Courts are fountains of halakhic creativity, resulting the following innovations that were completely unheard of until very recently:

A woman must pay in exchange for her get, even when she has halakhic grounds for divorce. This is based on an isolated opinion of the 17th-century sage the Maharashdam, whose ruling was implemented for the first time in 1995 by our Rabbinic Courts;

A Rabbinic Court can cancel a get even years after it was granted, if the woman files for child support in Family Court. As a bonus, the children born after her divorce can be branded as mamzerim. This is a halakhic invention that the Rabbinic Court devised only twenty years ago;

No halakhic prenuptial agreement is deemed halakhically sound. This includes the ones authorized by the late Chief Rabbi Ovadia Yosef zt”l, Rabbi Zalman Nehemia Goldberg and Rabbi Gedalia Dov Schwartz. So proclaimed current Chief Rabbi David Lau last week at a Conference of Israel’s Bar Association;

In a particularly cruel twist, you can cast doubts on the validity of a get granted to a woman who had suffered for years as her husband lay comatose. This innovation was first seen in the Rabbinic Court in 2017, despite the 12th-century decree of Rabbeinu Tam, which ordains that it is forbidden—under penalty of excommunication—to question the legitimacy of a get once it has been given to a woman;

If a husband attempts to stab his wife to death, this is not sufficient grounds to issue an order coercing him to divorce her. This is because he wasn’t warned twice in a Rabbinic Court against murdering her beforehand, nor was the Rabbinic Court convinced that chasing her with a knife indicated any intent to stab her. Thus argued the Rabbinic Court in Ashdod, 2018.

Like Smotrich promised, the State’s Rabbinic Court is creative in its adaptation of halakha.

Enough with this.

It’s time for halakha and the State to break up. They’ve been together long enough to be able to realize that it’s not working out, and can say to each other, “It’s not you, it’s me.”

We will all benefit when they go their separate ways.

About the Author
Nitzan Caspi Shiloni, Esq. is an attorney at the Center for Women's Justice, a legal advocacy organization leading the legal battle for women’s equality, dignity and justice under Jewish law in Israel.
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