Nitzan Caspi Shilony

My plea to Israeli women this Agunah Day

Removing oversight from the rabbinic courts will make it nearly impossible to protect women from legal abuses during Jewish divorce
In rabbinic court. (Tziporah Lifshitz)
In rabbinic court. (Tziporah Lifshitz)

Since 1995, Jewish organizations in Israel and abroad have commemorated the Fast of Esther as Agunah Day. In Jewish law, an agunah is a “chained woman” whose husband cannot or will not release her from a marriage she seeks to leave. If one reads the Megillah in historical context, it appears that after the Jews are miraculously saved, Esther returns to the palace of King Ahasuerus — to what fate? For the rest of her days, she is involuntarily confined to the king’s palace, subject to his desires and whims.

The lived reality of every Jewish woman prevented from leaving an unwanted marriage is similar. Whether her husband refuses to give her a get (religious writ of divorce), is missing, or lacks the cognitive ability to release her, she cannot continue with her life and is forever bound to the person with whom her marriage has effectively ended. On the Fast of Esther, we seek to raise awareness of the plight of these women among us and demand the implementation of existing halakhic solutions to end this injustice.

In this context, against the backdrop the Fast of Esther and Agunah Day, I will state clearly and unequivocally: the judicial revolution that the coalition is currently implementing is disastrous for women in Israel, and will exacerbate the harm faced by the most vulnerable women in society: agunot.

The State of Israel, since its inception, conferred upon the state rabbinic courts exclusive legal authority over marriage and divorce. The judges appointed to these rabbinical courts are largely good, honest, God-fearing people, but they espouse halakhic worldviews and value systems that are not shared with a significant portion of litigants who come before them. Many of these judges do not regard equality between men and women as a value, and do not support halachic models that seek to apply Jewish law to a changing reality.

Back in the 1950s, the state rabbinic court determined, as part of a famous legal ruling, that a residential building registered in a woman’s name actually belongs entirely and exclusively to her husband. As far as I know, there are no longer any religious or ultra-Orthodox sectors today that hold such a view, or believe that women should not be entitled to half the family property. However, without the intervention of the Supreme Court, which established that the principle of equality in Israeli law requires a woman have ownership rights over her own property (the “Sidis decision”), and that the rabbinic court may not contravene this principle, it is likely that, to this day, women would leave marriages with no property at all, by instruction of the state rabbinic courts. Over the years, the rabbinic courts have miraculously managed to find real halakhic justifications for equal property division, but only because the eyes of the Supreme Court were watching.

Not only in matters of family property division did the Supreme Court limit the conduct of the rabbinic courts, but also in matters of morality and general justice. A few years ago, a young woman became an agunah when her husband suffered a debilitating brain injury in a motorcycle accident. In an unprecedented move that has not been repeated since, the state rabbinic court in Tzfat established that the marriage was over (invoking a halakhic concept called get zikui).

Some of the rabbinic judges in the system, including the president of the rabbinical court, disagreed with the halakhic approach taken by the Tzfat rabbinic judges. Traditionally, that kind of disagreement would amount to a legitimate halakhic dispute, and the court’s decision left in place. In this case, however, the disputants sought to undermine the Tzfat rabbinic court’s ruling in a hearing at the official High Rabbinic Court of Israel.

A basic rule of legal proceedings states that an appeal cannot be heard unless one of the original litigants submits it. In the case of the agunah of Tzfat, the woman herself was obviously not going to appeal the ruling that had freed her; the husband’s guardian had no intention of appealing, either. Instead, a private individual was sent by a third party not affiliated with either side, and he appealed the ruling that had freed the agunah from her chains. The High Rabbinic Court saw it fit to hear the appeal, and to cause this woman great anguish, despite such a move contradicting fundamental principles of law. In order to stop this violation of her rights and her freedom, the woman filed an appeal to the Supreme Court through the NGO Mavoi Satum, opposing the High Rabbinical Court’s decision to reopen her case and return her to her chains.

The Supreme Court held a hearing on the conduct of the High Rabbinical Court, which had sought to use the state’s courts in a manner contrary to its fundamental rules of law and procedure (and not to mention, in a manner contrary to the legitimate halakhic means of dispute available to them). Judge Elyakim Rubinstein cancelled the High Rabbinical Court’s decision to hear the case, prevented further hearings about the former agunah’s freedom, and signed the ruling with the words: “It is fitting that we ensure that the dignity and freedom of the petitioner be respected… and may her journey of suffering end.”

Beyond the specific instances of oversight of the Supreme Court over the rabbinical courts to protect women’s freedom and welfare, the Supreme Court also enabled women’s appointment to roles previously closed to them due to the rigidity of the state religious establishment. Until the 1990s, Israel’s Chief Rabbinate did not allow women to act as to’anot rabbaniot —rabbinic pleaders advocating in rabbinic courts — and it is likely that without the Supreme Court’s intervention, that door would still be closed to women today. The same goes for the inclusion of women on the committee that selects rabbinic court judges (a 2012 petition), the appointment of women as legal advisers in the rabbinical courts (a case from 2008), the permitting of women kashrut supervisors (a 2014 petition), and, of course, allowing women to be members of state religious councils (Supreme Court ruling on Leah Shakdiel in the 1987).

The legal revolution that stands on the coalition’s agenda is designed to weaken the judicial authority, and to make judges loyal to the government rather than independent. Parallel to this legislation, the government passed a bill in the ministerial committee to expand the powers of the state rabbinical courts. In addition, legislation is underway to remove another one of the checks on the power of rabbinic judges: the Public Complaints Commissioner on Judges, according to coalition agreements, will no longer have oversight or be able to critique rabbinic court judges.

Thus, we will see a near complete elimination of any possible oversight over an institution with enormous power, resources and — sometimes — apathy. Even the modicum of supervision over the state rabbinic courts will be gone. In such a case, I and my colleagues who are lawyers and rabbinic pleaders will have a very hard time advocating for agunot; our hands will be almost completely tied. There is no doubt that if we lose the independent justice system, the status of women will deteriorate. We will, God forbid, see that the rabbinical courts’ violations of the principles of justice and fairness, and the inability to rein them in, will also likely lead to a proliferation of extortion cases of women for the get, and other various legal abuses.

Therefore, today, I call on all women: your friends, your sisters, your daughters and you, God forbid, may one day need the Supreme Court to protect you from the unchecked power of the state rabbinic courts and the Rabbinate, as well as from the executive branch as a whole. I urge you to learn about the implications of the legal program, read what the experts have written, and understand and develop an independent position.

I am confident that a cohesive stance, which can still be critical of the judiciary and suggest the need for corrections, cannot support the removal of all oversight and all protections against a powerful state establishment. I plead each of you: resist the judicial plan before it is too late. “Do not imagine that you, of all the Jews, will escape with your life by being in the king’s palace” (Esther 4:13).

About the Author
Nitzan Caspi Shiloni, Esq. is the legal department director at the Center for Women's Justice, a legal advocacy organization leading the battle for women’s equality, dignity and justice under Jewish law in Israel. She co-hosts the CWJ Hebrew podcast, מבקרות ברבנות, which explores the thorny issues of religion and state in Israel while shining a light into the darkest corners of the Israeli rabbinic courts.
Related Topics
Related Posts