In a recent case hailed as a victory for the plight of the agunah, the Israeli Supreme Court ordered the Rabbinate to declare whether it’s ok to delay the Israeli burial of a foreign national. The Rabbinate said “yes.”
The case involves a woman from New York whose ex-husband has been refusing to give her a get, a Jewish divorce. The woman has a civil divorce, as well as a halachic annulment from the International Beit Din. But she wants a get from the RCA, the Rabbinic Council of America. Her ex refuses, insisting that she submit all matters relating to their marital property to a rehearing in a different US-based beit din. In order to pressure her ex into agreeing to a get without any strings attached, the woman has appealed to Israeli courts, requesting that Israel refuse to bury her ailing ex-father-in-law. The Rabbinate agreed.
Great Decision. Right? A victory for women?
No. Not really. It may eventually help our NY agunah, assuming all Israeli institutions and actors fall in line with the Rabbinate’s declaration, but such targeted and limited relief comes at the expense of the rest of us. It embroils Israel deeper and deeper into human rights violations; it forces Israel to compromise on the international rules of reciprocity and due process; and it pushes all of us Jewish women further away from achieving a systemic solution to the problem of marital captivity (aginut).
Human rights. Human rights are important. They are not theoretical law school ideas invented for the benefit of the occasional miscreant or terrorist. Human rights protect the interests of all of us. They include the rights to liberty, equality, privacy, a fair trial, freedom of conscience and religion.
Israel is implicated in human rights violations in the first instance by its lack of civil marriage and divorce, the right to which is implicit in the Universal Declaration of Human Rights. Instead, the state coerces religious marriage and divorce laws on all Israeli citizens, whether they are religious or not. Unequal religious divorce laws imposed by panels of male-only judges, enable (bad) husbands to hold their wives in marital captivity—a violation of their wives’ rights to autonomy, liberty, and religious freedom. Israel then complicates these human rights violations by trying to end marital captivity enabled by its own laws by passing still other laws that violate the human rights of the (bad) men who exploit those laws. In other words, Israel recognizes and enables the “right” of Jewish men to hold their wives in marital captivity, and then will punish selected husbands who do just that by taking away their human rights to liberty; to travel; or even, in our case, to the dignity of a proper burial. To name just a few.
One might argue that it is just and fair to violate the human rights of a bad man who exploits problematic laws that operate in his favor. But this ignores the bigger questions: Do two wrongs make a right? Do the ends justify all means? Are we really willing to selectively endorse human rights violations by the state, so long as it serves our interests? If courts are free to ignore the basic principles of human rights, and we give them a pass (or even cheer them on) because the people being harmed are get refusers, how can we protest when those same courts violate the human rights of Israeli women in countless other agunah cases? As head of the Center for Women’s Justice, an NGO that I founded for the express purpose of remedying civil rights violations of women perpetrated by the state in the name of religion, I see how these same justifications are weaponized against women every day. How can we make sure that Jewish women are systemically entitled to a fair trial that imposes the rule of law in a coherent and predictable manner?
Reciprocity and due process. The rules of international reciprocity and due process require one state to respect the laws of another and not to impose its rules and courts on foreign citizens without a fair trial.
In our case, an American woman is accusing her American ex-husband of denying her a religious divorce; and she is accusing her American father-in-law of aiding and abetting his son’s behavior. Before a court can act, it must determine the facts: Are such accusations accurate? Does the woman have a Jewish divorce? Is the man’s father implicated in his son’s refusal? And what court should be deciding those facts? Can an Israeli court rely on an opinion rendered by a foreign rabbinic tribunal, which is not acting as an official arbitration panel? Should an Israeli court be deciding the facts and punishing an American citizen in accordance with Israeli laws? And if so, should the American man and his American father be forced to come to Israel and hire Israeli attorneys to defend their position?
Forcing a foreign national to travel to a foreign country to hear a case that has no nexus to that country infringes on international rules of reciprocity and due process. Imagine a New York court applying Get Laws to an Israeli man who goes to visit his kids while they are studying in NY. Imagine that court restraining the man’s travel, or declaring that his Israeli property should be transferred to his wife. All for the good cause of helping an agunah held in marital captivity. No Israeli rabbinic court would recognize such a decision. They would not only claim that it violates the rules of reciprocity and fairness, but also because it violates the religious rule that disqualifies a get if given under duress.
In our case, not only is Israel exercising jurisdiction over a US citizen on behalf of a US citizen, but it is also doing so when the US citizens – both husband and father – are not even present on Israeli soil! And on the basis of an opinion of a private rabbinic court in which the husband did not appear! True, Israel recently amended its 1953 Rabbinic Court (Marriage and Divorce) Jurisdiction Law to specifically expand the jurisdiction of Israeli rabbinic courts over non-Israeli citizens when it comes to marital captivity. But even that law specifically notes that Israeli rabbinic courts have no jurisdiction when both plaintiff and defendant are not Israeli citizens and when the defendant is not present on Israeli soil. Even according to our own expansive Israeli law, Israel has no personal jurisdiction over the American husband, and no subject matter jurisdiction over his father.
Note too, the fact that the state has given itself authority over foreigners under the new amendment does not mean that the law comports with international standards or is good for Israeli women.
It doesn’t, and it isn’t.
A systemic solution. Moreover, the Rabbinate’s decision in the case of the NY agunah and her father-in-law’s burial does little to advance the “plight” of the agunah. The Rabbinate has made it clear that its ruling is limited to the extreme case at hand.
The Rabbinate has made a big deal about this ruling. It wants to give the public the impression that the Rabbinate and its courts are “supermen” who will, faster than a speeding bullet, leap over halakhic impediments to help all women held in marital captivity. This is not true. They leap only for high-profile, isolated cases in which they can apply easy pressure on foreigners who are forced to spend money to litigate matters far from home, yielding quick results achieved under duress. They won’t apply similar pressure on Israeli citizens for the benefit of the thousands of agunot languishing in their own backyard.
Israeli rabbinic courts would never deny the burial of an Israeli citizen’s father-in-law if his son were refusing to divorce his wife. Let alone support any systemic solution—whether civil marriage and divorce; or modifying halakhic marriage so that it no longer includes kinyan, and the accompanying ability of Jewish husbands to place their wives in marital captivity from the get-go. The Israeli state rabbinate has also vocally opposed the use of all halachic prenups, including those endorsed by the RCA and BDA, which would significantly mitigate the phenomenon of get refusal. They have denounced and discredited initiatives by independent rabbinic authorities, such as the International Beit Din, to issue halachic annulments to agunot—which, in this case, would have resolved the whole matter without the drama of a dying father and his prodigal son.
In sum, the decision of the Rabbinate in the case at hand does little for agunot. Moreover, it harms the democratic fabric of the state by infringing on human rights, by defying the rules of reciprocity and due process, and by skirting the need for a systemic solution. It also raises questions about who should be deciding who gets buried in Israel and under what conditions. But that is another story.
It would appear that the only entity served by the Rabbinate’s decision regarding the NY agunah and her ailing father-in-law is the Rabbinate itself and the press that has applauded them.