Elad Caplan
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The little-known story of the law that can put Israeli rabbis behind bars

Marry an adult to a minor and spend 6 months in jail. Jewish consenting adults outside of the Rabbinate? You might get 2 years
Illustrative. A wedding. (Shutterstock)
Illustrative. A wedding. (Shutterstock)

Last week, many people — both in Israel and the US — were shocked to discover that Israel has a law on the books allowing for the imprisonment of rabbis who officiate at weddings outside the auspices of the Office of the Chief Rabbi. The law was brought into living color when the Israeli police followed a court order issued by the Rabbinical Court of Haifa to interrogate Rabbi Dov Haiyun, a Haifa rabbi who, like many Israeli rabbis of every denomination, conducts private wedding ceremonies. This first-ever attempt at the law’s enforcement led to public protest and an order by the Israeli attorney general to end the pre-jail interrogation.

The origins of this provocative law are not widely known. The story begins more than a century ago, during Ottoman rule over Palestine. In pursuit of control and order, the Ottomans enacted a law requiring their subjects to report their marital status, and placed enforcement in the hands of various religious communities. Failure to register came with a strict penalty.

When Israel was established in 1948, Article 99 of the Ottoman Criminal Ordinance remained in place. But for more than 60 years, it was ignored. Jewish couples tied the knot. Rabbis officiated. The Chief Rabbinate registered the Jewish marriages, and the couples, hopefully, lived happily ever after.

But in 2011, changes were afoot in the Knesset. Well-intentioned Knesset members introduced a bill to enable couples to register to marry in the local religious councils of their choice, and to create competition among the councils to improve public service. Ultra-Orthodox Knesset members, fearing the chipping away of their monopoly over marriage registration, blocked the bill’s passage. The Knesset session ended, and the bill was tabled.

But the following session, after an election, the bill was brought back for a vote. Seeing that now there were enough votes to ensure its passage, the ultra-Orthodox political parties dusted off the old Ottoman decree, elaborated on it by making both the couples marrying outside the rabbinate and the officiants enabling them to do so punishable, and amended it to the bill. The Ministry of Religious Services, headed by the Jewish Home Party, agreed to the amendment.

Many Knesset members did not notice. Some, recently elected, had not participated in discussions over the bill in the previous Knesset session. Others believed they were voting in favor of a bill that, rightly, would open the marriage registration process. The Marriage and Divorce Ordinance went onto the books with a clause stating that any couple or marriage officiant that does not register a marriage with the State of Israel may be sentenced to two years’ imprisonment.

The attorney general recognized that this was not how criminal law should be enacted in a Jewish and democratic state. Deputy Legal Advisor Raz Nazri wrote: “This amendment… was accepted with reservation in the final stage of the legislative process… without coordination with the Ministry of Justice. This is not how legislation is adopted in a democratic country, certainly not on a sensitive subject like this.”

Yet there it was. And so it is in Israel today that an officiant of a polygamous marriage or a marriage between an adult and a minor is subject to six months in prison, while a rabbi who conducts a wedding ceremony between a man and woman “according to the laws of Moses and Israel” outside the framework of the Chief Rabbinate can be imprisoned for two years.

For several years, Knesset member Aliza Lavie (Yesh Atid) and ITIM, the organization I work for, have been trying to abolish this absurd prison clause. Lavie has sought coalition support from the Ministerial Committee for Legislation, but has not yet received it. In the meantime — until the ultra-Orthodox parties recognize that coercive measures like police interrogations and prison sentences undermine the Judaism they seek to preserve — rabbis may be hauled off to police stations for standing under chuppahs.

About the Author
Elad Caplan, an attorney, is the Director of the Memomadin Center for Jewish and Democratic Law at Bar-Ilan University
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