Agunot are not the only vulnerable ones in the Jewish state

So here we are again. Still using the Fast of Esther to raise public awareness about the plight of the agunah — a Jewish woman held in marital captivity by her husband’s unwillingness or inability to deliver to her a Jewish bill of divorce (a get). Despite all our collective kvetching, advocating, prenups, and lawsuits over the past decades, the plight of the agunah is still real and still threatens the liberty of Jewish women all over the world.

As a cause-lawyer activist who founded no fewer than two (!) NGOs to try and address this problem, and who has been in the trenches for years longer than I care to admit, it is my opinion that it’s worse here in Israel for the agunah than it is abroad. In the Diaspora, bad men, weak rabbis, and misogynist religious laws are to blame. In Israel, the additional involvement of the state exacerbates just about everything.

Surprised? I will explain how, contrary to popular belief, the agunah problem in Israel is made worse by the state. In Israel, the state constructs the problem of the agunah where none might be; it stymies creative religious solutions to the problem; it draws on the plight of the agunah to buttress rabbinic judicial power; it supports a distanced “rationalized” attitude towards the problem by state actors with an interest in sustaining the problem, rather than eliminating it; and it hurts all of us Israeli citizens by supporting a legal system rooted on the violation of basic rights. I’ll explain.

Numbers. In Israel, more Jewish women are threatened by marital captivity than those in the Diaspora. In Israel, the state requires all Jewish women marrying Jewish men, whether they are religious or not, to marry and divorce in accordance with Orthodox religious rules. This puts all those Jewish women in Israel at risk for marital captivity. In the Diaspora, only religious Jewish women who marry voluntarily in accordance with religious rules are under threat. And those religious women can, theoretically at least, flaunt religious rules at the time of divorce and suffice with a secular, civil divorce to release themselves from the civil bonds of holy matrimony. In Israel, there is no secular divorce. Israeli women cannot get legally divorced as long as their husbands refuse a get. They are doubly chained.

Religious Freedom. In Israel, the state imposes its interpretation of religious law on its citizens, greatly limiting the ways a woman can release herself from marital captivity. In the Diaspora, a woman can decide what version of religious and cultural norms are applicable to her. She can, for example, petition a Conservative beit din to annul her religious marriage. Or she can ask the International Beit Din to declare her religious marriage void. Once in possession of the clerical dispensation of her religious marriage that is consonant with her religious beliefs, the Jewish woman living in the Diaspora can get on with her life with a free conscience that she is not violating any religious norm. In Israel, the state has a monopoly on Jewish law and dismisses non-state rabbinic court decisions as irrelevant. Moreover, the state will join the woman’s husband in holding her in captivity until she undergoes an “official, authentic, and true” religious divorce ceremony overseen by the state. If the state were not involved, more private rabbinic courts in Israel would find creative solutions for marital captivity, allowing Jewish women to get on with their lives with a free conscience and a civil divorce.

Pawns. In fact, in Israel, the state itself can hold a woman in marital captivity even if her husband is alive and willing to release her! In a recent case handled by the Center for Women’s Justice (CWJ), rabbinic courts refused to oversee the resolution of an amicable divorce until a woman agreed to undergo an investigation into her Jewishness. She appealed to the Israeli Supreme Court, stating that the rabbinic courts had already ok’d her Jewish roots when she married. But even after CWJ won her case and the rabbinic court backed down from their requirement to investigate her Jewishness as a condition to allowing the divorce, the couple is still married. Before they oversee the get ceremony, the rabbinic courts want the Supreme Court to issue a decision establishing that they have jurisdiction over all cases where the Jewishness of an Israeli citizen may be at question. The Court does not want to make such a broad decision. The case is at a standstill, with the couple serving as a pawns in this power struggle. They signed a divorce agreement in November 2020.

An Iron Cage of Marital Captivity. In Israel, the institutionalization of the plight of the agunah by the state has placed the issue of marital captivity in the hands of state religious bureaucrats. This, I argue, has made it more difficult to resolve an individual issue of marital freedom than had it remained in the hands of local religious community leaders. Bureaucrats are more removed than community leaders from the pain of the agunah, making them less empathetic to her plight than her local rabbi or shul president might be. Bureaucrats are also more likely to apply religious rules in formalistic, “technical” manner than a community leader would. And moreover, the bureaucrat’s continued salary and meaning is dependent on the survival of the institution of marital captivity, making him less likely to push for a just and final resolution that would put him out of work than would the leaders of a more liberal, less institutionalized and monetized community. Hundreds of jobs and millions of tax-payer shekels depend on the continuation of agunot remaining agunot.

Violation of Basic Rights. In Israel, the state compromised the liberty and basic rights of women when it agreed to share state power with religious clerics who do not believe in the values of women’s liberty and equality, and who apply rules that favor men and hurt women— hence the plight of the agunah. When egregious harm to women makes it impossible for state actors to ignore those harms, those actors will then try to “fix it” by now infringing — with vigor and justification and no legal restraints — on the basic rights of men who refuse to release their wives from marital captivity. It will put recalcitrant men in jail without due process, under undefined conditions, and for longer periods than criminals who murdered their wives. It will take away the rights of men to pray, to buy food in the canteen, to talk with their family members, and even sleep on a mattress. It will restrain the rights of travel of men who are not Israeli citizens who happen to visit on Israeli soil. And it will even prevent their mother from being buried in Israel, because it can, and basic rights do not apply.

Sadly, we are now witness to what happens when basic rights are weak, not grounded in a written constitution, and hailed as secondary to a Higher Authority. All of us, without exception, are threatened in the name of the Jewish state.

We need a constitution, fast.

We need to privatize rabbinic courts.

We need civil marriage and divorce.

Would disentangling religion and state, some worry, leave women with even less recourse? To the contrary. Agunot will, and already do, find relief through civil arm of the state by filing damage suits in (secular) family courts against recalcitrant men — a strategy pioneered by CWJ nearly 20 years ago, and which is championed by Israeli family attorneys to this day. But it won’t hold all the rest of us captive to a state that trammels on basic rights in the name of “solidarity” and religious customs that don’t treat all persons with dignity and equality; and which define solidarity on narrow terms that benefit a limited and defined group that doesn’t recognize the Tzelem Elohim — the Image of God — in all of us.