Peter Buchsbaum

The right to marry — Israeli style

A new bill aims to extend the reach of Israel's Rabbinate, the very body creating the problems the law is supposed to fix
The entrance to the offices of the Chief Rabbinate of Israel, Jerusalem. (Flash90)
The entrance to the offices of the Chief Rabbinate of Israel, Jerusalem. (Flash90)

Israel’s basic documents proclaim freedom and equality under the law for all citizens of the state. The 1948 Declaration of Independence could hardly be clearer in its statement that the new country was to be based on egalitarian principles. Israel’s Basic Laws, which function as a kind of constitution in a country that has none, echo this theme. The 1992 Basic Law Human Dignity and Liberty broadly protects civil liberties in Israel. Yet when it comes to marriage, which the Israeli Supreme Court has recognized as a basic human right, there is no equality. Under a 1953 agreement, which is preserved in the 1992 Basic Law, only the Chief Rabbinate has the power over Jewish marriage and divorce in the Holy Land. As a result, according to the worldwide survey of marriage laws done by the civil rights advocacy organization Hiddush, Israel resembles the most traditional of Islamic countries in terms of religious domination of marriage and divorce.

Now the Rabbinate is seeking extraterritorial authority over Jewish domestic life. A pending bill in the Knesset, the Israel’s legislative body, would give the Rabbinate the power to sanction husbands who refuse to grant a Jewish divorce, that is, a get, even if neither half of the couple lives in Israel, and even if the couple had been united by a civil, rather than a religious, marriage.

The justification for this odd legislation results from the absolute authority of a husband to deny a divorce under halacha. The proposed bill would ostensibly give women who want a divorce additional tools of coercion, in order to force the husband to agree to a divorce. Viewed in isolation from the overall monopoly held by the Rabbinate on personal status matters, the bill might seem to help agunot, that is, chained women, who are unable to obtain a Jewish divorce from their recalcitrant husbands.

But viewed through the lens of the Rabbinate’s increasingly aggressive assertion of control over personal status matters, this bill is dangerous. It would provide the Rabbinate with a new and untested form of worldwide authority over domestic relations. It is improbable that this authority would really benefit women, since, among other things, the rabbinical courts are entirely controlled by male judges who cite centuries-old precedents — going as far back as the famous scholar, the Rambam, Moses Maimonides in the 13th century — in applying divorce law and resolving family disputes. In fact, the Rabbinate has become more demanding and less attuned to the liveliness and diversity that are perhaps the greatest and most attractive features of Israeli life today.

There are three related problems. One derives from the biblical doctrine of mamzerut, which states that the children of women who are not properly divorced must be considered to be mamzerim, that is, bastards, who are themselves not permitted to be married by rabbis in Israel. This doctrine is rigidly enforced.

Second, the Rabbinate has grown more prone to question the Jewish identity of children of mothers who converted to Judaism overseas. People converted by Rabbi Haskell Lookstein, who performed Ivanka Trump’s conversion, have been forced to reconvert in Israel before they were allow to take part in a religious marriage ceremony there. Similarly, rabbis in Israel are demanding proof — such as a copy of a parental or grandparental ketubah, their marriage contract — before they will agree to marry a couple.

Third, there are the agunot, the women barred from remarrying and having Jewishly legitimate children because they cannot obtain a get from their respective husbands. If they do not give in to their husbands’ demands, but remarry anyway, their future children will be mamzerim. The excruciating results of vesting this arbitrary power in husbands has been described in Marriage and Divorce in the Jewish State, by Susan Weiss and Netty C. Gross-Horowitz.

The halachic creativity that led the famous legal authority Rabbenu Gershom to ban polygamy in the 11th century, to ensure the rights of women and promote domestic tranquility, has been replaced by a divisive rigidity that ignores darkei noam — that the ways of the law should be ways of pleasantness, and all its paths be peace Instead, these “chained” women remain at the mercy of their husbands. In one famous case, a man has sat in jail for 17 years and still refuses to grant his wife a divorce. As a result, she can never remarry and bear legitimate children.

Scholars both more traditional and more liberal have wrestled with these issues. In 2013, Professors Avishalom Westreich and Pinchas Shifman proposed a civil legal framework for marriage in Israel, in which marriage would be available through civil process, as in all other modern Western countries. A year later, Senior Lecturer Ayelet Blecher-Prigat proposed that the Jewish state get out of the marriage business entirely, and leave it as a matter of complete private arrangement, with the state regulating the external aspects of marriage such as property. Former Israeli Supreme Court chief justice Aharon Barak has also now gone on record protesting the current state of limitation on the right to marriage.

Hiddush has estimated that as many as 600,000 Jewish Israelis cannot marry because of their inability to prove their Jewishness to the satisfaction of the Rabbinate. A good number of these people came to Israel from Russia and were defined as Jews under the Law of Return, under which they needed only one Jewish grandparent. The law was designed as a response to the Nuremberg Law, defining a Jew as having one Jewish grandparent, that allowed the Nazis to slaughter the Jews of Europe. However, the Rabbinate will not recognize them as Jews because they either did not have or cannot prove that they had a Jewish mother.

This new bill does nothing to ameliorate the plight of the agunot. Instead, it gives more power to the Rabbinate, the very institution whose stiffness is causing these divisions in Israel.

* * *

It may not be necessary to create new institutional arrangements for marriage if there really is a desire to help women. The present bill could be amended in three simple ways, as follows:

Section 1. The doctrine of mamzerut shall cease to exist in the State of Israel. Regardless of parentage, no Jew shall be barred from marrying another Jew by any court, rabbinical or otherwise.

Section 2. Every person who receives citizenship and the rights of an Israeli in the State of Israel under the Law of Return shall also have the right to be married by the Rabbinate or any other duly constituted religious authority.

Section 3. The Court shall act as the agent of the husband and grant a get in any case where the husband refuses to grant a divorce, where the grounds for divorce are otherwise proven. The status of being an agunah shall cease to exist in the State of Israel.

The language of sections 1 and 3 tracks the words of the 13th Amendment to the American Constitution, which ended slavery in the United States. Such language could end the chaining of women, a form of slavery, in the State of Israel.

This writer sat for several years as a judge hearing divorce cases in New Jersey. The current state of family law in Israel is impossible to fathom on any rational basis. Some legal means must be found to end the current stalemate over marriage and divorce so that all women, immigrants and others become fully part of the people of Israel we so much love.

About the Author
Peter Buchsbaum is a graduate of Cornell University and Harvard Law School. He clerked for Joseph Weintraub, Chief Justice of NJ and served as a Judge of the NJ Superior Court from 2004 to 2013 after a career as prominent municipal land use lawyer. Peter has been listed in Who's Who in America for over 25 years. Today, he sits on the WUPJ North American Advisory Board and Co-chairs its Legacy Committee Chairs. He has been an officer of Har Sinai Temple in Pennington, NJ; and he is a co-founder of J-PLAN (the Jewish Pluralism Legal Action Network), which advocates for marriage equality in Israel.
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