The Theocracy in Democracy Project: An Uneasy Union
When it comes to marriage & divorce, Israel is a theocracy under the control of its Orthodox Rabbinate. What can be done?
By Eetta Prince-Gibson
To all appearances, the Lavies are a normal, middle-class, non-religious family, struggling with the high cost of Israeli living and the day-to-day demands of raising four young children. The kitchen counters of their modest third-floor apartment in Giv’on HaHadasha near Jerusalem are covered with the clutter of a weeknight, the supper dishes draining next to the sink. The refrigerator doors are plastered with magnets holding down bills to be paid, school schedules and reminders of appointments and events. Two daughters, ages seven and nine, are playing in the living room while the younger children, both boys, are already asleep.
But although they have been together for more than a decade and very much want to marry, Shlomit, 42, and Alon, 40, have been unable to do so. Shlomit is a widow, and in the eyes of Israel’s Orthodox rabbinate—which has sole authority over all matters of marriage and divorce in the country—she has not been free to remarry.
This is a consequence of a law in Deuteronomy that applies to all marriages between Jews. It stipulates that the late husband’s unmarried brother must marry the widow in order to produce a child who will carry on the name of the deceased. If the brother doesn’t want to marry his sister-in-law, he must stand before the elders of the community—which in modern Israel means the rabbinate—and announce: “I will not marry her.” The woman then performs a ceremony called halitzah by taking off her brother-in-law’s shoe, spitting in front of his face, and loudly declaring, “So shall be done to a man who refuses to build up his brother’s house.”
Shlomit, like most secular Jews, had never heard of this law. Since there aren’t many widows of childbearing age who have no children and an unmarried brother-in-law, it is seldom relevant, and when it is, it’s usually a technicality. But for Shlomit it was not that simple: Her brother-in-law, who lives in Canada, refused to take part in the ceremony. When summoned by the rabbinical court, he rarely appeared, and when he did, he demanded large sums of money in exchange for “permitting” Shlomit to perform the ceremony.
In essence this has meant that her late husband’s family has had the power to prevent Shlomit from remarrying. “The law of halitzah may have had some meaning in ancient times, but now it was just being used as a tool against me,” says Shlomit, a soft spoken, petite woman with olive skin and thick black hair that is tied back. “And the rabbis were allowing it to happen.” The rabbis, she says, advised her to give her brother-in-law the money so that she could be free. “I don’t have that kind of money,” she says. “But the rabbis told me that my husband’s soul will never find rest and that it’s my fault.”
Some time after her husband’s death, Shlomit met and fell in love with Alon. “Neither of us was so young anymore,” she says. “We wanted to get married, but we realized that if we would wait for the rabbinical courts, we’d be too old to have children of our own.” Without recourse, she formally took Alon’s surname, and the two lived as a couple and became a family when the children were born.
Halitzah applies to any Jewish woman anywhere in the world, but as long as civil marriage is an option, a widow can choose to ignore the religious injunctions and remarry. In Israel, a rare democracy that legally sanctions a religious monopoly over marriage and divorce, this is impossible. When a Jewish couple walks into a government office to obtain a marriage license, it is supervised by rabbis and run according to Orthodox interpretation of traditional Jewish law, known as halacha. According to Hiddush, an Israeli non-governmental organization (NGO) working toward religious pluralism, Israel—regarded as the Middle East’s only democracy—is among 45 nations with “severe restrictions” on marriage; most of the others are governed by Islamic law. This places the Jewish state in the dubious company of nations such as Afghanistan, Iran, Pakistan, Saudi Arabia and Sudan.
The chief rabbinate, which falls under the jurisdiction of Israel’s Ministry of Religious Services, maintains and supervises a massive religious government bureaucracy made up of a network of rabbinic courts consisting of regional, municipal, community and neighborhood rabbis. In addition to marriage and divorce, the rabbinate is responsible for all “personal status” issues, such as conversion, which is closely related to marriage; burial; kashrut certification; supervision of ritual baths and other religious services.
Over the decades, the Knesset, civil courts and Israel’s Supreme Court have created options for couples who are willing to forego official Jewish marriage. Chief among these is a 1963 law stipulating that marriages performed outside of Israel must be recognized by the state. Many Israelis with the necessary resources take advantage of this. In 2010, nearly 36,000 couples were married in Jewish courts, and another 9,262 couples had weddings abroad, according to Israel’s most recent census. And in recent decades, the courts have strengthened the rights of common-law couples so that they can maintain joint bank accounts, both be recognized as parents of their children, and be eligible for all social security and social welfare benefits and inheritance privileges to which a married couple would be entitled. Nevertheless, the vast majority of people in Israel—such as the Lavies—want their unions to be recognized by the state as marriages.
“Israeli society is much more traditional than would appear,” says Aviad HaCohen, dean of the Shaarei Mishpat Academic College and a senior lecturer in constitutional law and Jewish law at the college and in the Hebrew University’s Faculty of Law. “Except for a small minority, most Israelis want to marry ‘like their parents did.’ Others, even if less traditional, don’t want to upset their grandparents and parents.”
Israel’s religious laws date back to the medieval rise of the Ottomans, whose millet system granted limited authority to each recognized non-Muslim minority to conduct their own religious and communal affairs. After World War I, the British kept the system in place and appointed Orthodox rabbis to act as the supreme halachic and spiritual authority for the Jewish people in Palestine. In 1947, before the British pulled out and Jewish State was established, future Prime Minister David Ben-Gurion made what is known as the “Status Quo Agreement.” Under this agreement, he made concessions to the religious parties, including recognition of the authority of the chief rabbi and rabbinical courts.
In 1953, the Knesset passed legislation that reinforced this faith-based system by clearly placing all matters of marriage and divorce for Jews in Israel under the jurisdiction of these rabbinic courts. Religious leaders became civil servants—even if they perceived themselves as answering to a higher authority. And to this day, religious court verdicts, like civil ones, are implemented and enforced by the police, bailiff’s office, and other law-enforcement agencies.
Why did Ben-Gurion, an avowedly secular Zionist, push so strongly for the Status Quo Agreement and the subsequent 1953 legislation? And why was there so little opposition to these decisions?
There are many reasons. One that historians such as Anita Shapira, author of the 2012 book Israel: A History, have pointed to is Ben-Gurion’s assumption that ultra-Orthodox Jewry was on its last legs and would eventually disappear or become a small, insignificant sect. A second reason was timing, says Guy Ben-Porat, a professor of public policy at Ben-Gurion University of the Negev and author of the recent book, Between State and Synagogue, the Secularization of Contemporary Israel. “These were the years just after the Holocaust and the loss of fully one-third of the Jewish people,” he says. “Most of even the most secular Jews felt a pull toward tradition, toward the sense that the Jewish people had to maintain itself and hold on to what had been lost.”
But mostly the decision came down to politics—counting who was for and who was against establishment of the Jewish State. Although small in size, the religious parties held the balance of political power at the time, and Ben-Gurion wanted the state to have the legitimacy of Orthodox backing. “Ben-Gurion needed their support in order to guarantee the establishment of the State, and he knew that the religious parties were never going to give up on the crucial issue of marriage and divorce, which throughout the millennia [in exile] had been the sole province of the rabbis,” says Ben-Porat.
Pnina Lahav, professor of law at Boston University and an expert on women’s rights in the early period of the state of Israel, suspects there was another reason. “On the one hand the early Zionists rejected religion and on the on the other hand they had traditional views about marriage,” she says. “It was something akin to the current concept of ‘family values’ in the United States.”
Ben-Gurion—who married his wife, Paula, in a civil ceremony in New York City that was squeezed into his schedule between fundraising meetings for the nascent Jewish State—must have been aware that handing over marriage and divorce to the rabbinic courts would place women under the control of a male-dominated institution, in which only men could serve as judges. In his 2007 book, A History of Israel from the Rise of Zionism to Our Time, historian and author Howard M. Sachar quotes Ben-Gurion on his thinking about this issue: “Any government leader must prescribe for himself priorities, must decide on first things first… [so] I agreed not to change the status quo on religious authority for matters of personal status. I know it was hard on some individuals. But I felt, again in the national interest, that it was wise to… pay the comparatively small price of religious status quo.”
But the price Jews—especially women—in Israel are paying is not small, says Ruth Halperin-Kaddari, head of the Rackman Center for the Advancement of the Status of Women at Bar-Ilan University’s Law Faculty and a member of the United Nations Committee on the Elimination of Discrimination against Women (CEDAW). “The question here is who speaks for the community, who gets to determine its norms,” she says. “Too frequently, religion gives a voice only to men, who declare, in the name of God, that they the men are in charge of the family and that they make the decisions for the women.”
Israel, regarded as the Middle East’s only democracy, is among 45 nations with “severe restrictions” on marriage; most of the others are governed by Islamic law.
Women are most vulnerable when it comes to divorce, which in Jewish law centers around the get—a bill of divorce. With the exception of a few specific instances, a get is valid only if the husband offers it willingly to his wife, and his wife accepts it willingly. But when divorces are not amicable, as they often are not, the get becomes the perfect tool for financial and emotional blackmail.
That’s because if a husband refuses, or is unable, to offer his wife a get, whether out of spite, because he is in a coma, or mentally ill, or lost in battle, or for any other reason, she is considered an agunah, literally a chained woman. In these cases, the woman is not permitted to remarry. While men, too, can be in a position of being unable to remarry—a wife must accept the get for the divorce to be valid—there are numerous accepted workarounds for men, including a heter meah rabbanim, a dispensation from 100 rabbis. There are none for women.
These rules apply to all Jewish women, but are particularly onerous in Israel, where there is no civil divorce. How many Israeli women are currently being refused a divorce or being held captive as agunot? Estimates vary widely: The rabbinate speaks of a few hundred, while women’s groups such as the International Coalition for Agunah Rights say as many as 100,000. Academics at Jerusalem’s Center for Women in Jewish Law estimate 20,000. Get abuse is pervasive, says Halperin-Kaddari. “It’s present in every third divorce; it intimidates every fourth divorcing woman; and almost a third of the divorces end in settlements that deviate from the law to the disadvantage of women,” she says. Get abuse, she continues, is more prevalent in the religious and ultra-Orthodox communities, where she says half of all divorcing women are threatened with the refusal to be granted a get, and almost half eventually give in to get extortion.
The religious laws of divorce apply equally to non-religious women. According to Israel’s Bureau of Statistics, only 8.2 percent of Israelis identify as ultra-Orthodox and 11.7 percent as religious. The remainder consider themselves to be “traditional” (38.5 percent) or secular. Many of these women are not even aware that Jewish law pertains to them until their marriage has fallen apart.
One of these non-religious women is Galit, 38, who asked me not to use her last name for fear that publicity might hurt her case, and who I met in her apartment in a poor neighborhood in Jerusalem. Her husband has refused to grant her a get for six years. “We keep going back to the rabbinic court,” she says. “Sometimes he shows up and says that he’s sorry about the way he treated me and that he wants to make things better. Mostly, he doesn’t even show up. The rabbis believe him and won’t force him to give me a get. They don’t ask me what I want. They just sit there, mumble into their beards, and say they can’t do anything abut it.”
The rabbis, she says, are only interested in the religious technicality of making sure he wants to give her a divorce. “I want my rights as a woman, as a human being,” she says. “I want to be free to continue my life. I want to find love, happiness, I want to have children. But these rabbis—they don’t care about a woman or her life.”
The situation is even more difficult for women whose husbands have disappeared or gone into hiding. I traveled to a small farming village outside of Tel Aviv where I met Bruria, who also asked not to have her last name published. She is 32, and like Galit, has been in marital limbo for six years. The blue kerchief covering her head, which matches her simply cut blue blouse, is a sign that she is a religiously observant woman who observes the modesty requirement that a married woman should cover her hair.
“We were married for two years and then, one day, my husband simply disappeared,” she says. “I didn’t know what happened. I thought he had died, I thought he had been kidnapped by terrorists. After two days, I called the police—and that’s how I found out that he was involved in all sorts of criminal activities, that we were in terrible debt and that he had run away because the police were going to arrest him for fraud and theft. But now I’m the one in jail. No one knows where he is—so I’m an agunah. The rabbis say that that they don’t know if he would agree to a divorce or not if he were here, so they won’t give me a get in his absence.”
The rabbinical court referred Bruria to an “agunah department” in the chief rabbinate’s office, which is employing private detectives (at the public’s expense) to look for her husband, who is apparently living in Europe. “But what can the detective do if he finds him?” she wonders aloud. “Maybe he will beat him up until he agrees.” In practical terms, there is little a detective can do.
Israel’s civil legal system has weighed in: In 1995, the Knesset passed a law aimed at “persuading”—but not forcing—a husband to grant a get by imposing sanctions that include suspension of their credit cards, bank accounts, passports, and driver’s and professional licenses and injunctions against leaving the country. The impact of the sanctions law, however, has been limited: In 2008, only 20 arrest warrants were issued and private investigators were hired 36 times to find men who had disappeared in Israel or abroad, according to the rabbinate’s website.
Few Jewish Israeli women, even the most secular, are willing to completely dismiss the need for a get. According to Jewish law, if a woman conceives a child with another man while still married to her first husband—even if she and her husband have not lived together for years—her relationship will be considered adulterous and her children will be considered mamzerim (mamzer in the singular). The law forbids mamzerim—those born from an adulterous or incestuous union—and their offspring from participating in the Jewish community and from marrying other Jews for 10 generations. “Who can predict that, across the generations, none of your descendants will ever choose to be religious, marry a religious man or women, or marry in Israel?” explains Rachel Levmore, a rabbinical court advocate and head of the Agunah and Get-Refusal Prevention Project of the International Young Israel Movement in Israel and the Jewish Agency.
The relationship between civil and religious law is more complex when it comes to child custody and property distribution. In the landmark 1992 case of Bavli vs. Bavli, the Supreme Court ruled that civil courts take precedence over religious courts in these areas, but religious courts have not accepted this decision. They have continued to apply halachic norms, rather than civic norms, such as gender equality and Western understandings of the best interests of the child. In practice, this means that either rabbinic courts or civil family courts can adjudicate these issues—it’s simply a matter of which spouse registers first with which court. Men and religious women tend to prefer the religious courts, which usually refrain from objecting to men’s demands in order to guarantee that the divorce will be given willingly. Less religious and secular women tend to prefer the civil courts, which follow civil laws.
Israeli society is much more traditional than would appear. Even if tomorrow we were to have civil marriage, 90 percent of Israelis would still have a religious marriage.
Under Israel’s 1950 Law of Return, administered by the Ministry of Interior, anyone with at least one Jewish grandparent, and his or her spouse, has the right to immigrate to Israel and gain automatic citizenship. The rabbinate, on the other hand, has very different criteria for who is a Jew and will only agree to marry a person if he or she is Jewish as defined by Orthodox law: In other words, only people who are born to a Jewish mother or have been converted. But over the last two decades, the rabbinate has insisted upon increasingly stringent requirements for proving Jewish descent.
This has had a major impact on marriage in Israel, particularly on recent immigrants such as the approximately one million people who came from the Former Soviet Union (FSU). David Borozovski, now 40, arrived with his family from the FSU in the large wave of immigration in the late 1990s. His father was a physician, his mother an engineer. After difficult beginnings, the family did well socially and financially. David integrated into Israeli society, served in a combat unit, completed a degree at Tel Aviv University and now works as a high-tech engineer; his future wife, also from the FSU, is studying medicine. Both of his parents are now deceased.
Like all prospective Jewish couples, David and his fiancée went to the rabbinic court, in their town of Ashkelon, to register to marry. “The rabbi began to ask me all sorts of questions,” he relates. “He made me feel that I’m not a good enough Jew. He asked about my grandmother and grandfather—if they kept kosher. If they observed the Sabbath. Seriously? Does he realize that this was in Soviet Russia?”
There are approximately 400,000 “Jewish non-Jews” like David in Israel. They are Jewish enough to be conscripted into the Israeli army and pay taxes, but they are not Jewish enough to marry. “We always knew we were Jewish. And we were Jewish enough to be beaten up and called Zhids in Russia. But the rabbis say maybe I’m not Jewish because maybe my mother wasn’t Jewish. They are demanding to see her ketubah [wedding certificate] and other documents. What documents could I possibly have that would convince them? They even made me pull down my pants—yes! I had to stand in front of three old men who wanted to know if I’d been circumcised—can you imagine how humiliating that is?”
David has applied for help from the partially government-funded group Shorashim (Hebrew for “roots”), which takes on more than 1,000 cases a year. It sends specially trained researchers to the FSU to wade through old Soviet and even Czarist records to find documents attesting to Jewish lineage.
According to Guy Ben-Porat, it was the massive influx of people from the FSU that pushed the rabbinate to become more restrictive. “Marrying so many secular couples, they already knew that the couples are not going to establish what the rabbis consider a true Jewish home,” he says. “They know fully well that few of the women that they marry come to the huppah [bridal canopy] as virginal maids. But accepting the immigrants from the FSU as Jews, when they know that intermarriage and divorce were widespread, was just too much.”
Aware of the problem, the Knesset passed the Civil Union Law in 2010 in yet another limited attempt to temper religious law with civil law. It allows for civil marriage if both the man and the woman are officially registered as not belonging to any religion. However, out of the 400,000 “non-Jewish Jews,” only 30,000 are officially registered as without a religion, and they are the only ones who can take advantage of this law. Since it passed, the provision has applied to only 94 couples. Ben-Porat calls the law “insignificant” and points out that it cannot be expanded to allow civil marriage for all.
The Jewishness of Ethiopian Jews, most of whom arrived in Israel in two waves, between 1990 and 1999, and between 2000 and 2004, has also been subject to question. Even though Chief Sephardi Rabbi Ovadia Yosef ruled in the 1970s that all Ethiopian Jews were halachically Jewish and thus not in need of conversion, not all rabbis accept his decision. This troubles Gadi (he asked me not to use his last name), who spoke with me at a trendy coffee shop in Tel Aviv. “After all my family and I suffered to get to Israel? A rabbi, appointed by the state, tells me that he won’t register us for marriage, because he doesn’t think we’re Jewish,” he says, his voice taut with hurt and anger.
Short and tightly built, Gadi, 32, came to Israel from Ethiopia, crossing the Sudan with his family on a perilous, two-year journey. The family settled in Petach Tikva in central Israel. Like most Ethiopians, Gadi attended religious boarding school and completed compulsory military service. A teacher for underprivileged children in Petach Tikva, he wears a knitted kippah and maintains a religious lifestyle.
Unfortunately for Gadi, Rabbi Benjamin Attias—head of the rabbinic court in Petach Tikva and a member of the Mizrahi ultra-Orthodox Shas party—has repeatedly refused to grant permission for Ethiopian Jews to marry. And despite the earlier ruling, and numerous pronouncements that rabbis such as Attias cannot make their own decisions in this matter, the chief rabbinate has been unwilling to intervene.
In response to situations like this, the Knesset passed legislation last year permitting all Israelis to “shop around” and apply to a rabbinical court outside their places of residence. And most Ethiopians know very well that some courts—like the ones in Tel Aviv—are more lenient than others. Gadi knows this too, but insists on registering in Petach Tikva. “I am a religious Jew. My future wife is a Jew. This is our religious community,” he says firmly. “I will not shop around to find someone who will agree to that. It’s the truth.”
The rabbinate argues it is only doing its job as the gatekeeper of the Jewish people. “Jewish law must be the highest law of the land,” says Rabbi Eliyahu Ben-Dahan, the current Deputy Minister of Religious Affairs who was previously the Director-General of the Rabbinical Courts, and is a Member of Knesset (MK) from the Yesh Atid [There is a Future] party. “Jews have come to Israel from all over the world, and we are united only because we have a single Jewish legal authority.”
The rabbis believe that if they do not verify the Jewish status of a prospective bride and groom, it will tear the Jewish people apart, explains Rabbi Nissim Zeev, MK from Shas. “If my son wants to marry a young woman, he must know what her status is. Perhaps her parents were never divorced and she is a mamzer? Perhaps she is not even Jewish, and then their children will not be Jewish? We must verify this so that our people will not split into groups that will not marry each other.”
Without firm requirements, the rabbinate warns, it will be forced to create a blacklist of “unacceptable” Jews. But in fact, according to press reports and agunah advocacy groups, such lists already exist—some of them privately drawn up by community rabbis, especially within the ultra-Orthodox community, and some of them by the rabbinate itself. The lists are highly secret and have come under severe criticism from the state comptroller, who has accused the rabbinate of “exceeding its authority.”
At least half and perhaps even two-thirds of all children growing up in the American Jewish community today would not be allowed to legally marry in Israel.
Tehila Cohen is an attorney with Yad L’Isha: The Monica Dennis Goldberg Legal Aid Center and Hotline, an organization founded by Rabbi Shlomo Riskin’s Ohr Torah Stone Institution, and one of a dozen or more religious women’s groups now working within the rabbinical courts.
I met her at the Jerusalem court, where she was dashing energetically between offices and among the bearded rabbinical authorities, ensuring that the last details of a woman client’s get were being completed. Cohen, who covers her hair in the style of religious Zionists, is a religious advocate meaning that she has the rabbinate’s permission to address the court on behalf of women. That a woman can serve in this position at all is due to a 1993 Supreme Court decision.
Cohen’s job is to use her extensive legal and religious knowledge to find solutions to impossible cases. She tells me about Hawida Tzabari, who grew up in Yemen, and at age 12, was forced to marry a 20-year-old man whom she had never met. To escape her husband’s violent behavior, she eventually fled Sana’a for New York, then Israel. Still, she was legally tied to her husband, who told her he would never give her a divorce or allow her to see her two daughters.
Cohen managed to convince the Tel Aviv Rabbinical Court, in a rare move, to rule that for a variety of reasons, the marriage vows could be annulled and therefore, according to the laws of Judaism, Tzabari had never been married and did not require a divorce. In this case, notes Cohen, the rabbis “did their best to find a solution for Tzabari that would be just, fair, and religiously valid.”
“If the rabbis have the will, they can always find a way to solve problems within the framework of halacha,” she explains. Indeed, religious women’s advocates like Cohen say rabbinic will is the heart of the issue. After the Yom Kippur War, for example, Rabbi Shlomo Goren, who was then head of the Israel Defense Forces’ (IDF) Military Rabbinate (as well as chief rabbi of Israel, chief judge of the Supreme Rabbinical Court of Appeals, chief rabbi and rabbinical court presiding judge of Tel Aviv), saved untold numbers of women from becoming agunot war widows. Countless times, he and his staff crossed enemy lines in order to locate and collect the remains of fallen IDF soldiers, identify them and bring them to burial.
As Cohen sees it, fewer and fewer rabbis seem to have that will anymore. “Some of the rabbis are very conservative,” observes Cohen. “As a religious woman, I believe that halacha provides solutions to all problems. But finding religiously legal solutions requires creativity, compassion, spiritual courage and will.”
According to press reports, rabbinic will is sometimes for sale. “The going rate,” Alon Lavie tells me, “is about $5,000 per judge to get the panel to rule in your favor.” Others I spoke with also mentioned that they had been presented with opportunities to bribe. “As a religious Jew, I am appalled by this,” says Yair Sheleg, a research fellow at the Israel Democracy Institute, a liberal think-tank. “It is a desecration of God’s name. But it is inevitable whenever a system has absolute power.”
Not everyone wants a system that relies on something as intangible as rabbinic will, and there are a number of proposals for reform that may gradually be gaining acceptance from the religious establishment. Rachel Levmore, for example, has proposed an optional prenuptial agreement, known as the “Agreement for Mutual Respect.” The agreement, Levmore explains, protects both the woman and the man from future get refusal via two mechanisms: One is a monetary incentive to arrange a get within six to nine months, the other encourages couples to attend therapy sessions. Both these mechanisms are designed to help warring spouses to communicate and reach an agreement in a dignified manner. Tehila Cohen says there is a problem with this approach: many starry-eyed young couples often resist signing pre-nups.
Those couples who want to avoid the rabbinate altogether can take advantage of the law allowing marriages abroad to be registered with the state. Most go to Cyprus, which is nearby and has an entire tourist industry devoted to accommodating Israeli couples and their families. The numbers of Israelis choosing this option is growing. According to the Central Bureau of Statistics, in 2012 16.9 percent of marriages involving at least one Jew took place outside of Israel, a 5.4 percent increase over 2011. Another popular trend is cohabitation. But these common-law marriages are not the same as official ones: They create more bureaucratic hassles, says Ben-Porat. For example, unmarried couples need to show proof of their cohabitation status in order to obtain a mortgage.
But perhaps the most telling trend is that young observant Orthodox Jews are more frequently bypassing the rabbinate. Tanya Zion-Waldoks is a young, self-defined modern Orthodox woman, well educated in Jewish law, active in religious feminist circles and working on her Ph.D. dissertation in religious and gender studies at Bar-Ilan University. “For nearly a year, my husband, Ehud, and I studied the Jewish wedding ceremony and we knew that we would not be married within the rabbinate,” Zion-Waldoks says. “This was a form of a political statement, relating to gender and equality and the fact that getting married in the rabbinate implies the subjugation of women. We wanted our ceremony to express our Jewish identity and our values of partnership, love and mutual respect.” The couple was married in a private ceremony conducted by a like-minded Orthodox rabbi. And while the Zion-Waldoks family live as modern Orthodox Jews, in the eyes of Israeli and Jewish law they are merely cohabitating.
Warns Ben-Porat: “These workarounds actually perpetuate the situation, because they create a detour around the need for change. Because Israelis, religious and non-religious alike, have found ways to solve their problems, they have little incentive for political action.”
I’m a religious Jew. My future wife is a Jew. I will not shop around to find someone who will agree to that. It’s the truth.
Since Israel’s founding, all attempts to push for the establishment of civil marriage have failed. A civil marriage bill was recently voted down in the Knesset in a resounding 52-19 vote. “When it comes to marriage and divorce,” says Zvi Triger of the Academic College of Management in Rishon L’Tzion, “even if tomorrow we were to have civil marriage in Israel, 90 percent of Israelis would still have a religious marriage.”
Most Israeli Jews believe that the rabbinate serves an important purpose in maintaining the Jewish character of the state. But with the rabbinate’s newfound rigidity, a range of studies shows that passive acceptance of its control over marriage is waning. A 2013 survey conducted by Geokartography, an independent Israeli research group, determined that 71 percent of Israeli Jews said they were not pleased with the chief rabbinate. In its research, Hiddush, the NGO promoting religious pluralism, found that 63 percent of Israelis and 88.5 percent of those who define themselves as secular support the possibility of civil marriage in Israel.
Encouraged by these statistics, a new coalition is forming to push for civil marriage, says Mickey Gitzin, a member of the Tel Aviv City Council. Gitzin is also the executive director of Israel Hofsheet [Be Free Israel], an NGO advocating for ending the Orthodox monopoly that is part of a broad group of Israeli organizations developing public campaigns to create pressure on the government.
Gitzin attributes some of the new energy around this issue to the dissatisfaction that Israelis feel toward their politicians, whom they view as cynical and motivated by self-interest. “Parties like Yesh Atid, headed by Yair Lapid, and HaTnuah, headed by Tzipi Livni, promised that they would push for change,” he says. “Then they became part of the government and backed down. And [Prime Minister Benjamin] Netanyahu, who doesn’t even have a single haredi party in his coalition, still is afraid of angering the ultra-Orthodox in case he needs them in the future.”
Jews are not the only ones calling for change. The lack of civil marriage in Israel also impacts the members of all other recognized religions—Muslim, Baha’i, Druze and 10 Christian denominations such as the Latin (Roman Catholic) Church and the Greek Orthodox Catholic Church. Like Jews, each of these groups is bound to its own religious courts. Since there are only 120,000 Christians in Israel, the marriage pool is small, says Amnon Ramon, an expert in Christianity at the Jerusalem Institute for Israel Studies. As a result, “most of them ‘intermarry’ between the denominations. Which means that one member of the couple ‘converts’ to the other’s denomination, because the different clerical courts will not agree to intermarriage.” This situation is exacerbated, he adds, because the Latin Catholic Church does not recognize conversion.
But most affected are Muslim women who are bound by sharia law. Suha Abu-Assawa, a Palestinian-Israeli feminist activist from Haifa, in Israel’s northern region, says that the Muslim courts routinely discriminate against women. “Like the rabbinic courts,” she explains, “the courts are made up solely of men. Women have no standing. And like the Jewish courts, their interpretations of Islamic law are strict and usually anti-woman. According to their interpretation of Islamic law, for example, if a woman is divorced, she has no claim to custody of her children.”
Most fraught is intermarriage between Jews and Arabs, who make up 20 percent of Israel’s population, and are mostly Muslims. This August, Israeli newspapers were full of stories about the wedding of Morel Malka, a Jewish woman who converted to Islam, and Mahmoud Mansour, an Israeli Arab. Hundreds of angry protestors held a noisy demonstration against the marriage. They were organized by Lahava, an extremist NGO that opposes “miscegenation,” as it calls marriage between Jews and non-Jews. Most of the press coverage did not mention that the couple had no choice if they intended to marry: It is very difficult for Muslims to convince the rabbinate to convert them.
Israel’s rabbinate has become increasingly bold in asserting its authority over conversions conducted in the United States. In 2008, in one sweeping move—and with the support of a single American Orthodox organization, the Rabbinical Council of America—the rabbinate limited its recognition of conversions performed abroad to a short list of handpicked rabbis and rabbinical courts. As a result, Hiddush estimates that at least half, and perhaps even two-thirds of all children growing up in the American Jewish community today would not be allowed to legally marry in Israel.
Debbie Waxman’s story is typical. Waxman, now 31, moved to Israel 13 years ago. “I came from a Zionist home,” she says. “I came to Israel on a year program and decided to stay. I felt at home here, as a Jew. I served in the army and then studied law. I belong here.” Two years ago, Waxman fell in love with an Israeli man whose family has lived in Israel for four generations. Thinking herself savvy, she brought her mother’s certificate of conversion along when they went to register for a marriage license at the rabbinate. “My mother converted even before she met my father,” Waxman tells me. “She was a proud Jew. We kept kosher at home and attended synagogue regularly.”
Their application to be married, however, was rejected since Waxman’s mother was converted in a ceremony performed by a religious court in America composed of Conservative rabbis. In the eyes of the Israeli rabbinate, Waxman’s mother never converted and she herself, born to a non-Jewish mother, was not a Jew.
According to Sheleg, the requirement that an approved Orthodox rabbi oversee conversion is new to Jewish history. “Ruth the Moabite never underwent a conversion ceremony,” he says. “Ruth simply declared her commitment to Naomi, her mother-in-law, she accepted Naomi’s god and became part of the Jewish people. She was even the great grandmother of King David.” Sheleg adds, “It is part of the ultra-Orthodox zeitgeist to pretend that nothing has changed in Judaism for centuries as if any change would contradict 3,000 years of Jewish history and practice. But it’s not true. Most of what the ultra-Orthodox and the rabbinate are claiming is actually less than 200 years old, and is a product of the response to the Enlightenment.”
Although Waxman and her future husband can and will be married by a Conservative rabbi in the United States, she says that she is hurt and humiliated by the treatment she has received in Israel. But she is furious at American Jewish leaders. “The American Jewish community nurtured my Judaism and encouraged my Zionism,” she says. “But the community hasn’t done anything about this. They haven’t confronted the Israeli political leadership.”
Susie Gelman, a leader of the American Jewish community, agrees that these are significant issues that must be addressed. Gelman is the past president of the Jewish Federation of Greater Washington; inaugural chair of the Birthright Israel Foundation; and has twice served as the North American co-chair of the General Assembly of the Jewish Federations of North America (JFNA). “We encourage our children to make aliyah,” says Gelman. “We educate them to be committed to the Jewish state—but then the Jewish state doesn’t think they are Jewish enough. This situation is mind-boggling and it needs to change.”
Even more than that, “the issues of marriage, divorce and conversion are fundamental issues of civil rights and civil liberties,” she continues. “They are also fundamental issues for the Jewish people. Prime Minister Benjamin Netanyahu has repeatedly declared that Israel is the nation-state of the Jewish people. For this to be true, Israel needs to recognize the religious practices of Jews throughout the world.”
To this end, JFNA has established the Israel Religious Expressions Platform Committee, which Gelman co-chairs. The committee is meeting at JFNA’s November General Assembly to begin to determine its direction and recommendations. Other major American Jewish groups are also paying attention to the issue. In January, the American Jewish Committee (AJC) established an ongoing workshop to examine issues relating to marriage and divorce in Israel and their effect on Israel-diaspora relations.
The implications extend far beyond questions of civil rights and the basic human right to marry and establish a family, says Dov Zakheim, a former national security advisor to President George W. Bush and advisor on the Middle East to Republican Presidential contender Mitt Romney. “Israel cannot continue to ignore the diaspora and our Judaism or the American Jewish community will simply disconnect from Israel,” says Zakheim, who is currently serving as chair of the American Jewish Committee’s Commission on Contemporary Jewish Life. “The American Jewish community is the main source of the support that successive American administrations have given to Israel. If Israel loses American Jews, it will lose American support. And that would pose a serious strategic threat to the very existence of the State of Israel. We have no intention,” he says definitively, “of letting that happen.”
Few in Israel seriously suggest that the rabbinate be stripped of its power, and American Jewish leaders, insist that they, too, are not calling for abolishing the rabbinate. “We are not trying to force American-style Judaism on Israelis,” says Jerry Silverman, president and CEO of the Jewish Federations of America. “But at a minimum, Israel must recognize all streams of Judaism and provide a civil option for those who choose it. We are not imposing anything. We are creating a platform for dialogue.”
This dialogue will include American and Israeli partners. The North American groups will emphasize the conversion issue while the Israeli groups, Zakheim says, are focusing more on marriage and divorce. “But it is all part of the same situation—the chokehold that the rabbinate in Israel has had for so many years cannot continue.”
Ultimately, Yair Sheleg believes that introducing some form of civil marriage and divorce would serve the best interests of Judaism. “If the rabbinate had competition—from other streams of Judaism and from a civil system—it would have to adapt itself. It wouldn’t be a monopoly, and so would have to become more friendly and more in touch with the communities it is meant to service. This would open up wonderful opportunities to bring Israeli Jews closer to their Judaism, instead of being turned off.”
This summer, after numerous inter-ventions by influential rabbis in Israel and Canada, Shlomit Lavie traveled to Canada at her own expense and performed the halitzah, aided by the Chabad religious courts, who convinced the brother-in-law to appear for the ceremony.
Upon her return, Shlomit and Alon were sure that they would finally be allowed to marry. But to their horror, the rabbinic court, citing another arcane religious law that is applicable only to Jewish men of Ashkenazi descent, declared that since they had cohabitated and since Alon is an Ashkenazi Jew, the couple could never be married in the eyes of the Jewish state.
True, they could be married in an unofficial Conservative or Reform or even Orthodox ceremony, or get married abroad. But that is not what Shlomit and Alon want. “We want a traditional marriage, and we want to be married in the eyes of the State,” insists Shlomit. “We are proud Jews. We are raising our children as proud Jews. The rabbis should not have the right to forbid us from marrying. I’m not a fighter, but I don’t want to be humiliated like this.”
Alon speaks up. “It is astounding to me that the rabbis, who say they care about Jewish unity, are forcing us to live as an unmarried couple because I am an Ashkenazi.”
Under Tehila Cohen’s guidance, Shlomit has appealed the decision to a higher rabbinic court. Cohen remains hopeful that a court made up of different rabbis will have the halachic will, and find a halachic way. “There are many wonderful rabbis who realize that Judaism and democracy really can exist together,” she says optimistically.
Shlomit merely sighs and asks: “How long are we supposed to wait?”