Should Israeli law permit civil marriage? The answer is yes because, given all
of the non-ideal options, it is the most likely to help this country become a
more Jewish and a more democratic state. Allow me to explain.
Over
the past few columns, we have discussed the halachic status of relationships
established under unconventional circumstances. These include couples who
cohabit but are not married (pilegesh) and those who married exclusively through
government authorities (civil marriage). We concluded that according to
normative Jewish law, neither arrangement is permissible. Some decisors believed
that post facto, a couple that married under civil law created a sufficient
legal bond that would require a writ of divorce should they split up. Yet the
current consensus maintains that such arrangements do not create halachic
marital bonds and therefore, when necessary, we waive the requirement for a
divorce writ.
Since its founding, Israel has granted jurisdiction over
marriage and divorce to the Chief Rabbinate. As such, civil marriages between
Jews are not performed in this country, with the many questions regarding such
nuptials originating in weddings performed abroad. In recent years, the courts
have ordered the Interior Ministry to recognize marriages performed abroad. As
such, the government will recognize, for example, the marriages of non-Orthodox
immigrants from America or Israelis who go to Cyprus for the weekend.
The
latter option is frequently chosen by couples who cannot marry under Jewish law,
as is the case when one partner is a not halachically Jewish, or when a kohen
desires to marry a divorcee. Alternatively, they simply live together outside
any formal marital framework.
Yet civil marriage abroad is also chosen by
many secular Israelis who have found the process of working with the rabbinate
to be unprofessional and religiously demoralizing. While there are
undoubtedly many employees of the rabbinate who serve with dignity and kindness,
it has unfortunately received a reputation, fairly or otherwise, of a certain
amount of professional callousness.
To alleviate this problem, the Tzohar
rabbinic organization established a marriage project that helps provide a more
user-friendly, religiously uplifting experience for secular couples. As I write,
legislation is advancing in the Knesset to help ensure that all couples, no
matter their place of residence, can register at a Tzoharfriendly municipal
rabbinate. Yet because Tzohar works within the strictures of Orthodox Halacha,
some couples (including many children of immigrants from the former Soviet
Union) still may not marry within the state.
There are those who continue
to maintain that even though this policy denies these citizens the right to
marry, it remains appropriate to not allow the state to sanction non-halachic
relationships. Yet former Sephardi chief rabbi Eliyahu Bakshi-Doron has
marshalled several arguments against imposing halachic marriages upon the
broader Israeli public, many of which have to do with contemporary trends of
divorce and infidelity (
Techumin 25). Once a couple is halachically married, any
extramarital relationship is deemed adulterous, with offspring from that affair
deemed
mamzerim (illegitimate children with limited halachically permissible
marital opportunities). This problem can become particularly acute since
divorcing couples may seek other companionship before ensuring that a halachic
get (divorce writ) has been drawn up by the rabbinate. Accordingly, it
remains preferable, in the long run, for such couples to remain halachically
unmarried.
BAKSHI-DORON denounces any attempt to solve this problem by
finding ways to subtly invalidate weddings performed for secular couples (such
as by not using kosher witnesses for the ceremony). He notes that according to
many decisors (
Hatam Sofer EH 100), any public wedding that is attended by many
people becomes, perforce, accepted as legitimate. More fundamentally, he,
along with Rabbi Moshe Sternbuch (
Teshuvot Vehanhagot 641), finds such deception
to be immoral and unfathomable.
Bakshi-Doron further questions the
halachic standing of weddings when the couple has no interest in the ceremony
and only desires to receive civil benefits. He notes that historically many
decisors, such as chief rabbis Abraham Kook (
Ezrat Kohen 41) and
Benzion Uziel
(EH 2:49), felt that marriages performed primarily for immigration purposes
(such as receiving immigration rights) were not considered valid.
While
other scholars demurred (
Meshaneh Halachot 10:238), Bakshi-Doron believes
everyone would agree in the case of a couple that is ideologically opposed to
traditional Orthodox conceptions of marriage.
To my mind, allowing for
civil marriage would remove much of the animosity created by religious coercion
and instead facilitate more meaningful religious experiences for those who would
continue to choose a rabbinic wedding. According to surveys, 80 percent of
secular couples eligible to halachically marry would opt for a religious
wedding, even if they had a civil alternative. The choice would become a
meaningful decision of Jewish identity that would be further strengthened by a
rabbinate forced to provide premaritial counseling and wedding ceremonies that
are both halachic and meaningful.
It behooves us to forsake the empty
symbolism created by state-mandated religious coercion and replace it with
substantive Jewish identity.
The writer, online editor of Tradition and
its blog, Text & Texture
(text.rcarabbis.org), teaches at Yeshivat
Hakotel.
JPostRabbi@yahoo.com