love marriage wedding.
(photo credit: Ariel Jerozolimski)
Recent political machinations have again raised the prospect of civil marriage in Israel. Unfortunately, this issue is so laden with partisan emotion as to prevent a clear analysis of the situation. The result is that state-mandated Orthodox halachic restrictions on matrimony have created a festering wound in Israeli society.
An objective review of the legal and religious reality leads to the conclusion that civil marriage, if properly instituted, is an appropriate solution.
Under Israeli law, an individual may only be married in accordance with the procedures of his religious community. Thus, Jews may only be married through the Orthodox rabbinate. Since the rabbinate implements religious law - Halacha - Jews may not marry non-Jews and a kohen may not marry a divorcee.
With several hundred thousand halachically non-Jewish Russian immigrants in Israel (who are nonetheless entitled to rights under the Law of Return), the number of couples who wish to wed in Israel, but may not, is increasing.
Even more problematic are the pesulei hitun - "non-marriables" - the child born to a Jewish mother conceived from an adulterous union or even to a Jewish mother who was divorced (abroad) in a civil proceeding but never received a get. Such a child is a mamzer and essentially may never marry at all.
The only relief available to those wishing to contract religiously unlawful marriages and to the "non-marriables" is to be married in a civil ceremony outside of Israel, which is recognized by Israel under its private international law commitments, but not recognized by Halacha.
For instance, a former Supreme Court justice, a kohen - now deceased - went abroad to contract a marriage with a divorcee. But for the vast majority of people, this "relief" is both undesirable and unworkable.
ON THE face of it, resolution of the situation is actually simple - namely, to create an alternative system of civil marriage, alongside the religious law, which would apply to those marriages that would not be permitted under religious law: Jew and non-Jew, mamzer, divorcee to kohen, etc.
The secular community has long sought such a resolution. The Orthodox religious establishment has, with few exceptions, expressed vehement opposition. Why?
First, the religious establishment is concerned that, given the choice, a large percentage of Israelis would choose the civil marriage route, thus eroding the power base of the religious authorities. Second, the religious community still holds on to the imaginative idea that Israel is a Jewish state, based on principles of Jewish law, and that the essentials of Jewish practice (Sabbath, holidays, marriage) are accepted by a consensus of the population, notwithstanding the fact that the overwhelming majority of Israeli residents do not practice a halachic lifestyle.
Third, some believe that an alternative route for recognizing and liquidating marriages would create a societal divide - those whose marriages and births were sanctioned by the rabbinate and those who were not so sanctioned, with the attendant consequences.
Fourth, many rabbis believe that civil marriage would nonetheless be considered as a valid marriage under Jewish law - in light of the halachic rule that marriage may be contracted not only by means of a ceremonial act but also by the very conduct of intimate relations. Thus, civilly married women would nonetheless require a Jewish divorce - the get - failing which a subsequent child would be considered a mamzer, who may never marry.
NONE OF these objections holds water. If a large percentage of Israelis would prefer civil marriage, so be it. Coercive marriage has never brought anyone back to the fold. To the contrary, the marriage registration practices of the rabbinate are generally deemed to turn off most secular and non-Orthodox Israelis.
If the rabbinate is faced with competition, it will have to shape up or ship out. The time has come to face reality - most Israelis do not feel any connection to the basic tenets of Jewish law. They cannot be attracted by coercion. As to the population divide, it already exists. There are hundreds of thousands of halachically non-Jewish citizens of Israel, who speak Hebrew, serve in the army and meet Jewish members of the opposite sex. If the religious status of an individual is important to a potential suitor, the need for research already exists.
The fourth problem, namely the halachic status of a person who contracts a civil marriage, is not new. Such marriages have been the subject of religious legal decisions by the outstanding rabbis of the past century, including particularly the late Rabbi Moshe Feinstein, the leading decisor of Jewish law in the United States. According to these decisions, when a couple contracts a civil marriage in "circumstances which indicate that they did not intend to create a Jewish, legal, marital relationship" - then, indeed, no such relationship is created. The woman is not married for purposes of Halacha, the dissolution of the marriage does not require a get, children born of the relationship are both Jewish and marriageable and children born of "adulterous" unions during such marriages or even after such marriages have been dissolved without a get are unblemished as regards their right to marry under Jewish law.
So how does a couple demonstrate "circumstances which indicate that they did not intend to create a Jewish, legal, marital relationship"? Simple - as part of the civil marriage proceeding, the parties would execute a document stating that they have chosen the civil marriage route for reasons of conscience or other reasons and that they do not intend to create a Jewish, legal, marital relationship.
The time has come (unfortunately) to offer civil marriage for those who do not wish to be, or cannot be, married under Jewish law. A halachic solution, which is quite consistent with considerations of conscience, exists to solve the problem. The religious establishment must face up to reality and withdraw its opposition to such a solution.
The writer is an international lawyer based in Tel Aviv and adjunct professor of law at Cardozo Law School in New York.