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(photo credit: Ariel Jerozolimski)
Supreme Court President Aharon Barak hit a sensitive nerve this week by criticizing Israel's lack of a civil marriage option, reigniting an issue that has been smoldering for years.
The question of who may be considered to have been "joined in the holy bonds of matrimony," to borrow a foreign phrase, is a serious civil rights issue that also touches on the hot-button questions of "who is a Jew" and now "who is a rabbi" that deeply divide Israeli and Diaspora Jews alike.
According to the law, all Israeli citizens must marry under the auspices of their faith, and mixed marriages are not allowed. Since the religious courts in the Jewish sector are controlled by the Orthodox stream, this is bad news for Israelis whose Jewishness is considered valid by the state but invalid by Halacha. For them, the Rabbinate is a natural target of their anger and frustration.
The best way to diffuse the situation would be to separate the religious element of marriage from the social-legal element. By legislating for a civil marriage definition, the Knesset would confer all the legal rights and social benefits of a state-sanctioned marriage, without impinging on the sanctity of traditional Jewish marriage.
There is a perfectly valid precedent for this: the question of "who is a Jew." The Law of Return defines Jewishness for the purposes of citizenship very differently than the Rabbinate does under Jewish law. The distinction is not without its problems, given that over 200,000 recent immigrants are not Jews according to state religious authorities and, not incidentally, represent a large part of the demand for civil marriage. But this is a working example of how a religious category - and one at least as central religiously as marriage - can have separate definitions for civil and religious purposes.
Similarly, if non-Orthodox rabbis both here and abroad were able to perform weddings that would be recognized by the Interior Ministry, it would be unnecessary to fight the Rabbinate for its recognition as well.
The Rabbinate, of course, would object to the fact that Jews would have their non-halachic marriages recognized, decrying the erosion of Jewish marriage. But the Rabbinate's monopoly on Jewish marriages is broken each year by a large number of citizens who seek alternate frameworks for their weddings.
By continuing to oppose the creation of a framework for civil marriage, the religious establishment may think it is defending a monopoly. It is not. It is already in competition with options that many Israelis have been exercising freely. Thousands of people have circumvented the Rabbinate entirely by venturing abroad for non-halachic or even non-religious wedding ceremonies that are then recognized by the Interior Ministry. Thousands more live together as virtual spouses, married in all but name only.
Neither of these "bypass" options is good from either a religious or societal point of view. The state, as Barak implied in his criticism, should not be driving its own citizens away or to avoid marriage entirely. Also, many couples avoid the Rabbinate out of opposition to the principle of coerced religion, rather than a desire to avoid marriage in a religious ceremony. Having the option of civil marriage available might well, ironically, cause more couples to consider a religious ceremony in Israel.
Clearly, then, the Orthodox establishment needs a new approach. Through a combination of callousness and incompetence, both of which have been well documented in these pages, it has failed to endear the Rabbinate and Halacha to secular Israelis. To convince more people of the benefit of its ways, the Orthodox establishment needs to take a positive, outreach-based approach to make itself more attractive. In short, it needs to abandon coercion in favor of civility.
The government, too, must choose the civil option - that is, civil marriage - to ensure the rights of those who seek sanction, rather than sanctity, for their union.
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