It was a back-alley religious wedding. The bride, in her 30s, an Orthodox Russian-immigrant divorcée. The groom, a 40-something native Israeli. The wedding hall, a dingy, cramped three-room Jerusalem apartment.

They were married by an Orthodox rabbi, accompanied by a sliver of the groom’s large Yemenite family and a few friends. Blessings were recited under the huppah and, as in Yemenite custom, ash was sprinkled to symbolize the destruction of the Temple. A glass was broken. Burekas, Israeli salads and pita followed in the first of the couple’s traditional Sheva Brachot meals.

Fourteen years ago, this couple decided to marry outside the Israeli Chief Rabbinate for a variety of personal and pragmatic reasons: She’d had a hard time with her halachic divorce through the rabbinate; he preferred living off the grid. And the couple didn’t have much money to spare on the relatively hefty registration fee.

“I feel free having married without the rabbinate,” the bride told The Times of Israel recently. “I decided that, whether we split or not, this will be my final wedding,” she said. She added that she is unconcerned about possible halachic problems, including hypothetically becoming an aguna — an anchored woman — if the marriage dissolves, and is sure their two daughters cannot be considered mamzerim (bastards).

This couple is hardly alone in choosing to marry outside the auspices of the rabbinate. Reform/Conservative Jews, the disenfranchised secular, and some 400,000 Israelis who are Jewish enough to be citizens, but not considered halachically Jewish to marry through the rabbinate, often marry abroad or in independent, unrecognized ceremonies.

What is a remarkable zero confidence statement, however, is the increasing trend of halachically Jewish Modern Orthodox couples who are bypassing the rabbinate for reasons of conscience. Many disagree with the religious monopoly exercised by the state. Others feel the ceremonies offered through the rabbinate and its partner organizations are anachronistic, and desire halachic, but more egalitarian, means.

A Jewish couple stand underneath the huppa. (Illustrative photo: Serge Attal/FLASH90)

Illustrative photo of a Jewish couple standing underneath the huppah. (photo credit: Serge Attal/Flash90)

There are indications that the rabbinate is hip to this trend and feeling threatened. In what was broadly publicized in its passage as a liberal step to end the rabbinate’s griphold on life-cycle events, the Tzohar Law, which went into effect last month, allows for a more free-market approach to choosing a rabbinate registrar (more on that later). The law also includes, however, new sanctions on those who perform independent halachic ceremonies, which could ostensibly lead to a two-year jail sentence.

‘Israel is the only Western democracy that legally sanctions a religious monopoly over marriage and divorce’

This measure joins existing sanctions on a couple that refuses to register a halachic marriage, which date back to Ottoman Empire laws, later inherited by the British Mandate. They were adopted in turn by the fledgling State of Israel, which has since amended them through a patchwork of Supreme Court rulings.

Many consider the law to be both out of step with the ethos of the country and a human rights violation. Hiddush, an organization that fights for religious freedom and equality, last year conducted a poll that found 62% of Israelis support recognition of civil, Reform and Conservative marriages in Israel.

In a position paper examining the need for civil marriage published by Metzilah – a center for Liberal Zionist Jewish thought — the organization’s president, prominent legal scholar Ruth Gavison, said that “Israel is the only Western democracy that legally sanctions a religious monopoly over marriage and divorce.”

The penal sanctions have yet to be enforced and, according to an array of anecdotal evidence gathered by The Times of Israel, are not a deterrent to the halachically knowledgeable liberal Orthodox couples who are philosophically opposed to the existing state system. (Although there are various estimates that mention some 7,000 independent weddings a year, the spokespersons of both the Central Bureau of Statistics and the Interior Ministry say that neither of these bodies keeps records of the numbers of common-law marriages, under which these ceremonies would officially fall.)

How it’s done

Gender Studies scholar and feminist activist Tanya Zion-Waldoks married her husband in a halachic ceremony outside the auspices of the Israeli rabbinate. For her, and for many liberal Orthodox couples, the normative Orthodox huppah of one-sided kiddushin — in which a woman is silently “purchased” — no longer reflects the status of women in society.

For couples who are legally able to marry in the rabbinate but choose not to, “often it is a political statement that has everything to do with gender and equality, and the fact that the rabbinate is implicit in the subjugation of women,” explained Zion-Waldoks. She cited the still-unresolved problem of agunot, which is directly related to the one-sided nature of Orthodox marriage and divorce.

Zion-Waldoks said that since there are complications in finding an Orthodox rabbi willing to risk his wedding permit from the rabbinate by presiding over such ceremonies, sometimes they are conducted by knowledgeable laypeople who are willing to adapt tradition in ways ranging from symbolic to fundamental, such as allowing women to recite the traditional blessings under the huppah, or giving a gift of a ring to a groom.

She stressed there is no halachic need for a rabbi to officiate, but it has become the norm, and also a way for the state to keep tabs on its population. Marrying outside the rabbinate is “a little civil disobedience,” she said, “and certainly not ideal.”

A Modern Orthodox couple with a sea view (Illustrative photo credit: Dima Vazinovich/Flash90)

Illustrative photo of a Modern Orthodox couple (photo credit: Dima Vazinovich/Flash90)

“I don’t want to encourage the current rabbinate in any way. I want to lessen their power so that we won’t need to be dependent on their conservative monopoly to determine how to be a Jew in this country,” asserted Zion-Waldoks.

The scholar wrote a Hebrew essay describing her ceremony in which she also lists her motivations. She and her husband consulted with a team of three prominent rabbis and two female Torah scholars and were meticulous in staying within the boundaries of halacha while pushing them to their limits.

“One major thing that we didn’t publicize at the time involves what you can do to protect women from becoming agunot. What the people who drew up our ketuba did was create a conditional kiddushin, an additional legal document so that if anything goes terribly wrong — that if my husband would God forbid disappear in war, go into a vegetative state, or we’d live apart for an extensive period of time — the marriage could be dissolved.”

This religious contract is legally binding after both partners’ consent. Under the prescribed conditions, the marriage could be retroactively annulled. An example of such a document is now promoted by the Center for Women’s Justice under the title “Contract for a Just and Fair Marriage.”

Drs. Michal and Elitzur Bar-Asher Siegal, university lecturers — she in Talmud and he in Semitic languages — were serving as halachic advisers in the “partnership minyan” movement when couples began asking them to perform wedding halachic ceremonies. “People find scholarship reassuring, even when not going through the rabbinate,” said Michal, who lectures at Ben-Gurion University in Beersheba.

The couple performs marriages — in an egalitarian statement as a pair — and will only officiate in cases in which there is no rabbinic intervention. “There are a lot of gross injustices being done by the rabbinate,” claimed Bar-Asher Siegal.

This means no official state marriage registration or marrying abroad because once an Israeli couple registers as married with the Interior Ministry, Israeli law dictates that their divorce, no matter how or where they were married, must be performed by the appropriate state-sanctioned religious authority, which for Jews is the rabbinate.

The Bar-Asher Siegals circumvent the need for a religious divorce by having their couples married “al tnai” — under conditional contracts in which the couple agrees that the marriage is conditional on cohabitation. If the couple doesn’t live together for a set period of time, for instance 18 months, the marriage is retroactively annulled.

‘The Internet, Facebook and databases allow for a much more indirect way for disseminating the knowledge’

“It’s all accompanied by a serious study of halacha, which, until 10-15 years ago, was only accessible by few. Now the Internet, Facebook and databases allow for a much more indirect way of disseminating the knowledge,” said Bar-Asher Siegal.

In their own wedding 15 years ago, they married with a “Palestinian ketuba” from a version found in the Cairo Geniza that Elitzur wrote for them. This ketuba, Michal explained, is more egalitarian in that it includes both a “woman’s voice and man’s voice” in delineating their responsibilities.

Elitzur showed the ketuba to the head of Yeshivat Har Etzion (where he studied), Gush Etzion’s Rabbi Aharon Lichtenstein, who had agreed to marry the couple. However, he first checked with eminent Talmud scholar Rabbi Aharon Soloveitchik shortly before his 2001 death, who had no objections.

“[Our wedding] was 15 years ago and the height of revolt,” laughed Bar-Asher Siegal. The wedding ceremonies she performs with her husband today are much more “radical.”

The Bar-Asher Siegals build ceremonies around the basic halachic requirements, but customize them as much as possible for the couple. “There’s nothing [halachically] wrong in doing it this way,” she asserted.

Many liberal Orthodox Israelis once turned to Tzohar rabbis in the hopes of a more feminist huppah. In the past decade, however, with sanctions from a rabbinate that increasingly views the Rabbi David Stav-led organization as “subversive,” many of these rabbis will no longer allow even an exchange of rings, which also pushes some toward independent ceremonies.

Is this much of a phenomenon?

In the past 15 years, part of Orthodox Jewry has seen the rise of a new and more liberal, egalitarian sensibility. A convergence of institutions such as Open Orthodoxy’s Yeshivat Chovevei Torah and now its “little sister” Yeshivat Maharat, the Jewish Orthodox Feminist Alliance (JOFA) and grassroots initiatives such as partnership minyanim all push the halachic envelope on women’s issues.

As graduates of these institutions and members of partnership minyanim head towards marriage, many are unable to face what they see as a patriarchal procedure in the rabbinate and are turning to independent halachic weddings.

‘Many young brides are not willing to put up with something their mothers may not have had a problem with’

“These ceremonies are happening more and more. Ten years ago, it would have been unthinkable and it is certainly an option today,” says Dr. Tomer Persico, a lecturer on religion and a popular blogger who is unabashed in his criticism of the existing religious institutions. Persico marries couples through an organization called Havaya, which facilitates “Israeli life-cycle ceremonies” to a largely secular clientele.

Persico points to many factors, mainly the rise of Orthodox Jewish feminism and a lack of confidence in a corrupt rabbinate. “Many young brides are not willing to put up with something their mothers may not have had a problem with,” he explained.

This phenomenon involves a minority of Orthodox Israelis, continued Persico, but “in terms of quality, it is sort of an elite, the people who will then drive changes in society. These are often people in influential positions, setting public opinion and processes that will be gradually picked up and become more influential.”

Persico, who is religious, himself married through an independent halachic ceremony a few years ago.

“There are a few things you can do without breaking the halacha, but rabbis from the rabbinate are not willing to do it if it has the smell of a Reform wedding. The smell is enough to make it forbidden,” he said.

Persico explains the rabbinate threatens Orthodox rabbis with sanctions, saying the new threat in the Tzohar Law “is written in a vague way — on purpose?” so it can be interpreted that only Orthodox rabbis performing these independent halachic ceremonies will be jailed, but adds his reading of the law is that even laymen performing these weddings could be jailed.

“Of course, it will never be enforced,” he added, calling it “the last act of a desperate man.”

Most Israelis don’t turn to alternative weddings, and there are two organizations that strive to make normative marriage more user-friendly — Tzohar and Itim. Headed by US-born Rabbi Seth Farber, Itim aids in navigating the rabbinate for life-cycle events. Farber says the organization receives up to four calls a week about independent halachic ceremonies.

“It is definitely a growing phenomenon and is most highlighted by the recent bill that makes it illegal to perform or participate in such a ceremony. Itim is now trying to roll back the legislation,” said Farber.

Why mainstream Orthodoxy thinks this is a really bad idea

In a conversation with The Times of Israel this week, Rabbi David Stav of Tzohar certainly empathized with the impetus for being wed through an independent halachic ceremony.

“I can understand the need, and many are afraid of the bureaucracy that might take place in divorce and want to express that through a decision that is a protest against the religious establishment,” said Stav.

A couple in Jerusalem's rose garden. (Illustrative photo: Rachael Cerrotti/Flash90)

Illustrative photo of a couple in one of Jerusalem’s rose gardens (photo credit: Rachael Cerrotti/Flash90)

There are many reasons not to bypass the rabbinate, however, and not only because such a step is illegal. Stav’s main reason is to protect women, which, ironically, is also the goal of many who perform and participate in these ceremonies.

“Suppose the couple is registered in an official local rabbinate office, [in case of divorce] the husband will never be able to deny his legal and halachic commitments to his wife. Once he is doing it independently in a way that hasn’t been confirmed by the government, he may refuse to give a get – a divorce — and the one who is most likely to suffer will be the woman.

“I recommend to people to think not only of their feelings now, but of the results,” Stav continued.

When asked about a conditional marriage — one that would dissolve and be retroactively annulled if the condition, such as cohabitating, is not met — Stav was vehemently dismayed, saying these contracts would not be admissible in mainstream Orthodoxy.

“It makes the problem even worse, because most rabbis don’t accept this kind of tnai [condition]! They will be considered as married wives [because, he explains later, Orthodoxy sees cohabitating as a form of de facto marriage]. It does terrible things to the kids.”

By an Orthodoxy that disregards these conditional marriages, halachically the woman would be seen as married, explained Stav. And should she want to marry again, this time through the rabbinate, she would need an official rabbinate get. Otherwise, any children she would bear in the future would be considered mamzerim, a halachically problematic category that should be avoided.

Rabbi David Stav attends a conference promoting youth and education in the Israeli parliament. January 06, 2014. (Miriam Alster/FLASH90)

Rabbi David Stav attends a conference in the Knesset promoting youth and education, on January 6, 2014. (photo credit: Miriam Alster/Flash90)

Stav, whose organization works with — and parallel to — the rabbinate, sees the blame for driving couples to these independent halachic weddings in the rabbinate’s treatment of women, especially in divorce.

“I urge the rabbinate to help people who are afraid to get married — because they are afraid of the divorce — to ease the process so that people will know that once they start the process, we will be with them and supportive of them, for divorce as well,” claimed Stav.

Until then, feminist scholar Zion-Waldoks stresses that “all couples, especially those who don’t want to go as far as marrying outside the rabbinate, should at the very least make sure to protect themselves from get refusal by signing halachically binding prenuptial agreements such as the Agreement for Mutual Respect, now supported by many top halachic authorities including Rabbis of the Beit Hillel organization.”

Baby steps toward small ‘r’ reform

In a meeting with The Times of Israel editorial staff this week, Religious Affairs Minister Naftali Bennett said the Chief Rabbinate should not be revolutionized, but that he and his team were making “incremental changes” to make it more user-friendly.

“We’re not going to go from zero to 10, but I am willing to go from zero to five,” said Bennett.

Bennett, who is also the minister of Diaspora affairs, was recently instrumental in resolving the high-profile scandal that emerged when New York Rabbi Avi Weiss’s testimony was rejected by the rabbinate after two new immigrant former members of Weiss’s congregation attempted to register to be married in Israel.

Diaspora Affairs Minister Naftali Bennett at the Israeli parliament February 11, 2014. (Flash 90)

Religious Affairs Minister Naftali Bennett at the Israeli Knesset, February 11, 2014. (photo credit: Flash 90)

The minister told The Times of Israel that he is aware of the widening gap between Diaspora Jews’ and the rabbinate’s definitions of Jewishness and that he has met on several occasions with American Jewish leaders of all denominations to discuss the issue. This made him the first religious affairs minister to meet with non-Orthodox leadership.

Bennett pointed to recent successes such as the potential creation of a third Western Wall pavilion, which would accommodate mixed prayer, and the draft of ultra-Orthodox soldiers.

The Times of Israel understands that Bennett’s party is not willing to back a civil-marriage bill. However, there are several parties, including Jewish Home, in this Knesset that are looking into a “shutafut” — a partnership program — with the rabbinate and the government that would enable Israeli citizens (and presumably their children) who immigrated through the Law of Return to get married in Israel.

Bennett is also the first Modern Orthodox MK in charge of the predominantly ultra-Orthodox-run ministry. With Bennett’s support, this government succeeded in passing the Tzohar Bill, which had languished for over a decade. The Tzohar Law allows for a free-market approach in choosing the regional branch office of the rabbinate at which a couple may register, as the registrars work to attract couples — and their registration fees — through better service.

Bennett also pointed to a reform in the works at the Ministry of Religious Affairs, which would allow for active communities to elect their own rabbis. This is essentially an adaptation of blueprints laid down by the organization Ne’emanei Torah Va’Avodah, said Bennett.

The Religious Zionist organization’s end goal is to create a “democratization of religious services in Israel,” their lawyer Assaf Benmelech told The Times of Israel.

To be clear, the Religious Zionist organization is not calling for a separation of religion and state, but rather a separation of religion and politics, which would have communities choose the rabbi to service them.

‘All the denominations can play on our field. We want to open the religious services and put as many players as possible there, from Israel and the world’

Take, for example, the case of Reform Rabbi Miri Gold, the poster child of an eight-year battle for state funding for a progressive regional rabbi. “According to our model, if the kibbutz wants a Reform rabbi, that rabbi will be funded,” says Benmelech.

In this model, the rabbi could be from any denomination, or even secular, such as the newly state-funded secular rabbi in Nahalal, Rabbi Chen Bar-Or Tsafoni.

“We don’t believe in a pure, free market, but in competition,” said Benmelech. This new system would still need government regulation, comparable to the four public providers that compete for patients in offering better services under the supervision of the Health Ministry.

“All the denominations can play on our field. We want to open the religious services and put as many players as possible there, from Israel and the world,” explained Benmelech.

With a government coalition that was formed without the ultra-Orthodox parties, he said that “we’ve never had a better chance than now.”

Is civil marriage the answer?

Itim’s Farber believes there will be civil marriage in Israel one day, “but that doesn’t absolve the religious authorities of responsibility. There needs to be accessible religious marriage as well. The rabbinate will hopefully try to improve in order to compete. Anything that challenges a monopoly is helpful.”

Religious Studies lecturer Persico agrees, and said that Israel doesn’t have a choice. “We have 400,000 citizens who cannot marry… who are Jewish according to their heritage, but not according to the rabbinate. It’s already a subject a few parties have on their agenda, and will be the next big change to the status quo. Whether in this Knesset or the next, I don’t know — it may take even 10 years — but I’m almost certain it is a matter of time.”

Farber said the fact that so many young people are disaffected “reflects poorly” on Israeli civil society. “But civil marriage is a tool, and won’t represent the ultimate victory for diversified Jewish life In Israel,” he stated.

Tzohar head Stav is willing to discuss civil marriage after other pressing issues — such as conversion and Jewish identity — are addressed.  In the meantime, in his opinion, “I recommend to the government to encourage citizens to prove themselves as Jewish, and recommend to the rabbinate that it accept these proofs and not raise obstacles to new immigrants, and try to ease bureaucracy and be as friendly as possible.”

“I think that our obligation, here in Israel, is to make sure that there is eternal continuity for the unity of the Jewish people here. A fundamental part of that unity is that they can marry each other,” proclaimed Stav.