When it comes to marriage in Israel, the system is seen by many as more of a theocracy than a democracy. People who wish to get hitched must do so through a religious institution and a religious ceremony — be it Jewish, Muslim, or Christian. The option of two people from different religions marrying is nonexistent. Civil marriage? A joke. Same-sex marriage? A far-fetched fantasy.
However, others believe the situation can and indeed should be changed, preferably sooner rather than later. A topic of much debate, the issue of civil marriage in Israel has resurfaced in recent months for a few reasons, including a surge of newly elected MKs who have mentioned it.
The recent “forming of a coalition without ultra-Orthodox parties might have opened an opportunity for change,” says Professor Pinhas Shifman, long considered one of Israel’s leading experts on the matter.
The 68-year-old Shifman studied law at The Hebrew University of Jerusalem, where he later taught and was given tenure as professor. His specialty is the field of family and partner relationship laws, and his ideas and writings on the subject are often quoted in verdicts by Israel’s High Court.
His publications include many which refer to the option of civil weddings and nonreligious marriage in Israel. In his 1995 book “Who’s Afraid of Civil Marriage?” he laid the theoretical and practical foundations for changing the system.
Last month, through Metzilah, a self-stated “Center of Zionist, Jewish, Liberal and Humanist Thought,” Shifman — in collaboration with Dr. Avishalom Westreich and edited by Israel Prize winner Professor Ruth Gavison — published a new plan for civil marriages in Israel.
Forming one government-controlled civil framework for marriages is crucial for Israel as a democracy and will also help the Orthodox world of halacha (Jewish law) to move forward and reinvent itself, the professor told The Times of Israel in a recent interview.
The Supreme Court has forced the state to recognize, de facto, quite a few methods of nonreligious weddings, “including recognition of civilian marriages from abroad, nicknamed ‘Cyprus weddings,’ the idea of common law marriages, and even some private marriages.” Shifman details the changes that have taken place in the past couple of decades, as Israel has moved away from the legal practice it inherited from the British Mandate — one the Brits had carried over from the times of the Ottoman Empire.
Historical context is important when dealing with the question at hand, Shifman says, launching into the heart of the matter. “There are three main reasons that Israel has kept the Ottomanian Empire’s laws in place” and still have not legislated civil marriages to this day, the professor explains from behind his desk at the College of Law & Business, which he founded in 1995. Covered in formal-looking books, notes and letters, the desk and workplace takes up most of the space in the room.
The current situation hurts human rights and desecrate G-d’s name
“First, the Orthodox parties, originally formed to provide for the communities that elected them, became a goal and not a means. They started to talk about things like ‘the unity of the nation,’ which is nice and symbolic but has no realistic meaning.
“Second, the rabbinical courts themselves are a large system, providing for jobs and political leverage that has an interest of self-survival.
“Third — and this is important — the non-religious citizens of Israel aren’t worried about the situation. Some don’t care about the marital institution at all and find other ways to simply live together. Others are willingly bowing down to the ultra-Orthodox community when it comes to this issue, mostly because of ignorance,” Shifman says, summing up the problems facing the system.
Still, he is cautiously optimistic: “Right now, the ultra-Orthodox parties are those who have taken over the rabbinical courts. The Jewish Home [party] doesn’t have a political interest to keep the situation as it is, and there are people expressing an openness to re-examining the status quo.”
This so-called “status quo” is the framework of agreements formulated with regard to religious affairs in Israel. In addition to marriages, the arrangement also includes public transportation on Saturday — which is very scarce — and maintaining Kosher kitchens in the public sector. Earlier this month, Finance Minister Yair Lapid said his Yesh Atid party would work toward “major changes” in some of these fields.
“People realize the situation can’t continue. The current situation hurts human rights and desecrates G-d’s name,” says Shifman, himself a modern-Orthodox Jew with a kippa on his head. Those most hurt by the system are Orthodox Jews who can’t just ignore the rabbinical courts like some secular people opt to do, he adds, “especially Orthodox women.”
Talking with passion, the former Hebrew U professor explains how problems like Agunot (women who have been refused a divorce by their husbands) remain in place, mostly because of the system structure, and not — as many believe — because of Jewish law.
The Orthodox parties, originally formed to provide for the communities that elected them, became a goal and not a means
“There are solutions. It’s not that [the rabbis] can’t find them, it’s that they don’t want them. They support an old, patriarchal system,” Shifman says of the Israeli rabbinical courts. “In the US, for example, the reality is different, and the rabbinical courts know they have to solve the issues, because if they don’t, people won’t come to them.”
“The rabbinical courts need to get their power and mandate from the people and community, not from the state. Only if the public can opt out of its contract [with the courts] will they ever be under pressure to find real solutions to the various problems they face,” he explains.
Such a situation will provide not only the Orthodox, Conservative, and Reform factions of Judaism as a stance, but also allow for a pluralistic view of Orthodoxy, Shifman says. “Let’s admit it — not all those categorized as ‘Orthodox’ have the same beliefs and observance level.”
In an opinion piece published on Ynet’s Hebrew site last week, Shifman (and his colleagues) called for the state “to adopt a model of one civil framework for marriage and divorce in Israel. This model will require early civil supervision for conducting weddings, and give legitimacy to a multitude of ceremonies, religious and civilian, according to the citizen’s choice.”
Asked about whether he feared such a plan would fragment the Jewish world and create multiple geneology lines that would never meet, Shifman laughed. “That situation already exists,” he says seriously.
“A woman can choose to have a baby from a man who isn’t her husband, and many of the ultra-Orthodox conduct thorough background checks before approving a match for their child,” he says, listing some of the problems people like to believe the current situation solves.
Not everything is clear and some questions are left without an answer, he admits, when referring to the details of his vision. Will divorce be an easy process, done at will, or will there be some sort of system to make sure people don’t take the path simply because it’s easy?
“Should there be single sex marriage or not? It’s a question many democracies are struggling with, and it’s separate to the question of civilian marriages,” Shifman says.
Another important issue relates to second marriages. While Shifman believes the country should allow anyone divorced to remarry, he acknowledges that Gavison has a different view.
The Gavison-Medan paper (a document dealing with matters of religion and state written along with Rabbi Ya’acov Medan and published in 2000), declares that “if someone is married in a religious ceremony, the state should provide a second wedding license only after that person received a religious divorce,” much like is accepted in the US, Shifman explains.
Very cautiously, the veteran fighter for civil marriages hopes more people in decision-making positions may be opening up to the ideas he’s been talking about for decades. But, he concedes that “only time will tell” if a real shift is made or not.
While there remain differences of opinion among those grappling with the questions, and “some questions have to be left open at the moment,” Shifman says there’s one thing everyone dealing with the issue agrees upon. “It’s time for change. The status quo curbs people’s individual freedom, blurs the difference between religious and civil laws and disputes and, overall, harms Israel.”
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