Maverick women’s rights lawyer looks to change the game, not play it
Ahead of International Agunah Day, attorney Susan Weiss describes her fight against windmills in the dual Israeli religious and secular courts
Deputy Editor Amanda Borschel-Dan is the host of The Times of Israel's Daily Briefing and What Matters Now podcasts and heads up The Times of Israel's Jewish World and Archaeology coverage.
Pencil in hand, Susan Weiss pores over a recent Supreme Court interim decision — and chuckles with glee. Like a Talmudist finding a novel hiddush hidden in the text, the attorney and veteran feminist activist finds evident joy in discovering a new way to look at an old problem.
But as the founder of a legal center that seeks to provide aid “whenever church and state clash over the bodies of women,” her scholarship could also soon have practical applications.
In the cramped Jerusalem-based Center for Women’s Justice offices, she opens a window to the adjoining room and calls out to another lawyer on her small staff: “Aviya, we need to look at this section further. There could be something here for us.”
Ahead of International Agunah Day, Weiss spoke with The Times of Israel about her center’s role in fighting for the rights of Israeli women. It is an uphill battle in the Jewish state, with its bifurcated secular and religious official identities.
‘We come in and ask the civil arm of the state to limit the human rights violations that are going on by the religious arm of the state’
In matters of life-cycle events, religious courts that follow traditional Jewish law have jurisdiction. Written centuries ago by male scholars, many contemporary feminists consider halacha blatantly patriarchal. And protecting women’s rights in such a system can be a Sisyphean task.
But Weiss — often described as a “legal gadfly” — is pushing back.
“We come in and ask the civil arm of the state to limit the human rights violations that are going on by the religious arm of the state,” says Weiss in an in-depth interview.
A fashionably bespectacled anthropology PhD, she was raised in the United States and comes from an Orthodox background. However, unlike many of her contemporaries who believe in compromise and finding solutions from within the world of halachic legal scholarship, Weiss says, “I’ve moved my focus from the religious establishment and the beit din [rabbinic courts] to the state.”
“We have a problem because we took this halachic apparatus and system, and tried to juxtapose it onto a modern legal system. And it doesn’t really work,” she says. Jewish law has its place in the private lives of individuals, but not as the guiding dictum of a democratic state, Weiss adds.
“I would close it all down.”
Anchored women, anchored in law
Having been on the legal front lines for over 30 years, many of Weiss’s cases involve aiding Israeli women who wish to dissolve their marriages but whose husbands refuse to divorce them.
In most countries, the ability to marry and divorce are considered essential human rights. In Israel, however, Jewish law requires a man to provide his wife with a writ of divorce (get) as the sole way a Jewish couple can officially sever its relationship. A woman whose husband refuses to give her a get is called an aguna, or anchored woman.
There is no civil marriage or divorce in Israel. According to an early March poll conducted by the NGO Hiddush: For Religious Freedom and Equality, 90 percent of Jewish Israelis would like to see a change in the state’s policy toward agunot.
Weiss’s favored tactic is using the civil courts to apply pressure on recalcitrant husbands by filing punitive tort cases. The husbands are infringing on their spouses’ human rights and should pay fines, she argues.
‘There is no equality for women in the area of marriage and divorce and that that is a giant flagrant violation of human rights’
“There has to be an understanding that there is no equality for women in the area of marriage and divorce and that that is a giant flagrant violation of human rights,” says Weiss.
The fact that Israel could only sign on to the United Nations’ 1980 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) with “reservations,” she says, is proof of an underlying problem.
According to a 2016 report produced by the Rackman Center for the Advancement of Women’s Status for CEDAW’s ongoing committee of 23 international experts, “The plight of the agunot is indeed the most extreme expression of women’s inferiority under Jewish family law.
“The construction of gender in Jewish law of marriage and divorce, as it is understood and practiced in rabbinical courts in Israel, results in unequivocal inferiority and vulnerability of women,” the report said.
“In a nutshell, Jewish law conceives of marriage as a one-sided transaction in which the man betroths the woman and not the opposite. This sanctions inequality and discrimination regarding spousal obligations and rights toward each other during the course of marriage, as well as sanctioning harsh limitations over the process of divorce and inequalities with respect to the detriment of women,” read the multi-page report.
One of the recommendations of the Rackman report was for there to be a broader application the Sanctions Act, which is a way for the court to compel husbands to divorce their wives. Israel’s 1995 Rabbinical Courts Law “extended the rabbinical courts’ power and gave them civil enforcement powers” — sanctions including “different types of restraining orders, revocation of driver’s license, restricting limitations of one’s bank account, stay of exit order, imprisonment and more,” the report said.
‘You can’t just put a ‘bad man’ in jail forever because he is obnoxious’
That law is little used, according to the Rackman report: only 47 times in 2015, which is “a relatively small number that does not reflect the phenomena as a whole.”
But maverick Weiss breaks lockstep with her activist colleagues in heralding the use of these sanctions, which can include jailing husbands for years.
“My position is that we’re all agunot today because the state puts us in the position of marital captivity… The state should not be making us all agunot,” she says. However, “You can’t just put a ‘bad man’ in jail forever because he is obnoxious.” She jokes, “I know lots of terrible people I’d like to put in jail.”
But “the state cannot infringe on the liberty of its citizens… Don’t tread on me! I have freedoms, states are meant to protect those freedoms.”
‘Fighting windmills’
Taking on only about 30 “potentially game-changing” cases a year, the Center for Women’s Justice works to set legal precedents in secular civil courts that challenge rabbinic decisions, regulations and policies that are harmful to women. Its goal is twofold: to force civil courts to protect women’s rights when compromised in the name of religion, and to push back on rabbinic jurisdictional overreach. In 2016, about 35% of the center’s cases addressed “get abuses.”
Staffed by a handful of female lawyers and law students, the center takes cases that have “qualitative rather than quantitative potential,” one staff member quipped. With a tiny budget of under half a million dollars, it’s not a walk-in legal aid office for women looking for help. However, the center is working to double its budget in the coming two years, in the hopes of exponentially increasing its impact.
“I’m not a lone voice, but I think we do see it here best. I think a lot of organizations are still trying to work within, correct within. The human rights violations aren’t being spoken about very clearly,” says Weiss.
‘The state is a social construction that has to abide by certain rules to protect its citizens, and I don’t want to live in Iran!’
“Most of the NGOs operating in this area are still in compromise mode, or think that there will be a [Jewish law] decisor who will be creative and solve everything so everything lives in harmony,” she says. She has given up on such hopes.
For Weiss — whether she is discussing the aguna issue or her client the Original Women of the Wall group and its multi-decade fight for religious parity at the Western Wall — the work is about fighting for the protection of human rights.
“The state is a social construction that has to abide by certain rules to protect its citizens, and I don’t want to live in Iran! I want to live in a democratic state where my liberties are being protected and where I don’t fear that they’ll put me in jail for any reason,” she says. “But who is protecting it? The Center for Women’s Justice? That’s it?! It can’t be.”
Weiss sighs and admits she sometimes feels she is “fighting windmills.” She acknowledges that to the greater Jewish Diaspora, the agunot issue is marginal and looked at as some kind of Orthodox halachic “hocus pocus.”
“But the state is compounding those windmills and arguments and hocus pocus,” she says.
This issue is starkly relevant in the Jewish state — and only getting worse as the religious authorities are fighting to increase their jurisdiction with few, largely unheeded, checks from the Supreme Court.
“The rabbinical courts are state authorities, and as such, are indeed subject to review, but they overextend their authority, and cannot be forced to implement the court’s orders. Often, they will not,” former Israeli Supreme Court president Dorit Beinisch said at a 2013 conference on the issue.
Although she’s far from quitting the struggle, Weiss is worried.
“We the people give the state authority over us, but a limited authority. Other than that, we should be free. And we’re not free! And the more I see it, the more frightened I feel,” says Weiss.
‘We the people give the state authority over us, but a limited authority’
Change, she says, will not come from the Knesset but rather from grassroots moves such as avoiding the rabbinate for marriage. And she still holds out “a little hope” for developments through the Supreme Court.
“Sometimes I actually feel a little bad for the Supreme Court. Sometimes it seems they’re almost afraid — they know what they should be writing, but they’re almost afraid that if they write it then either the Knesset will pass some sort of [opposing] law and they’ll have to deal with the law or there’ll be a big demonstration outside the Supreme Court,” Weiss adds.
“But somebody has to say it. I don’t think that this can continue.”
