Should Israeli law permit civil marriage?

Should Israeli law permit civil marriage?
By SHLOMO BRODY
The answer is yes: It is the most likely to help this country become a more Jewish and a more democratic state.

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Should Israeli law permit civil marriage? The answer is yes because, given all of the non-ideal options, it is the most likely to help this country become a more Jewish and a more democratic state. Allow me to explain.

Over the past few columns, we have discussed the halachic status of relationships established under unconventional circumstances. These include couples who cohabit but are not married (pilegesh) and those who married exclusively through government authorities (civil marriage). We concluded that according to normative Jewish law, neither arrangement is permissible. Some decisors believed that post facto, a couple that married under civil law created a sufficient legal bond that would require a writ of divorce should they split up. Yet the current consensus maintains that such arrangements do not create halachic marital bonds and therefore, when necessary, we waive the requirement for a divorce writ.

Since its founding, Israel has granted jurisdiction over marriage and divorce to the Chief Rabbinate. As such, civil marriages between Jews are not performed in this country, with the many questions regarding such nuptials originating in weddings performed abroad. In recent years, the courts have ordered the Interior Ministry to recognize marriages performed abroad. As such, the government will recognize, for example, the marriages of non-Orthodox immigrants from America or Israelis who go to Cyprus for the weekend.

The latter option is frequently chosen by couples who cannot marry under Jewish law, as is the case when one partner is a not halachically Jewish, or when a kohen desires to marry a divorcee. Alternatively, they simply live together outside any formal marital framework.

Yet civil marriage abroad is also chosen by many secular Israelis who have found the process of working with the rabbinate to be unprofessional and religiously demoralizing. While there are undoubtedly many employees of the rabbinate who serve with dignity and kindness, it has unfortunately received a reputation, fairly or otherwise, of a certain amount of professional callousness.

To alleviate this problem, the Tzohar rabbinic organization established a marriage project that helps provide a more user-friendly, religiously uplifting experience for secular couples. As I write, legislation is advancing in the Knesset to help ensure that all couples, no matter their place of residence, can register at a Tzoharfriendly municipal rabbinate. Yet because Tzohar works within the strictures of Orthodox Halacha, some couples (including many children of immigrants from the former Soviet Union) still may not marry within the state.

There are those who continue to maintain that even though this policy denies these citizens the right to marry, it remains appropriate to not allow the state to sanction non-halachic relationships. Yet former Sephardi chief rabbi Eliyahu Bakshi-Doron has marshalled several arguments against imposing halachic marriages upon the broader Israeli public, many of which have to do with contemporary trends of divorce and infidelity (Techumin 25). Once a couple is halachically married, any extramarital relationship is deemed adulterous, with offspring from that affair deemed mamzerim (illegitimate children with limited halachically permissible marital opportunities). This problem can become particularly acute since divorcing couples may seek other companionship before ensuring that a halachic get (divorce writ) has been drawn up by the rabbinate. Accordingly, it remains preferable, in the long run, for such couples to remain halachically unmarried.

BAKSHI-DORON denounces any attempt to solve this problem by finding ways to subtly invalidate weddings performed for secular couples (such as by not using kosher witnesses for the ceremony). He notes that according to many decisors (Hatam Sofer EH 100), any public wedding that is attended by many people becomes, perforce, accepted as legitimate. More fundamentally, he, along with Rabbi Moshe Sternbuch (Teshuvot Vehanhagot 641), finds such deception to be immoral and unfathomable.

Bakshi-Doron further questions the halachic standing of weddings when the couple has no interest in the ceremony and only desires to receive civil benefits. He notes that historically many decisors, such as chief rabbis Abraham Kook (Ezrat Kohen 41) and Benzion Uziel (EH 2:49), felt that marriages performed primarily for immigration purposes (such as receiving immigration rights) were not considered valid.

While other scholars demurred (Meshaneh Halachot 10:238), Bakshi-Doron believes everyone would agree in the case of a couple that is ideologically opposed to traditional Orthodox conceptions of marriage.

To my mind, allowing for civil marriage would remove much of the animosity created by religious coercion and instead facilitate more meaningful religious experiences for those who would continue to choose a rabbinic wedding. According to surveys, 80 percent of secular couples eligible to halachically marry would opt for a religious wedding, even if they had a civil alternative. The choice would become a meaningful decision of Jewish identity that would be further strengthened by a rabbinate forced to provide premaritial counseling and wedding ceremonies that are both halachic and meaningful.

It behooves us to forsake the empty symbolism created by state-mandated religious coercion and replace it with substantive Jewish identity.

The writer, online editor of Tradition and its blog, Text & Texture (text.rcarabbis.org), teaches at Yeshivat Hakotel.

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reprinted from JPost.com