Diana Mirtsin and Alexander Skudalo, Israeli citizens who immigrated from the former Soviet Union, live together, with their baby, in Tel Aviv. Very much in love, they would like to marry–but they cannot make it official in Israel. This is because the Israeli rabbinate does not recognize Alexander as Jewish, because although his father is Jewish, his mother is not Jewish. Diana points out the irony in their frustrating family situation: “If there is a war tomorrow, he’ll be Jewish enough to fight for Israel. But he’s not Jewish enough to marry here.”
According to the country’s law, marriages in Israel are performed by sanctioned religious authorities–be they Muslim, Jewish, Druze, or Christian.
Within Israel, only the Israeli rabbinate can marry Jewish couples. And the Israeli rabbinate is an exclusively Orthodox institution, so it insists that the marriages its rabbis perform be subject to the strictures of traditional halakhah (Jewish law).
Because of this policy, a significant portion of the Israeli population, like Alexander Skudalo, cannot marry in Israel. The Law of Return grants anyone with at least one Jewish grandparent, and his or her spouse, the right to immigrate to and settle in Israel and gain automatic citizenship. But the Israeli rabbinate will only perform the marriage of a person defined as Jewish by Orthodox halakhah–in other words, someone born to a Jewish mother or converted through the Orthodox rabbinate.
As a result, thousands of immigrants admitted to Israel under the Law of Return cannot marry in Israel, because the Israeli rabbinate does not recognize them as Jewish. Since these people are also not affiliated with any other religion, no other religious authority can marry them. In 2009, there were over 300,000 Israelis, mostly immigrants from the former Soviet Union, who were not recognized as Jewish by Israel’s rabbinate, and who had no other religious affiliation. This group includes people whose mother is not Jewish, as determined by the rabbinate, but might have a Jewish grandparent or Jewish father, and might be considered Jewish by other standards.
The Israeli rabbinate will also not perform marriages prohibited by Jewish law. An interfaith marriage cannot take place in Israel, because each of the sanctioned religious authorities in the state will only marry two people who both belong to that religion. A kohen, a man of priestly lineage, cannot marry a convert or divorcee. A halakhic mamzer, someone born of an adulterous or incestuous relationship, cannot marry anyone other than another mamzer. A woman whose husband cannot or does not grant her a Jewish divorce also cannot remarry.
In 2010, Israel passed the Civil Union Law, allowing a couple to marry civilly in Israel if they are both registered as officially not belonging to any religion. Out of the 300,000 Israelis not recognized as Jewish by the Israeli rabbinate who have no other religious affiliation, only 30,000 are officially registered as without a religion, so only they can take advantage of this law. This law also does not help couples like Diana and Alexander, where one member of the couple is registered as Jewish, nor does it help a Jewish couple that cannot or do not want to marry through the Israeli rabbinate. Still, civil marriage advocates see this law as a small step in the right direction, and hope that it will lead to more far-reaching legislation.
Jewish Israelis who cannot or do not wish to marry through the Israeli rabbinate must explore other options. Since the Israeli population registry recognizes civil marriages performed abroad, a growing number of Israelis are marrying in civil ceremonies outside Israel, and circumventing the rabbinate altogether.
Cyprus, a relatively convenient locale near Israel, is a particularly popular marriage destination for Israelis. Israelis who also hold citizenship in another country have the option of marrying civilly at that country’s consulate in Israel. And some Israelis who wish to have a religious wedding, but do not want it to be Orthodox, marry in a Reform or Conservative ceremony either overseas or in Israel, but also have a civil marriage outside of Israel.
Many Israelis find these solutions problematic, and advocate for the institution of civil marriage in Israel. Former president of the Israeli Supreme Court, Aharon Barak, argues that the right to marry and build a family is a fundamental human right and is essential to human dignity. But many religious Zionist leaders and most if not all ultra-Orthodox Israelis, including the ultra-Orthodox political parties United Torah Judaism and Shas, disagree.
They argue that maintaining the rabbinate’s exclusive control over issues of personal status, particularly marriage and divorce, is an essential part of maintaining Israel’s character as a Jewish state. Practically, they also worry that instituting civil marriage will encourage intermarriage and assimilation within Israel.
The Mamzer Argument
In addition, many religious leaders are concerned that civil marriage and divorce could create a deep rift within Israeli Jewry, by enabling the possibility that many halakhic mamzerim (plural of mamzer) will be born in Israel.
Uri Paz, in an article on the website of Aish ha-Torah, an Orthodox Jewish educational organization, explains that according to Jewish law, civil marriage, although not ideal, still counts as a valid marriage after the fact. Civil divorce, however, does not count as a valid divorce according to Jewish law. Therefore, if a couple were to marry, either in a religious or a civil ceremony, then divorce civilly without getting a religious divorce, and then the woman were to remarry civilly, any children produced in her second marriage would be mamzerim, since Jewish law would consider her still married to her first husband.
By instituting civil marriages and divorces in Israel, the argument goes, the number of mamzerim will rise. Israeli Jews who observe halakhah will not be able to marry growing numbers of Israeli Jews whose parents or grandparents did not.
Movement for Change
In recent years, however, some religious leaders in Israel have spoken out in favor of civil marriage. Rabbi Seth Farber (pictured), founder of Itim: The Jewish Life Information Center, an organization “dedicated to making Jewish life accessible to all,” argues that Orthodox Jews should be at the forefront of the struggle for some form of civil marriage in Israel.
Farber believes that secular Israelis who are forced to marry through the rabbinate often become hostile toward the rabbinate and Orthodox Judaism in general. Therefore, instituting civil marriage would actually enhance the prestige of the rabbinate. More importantly, he believes that denying thousands of Israeli citizens the right to marry violates the fundamental Jewish value of human dignity, kavod ha-briyot.
Rabbi Farber also argues that civil marriage in Israel would actually create fewer mamzerim, not more. Children born to parents who were married in a non-religious ceremony are not necessarily mamzerim, he explains, because mamzerim are only defined as children of an adulterous or incestuous relationship. Children born to two people not halakhically married to each other–ie, two people wed in a civil ceremony–are not mamzerim. Farber also disagrees with Paz, and argues that if a woman were to civilly marry, then divorce and remarry, the children of the second marriage would not be mamzerim, because the civil marriage would not count as a valid halakhic marriage in this situation.
Similarly, Susan Weiss, a leading advocate for agunot (women whose husbands refuse to grant them a Jewish divorce), argues in favor of civil marriage. Her position is that if non-religious couples were able to marry and divorce civilly, this would be a major step forward in alleviating the problem of agunot in Israel. If non-religious women did not marry in religious ceremonies, they could also divorce and remarry in civil ceremonies, thus circumventing any risk of becoming agunot.
In 2009, a poll conducted by Tel Aviv University found that 65% of the Jewish Israeli community supports civil marriage, but 70% still say that it’s important to them to marry in a religious ceremony. Setting the mamzer debate aside, these results suggest that civil marriage would not undermine the Jewish character of the state, because the majority of Jewish Israelis would continue to marry in religious ceremonies.
Civil marriage continues to be hotly debated in Israel today, because at stake in this debate is the very nature of what it means to be both a Jewish and democratic state.