Blind to Legal Consequences


The surreptitious long arm of Israeli rabbinic courts.

by Susan Weiss

Most Israeli Jews are not bothered by the problem of religion and state. Certain that no entanglement of the two will entrap them, they believe that we liberals who demand civil marriage and divorce in Israel are exaggerating, that we have no respect for tradition. Thus, Israeli Jews most often marry happily like authentic members of the tribe, as required by the Jewish State, while remaining complacently blind to the real legal consequences of state strong-arming. The same religious/state rules that bind them effortlessly in holy wedlock will only begrudgingly allow them to divorce.

Recently, the film Gett: The Trial of Viviane Amsalem has made the problem of state coercion of Jewish divorce more visible. Israelis are beginning to understand how wrong it is for the state to impose religious rules. But what they don’t know is that things are even worse than they imagine. The rabbinic strong-arm is expanding, and its grasp is going beyond those who want to marry and divorce. Unburdened by such ideas as human rights, and sure that the Torah way is the only way, Israeli rabbinic civil servants increasingly infringe on the freedoms of us Israelis in creative ways, coercing us into obeying religious rules and adopting religious values.

Let’s take the case of L. as an example. L. is in a romantic relationship with another woman and recently asked her husband for a divorce. He agreed. He even agreed that L. have custody of their children. But, in a somewhat cynical attempt to maneuver better financial terms to their divorce agreement, L.’s husband requested that the rabbinic court forbid L. from allowing their children to intermingle with the children of her lesbian partner – for the good of the children, of course. The rabbinic court agreed and issued a restraining order against L. Though the court did not expressly forbid L. from living with her partner, the order did just that.

In September 2014, the Center for Women’s Justice (CWJ) petitioned the Israeli Supreme Court to set aside the rabbinic court decision against L. CWJ argued that the sexual orientation of Israeli citizens should not be taken into consideration when determining their custodial or parental rights. It demanded that the Israeli Supreme Court state clearly that rabbinic courts must base their decisions on issues ancillary to divorce in accordance with modern values, democratic principles, and human rights. CWJ claimed that, while state rabbinic courts may be bound by their interpretation of halakhah with respect to marriage and divorce, they should apply secular values when deciding matters like education, child custody, and division of marital property. Same-sex couples, maintained CWJ, have a fundamental right to raise a family, to take care of their children, and to educate them.

Moreover, and most importantly, CWJ asked the Supreme Court to declare that rabbinic courts had no jurisdiction to interfere with the freedom of conscience of L. and her partner. While rabbinic courts may have jurisdiction to determine who has custody of the kids, or what kind of education the kids should get, no law gives rabbinic courts authority to tell parents how to live their lives. The rabbinic court had no jurisdiction to issue an order that effectively prevented L. from living with her partner, or dictated who her children could play with. In a similar vein, a rabbinic court has no jurisdiction to issue an order preventing a divorced heterosexual woman from living with a cohen [a priest] (a real case), or directing a parent on how to keep the Sabbath or how to cover one’s hair.

In the case of L., the Supreme Court refused to take a stand, hesitant as it always is to step on rabbinic toes. It left CWJ’s petition open until the court-appointed psychologist issued her opinion as to whether or not it was “in the best interest” of the children to be exposed to their mother’s new relationship. Though it may seem to have been diplomatically sidestepping any confrontation with the rabbinic courts, the Israeli Supreme Court’s dodging implicitly supported the expanding, surreptitious, long arm of rabbinic courts into the personal lives of all of us Israeli citizens.

In the end, L. and her husband reached an agreement. It included the transfer of jurisdiction over all future matters between them to Israeli family courts. L’s husband realized that the rabbinic long-arm could reach into his personal life, just as it had into L.’s and her partners. He did not want that.

L. and the kids moved in with her partner and her kids. In the meantime, the Israeli Supreme Court failed, once again, to meet the challenge of an Israeli citizen to protect her human rights from the surreptitious long arm of Israeli rabbinic courts, leaving all of us exposed.

There is one thing that is certain. We Israelis need whatever help we can get to make our government understand that human rights and women’s rights cannot be compromised on the altar of religion and politics.

About the Author

Susan Weiss is a scholar-in-residence at the Hadassah Brandeis Institute and the founding director of the Center for Women’s Justice. While at Brandeis, she will be writing about the different tactics that the Israeli Supreme Court uses to avoid confronting the human rights violations of state religious actors.

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