How did this come about? In addition to civil courts, the Israel Police also serve religious courts. When a religious court submits a complaint, the police can detain the suspect for questioning and, if need be, arrest him. In the Kafkaesque case of Rabbi Haiyun, the Haifa Rabbinical Court complained that Haiyun had officiated a marriage for a woman who was forbidden to marry, and did not report the marriage to the rabbinate.
The rabbi is a well-known and well-connected person. He managed to contact Attorney General Avichai Mandelblit, who directed the police to release him. The questioning will take place at another time, but the incident exposed one of the most embarrassing aspects of Israeli democracy: that religious matrimony laws are also part of the state's canon.
The Turks started it. The Ottoman Empire ruled over this piece of land from 1516 to 1917. It did so by means of local religious leaders, who represented their communities and could convince those communities to agree to the whims of the sultans and Turkish overlords. It was a convenient arrangement for the empire, and convenient for the religious leaders.
When the British conquered the land, they continued this practice, although they also helped the Jewish community establish secular organizations. Marital law, including divorce, remained the province of the rabbinic establishment. Israel’s first prime minister, David Ben-Gurion, perpetuated this arrangement. Today, Israel is one of the only democracies in the world where all citizens are obligated to marry and divorce in a religious framework, even if they are atheists. They are not allowed to marry outside of their religious community, meaning, for instance, that an Arab Christian cannot marry an Arab Muslim in Israel. Anyone who wants a civil marriage must marry abroad, and only then will the Israeli Interior Ministry register the individual as married according to the foreign wedding certificate. This is not a result of lenient legislation, but rather a Supreme Court ruling from 1963 in the Funk-Schlesinger case.
Israel's chief rabbinate only recognizes the Orthodox stream of Judaism and ignores Conservative and Reform rabbis. Orthodox Judaism determines who is allowed to marry couples in Israel, and it has published a list of about 1,850 rabbis who are exclusively allowed to officiate traditional Jewish wedding ceremonies. Unlisted rabbis are only allowed to officiate private ceremonies, which the state won't recognize.
The marriage and divorce ordinance, which is part of Israeli law, is a 99-year-old British ordinance that is based on a similar Ottoman ordinance. Only five years ago was a clause added to say that "anyone who does not make sure to register his marriage or divorce, or to register a marriage or divorce that he officiated for someone, is to be sentenced to two years in prison." Rabbi Haiyun has been accused of this crime, even though he is not among those authorized to officiate, and the ceremonies he officiates have no official standing.
But this is not the whole story. The couple whose marriage caused the rabbi's detention was forbidden to marry, according to the Orthodox view, because the woman is defined as a "bastard," meaning she was born out of wedlock. According to Rambam’s Mishneh Torah book of law, such a person is not meant to "be part of the Jewish community" and is sentenced to eternal singlehood, unless she marries a slave, a convert or another person born out of wedlock. In the two years that passed since the wedding, the rabbinic court decided, "out of the goodness of its heart," to nullify this terrible sentence and release the woman from bastard status. Yet this development did not interest the religious jurists who directed the Israel Police to arrest Rabbi Haiyun.
I recalled an incident that took place in 2001, when I briefly served as minister of religious affairs. One morning I was called out of a meeting and notified that a great tragedy had occurred in the rabbinic court in Haifa. The court was witness to a heated debate regarding a couple's divorce proceedings. During the debate, the wife yelled that their daughter was not, actually, the husband's child. The rabbinical judges were shocked. They asked the wife to recant, because if she didn't they would be forced to declare the daughter a bastard. The wife was incensed and repeated her statement twice. After the third time, the court was "forced" to seal the fate of the daughter for her entire life. I tried to check if it was possible to retract the decision, but the civil establishment cannot intervene in this draconian system. Over this past weekend, when news broke of an illegal marriage of a bastard, I thought the unfortunate person in question might be the child, now a grown-up, from that rabbinic court in 2001.
All of my attempts to suggest an alternative civil route for marital law failed, including the Cohabitation Law, which would have allowed unmarried partners the same rights given to married couples.
The story of Rabbi Haiyun is not in line with anything like the "startup nation" Israel purports to be. It must not become another strange episode in the history of the state. It's quite likely that the separation of religion and state will not occur in Israel anytime soon, and that even more modest legislative moves, which would enable a civil marriage track, will be blocked by a religious veto. Therefore, we must work through civil society, intensively, in the spirit of the Israeli Declaration of Independence, which stated that the State of Israel "will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex." Today, the state accepts Jewish laws that let innocent citizens fall into a trap.
The more practical option is a systematic encouragement of marriage abroad, such as in Cyprus, the most popular destination for Israeli couples seeking civil marriage because of its proximity. Many already do so today: Fly to the nearby island, get married and then hold a ceremony in Israel as they please. With the Cyprus marriage certificate, the Interior Ministry registers them as married for all intents and purposes. Civil society must help couples make this option the most common path, until we can undertake legislative change here. The other option is for the couple to make a legal arrangement that would help them be recognized as common-law partners. With this status, they could receive a large part of the rights granted to married couples.
As for the argument that if we don't all marry and divorce under the Orthodox umbrella, there would be "genealogical books" to keep track of "pure" Jewish families, and Jews would not be able to marry each other, I have some news: Such books, in one form or another, already exist. According to rabbinic law, many Jews in Israel already are not permitted to marry other Jews. This concerns, for instance, immigrants who received citizenship from a Jewish father but are not considered Jews in the eyes of the chief rabbinate. Civil marriage, followed by unrecognized wedding ceremonies like those conducted by Rabbi Haiyun, is the most reasonable path right now. And please — save us from the knock on a rabbi's door at 5:30 in the morning. There's a limit to the madness.
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