Israel Has a Marriage Problem. One American-Born Lawyer Is Trying To Solve It.
Susan Weiss started out trying to win divorce cases, but now her mission is pushing Israel’s Orthodox rabbinate to change its ways
Previous efforts to fix Israel’s marriage laws started from the top down. In 1990, Frances Raday, a British-born law professor emerita at Hebrew University, tried proposing legislation to the Knesset that would enable women to sue their husbands for damages if they were denied a get in bad faith. “The religious members walked out, claiming that it would result in a forced get,” Raday told me. “So, the non-religious members, as is normal in Israel, gave in to the Jewish Orthodox pressure, the lobby, and they didn’t accept our proposal.” Weiss is in effect realizing that same idea, but through case law rather than legislation. “The clever thing that Susan Weiss has done is to go under general torts law for damages by a woman who is unjustly refused a get,” Raday went on. “Of course it would be better to have a law, but the cases are wonderful. It’s a very good move, and I am very delighted that she has decided to pursue it.”
And where Israel’s Supreme Court has historically defended the monopoly of the rabbinate over marriage, the state’s civil courts have proven willing venues for the litigation. “What I’m seeing in the family courts is, they are constructing a code of Moreshet Yisroel—Jewish heritage—where they are saying the husband promised to honor his wife, so that’s part of our heritage,” Weiss said. “If you don’t honor that promise, and you choose to torture her instead, that’s a violation of our heritage and therefore deserves damages.”
In the first case Weiss brought, she didn’t get a judgment but an interim order. The husband then gave his wife a get in exchange for a waiver of the claim. In 2004, she won her first award, for $125,000. “That was really amazing,” she said, with a broad smile. It represented the recognition that get-withholding consititutes “actual damages, real damages. They are ruining people’s lives.” Now similar suits are being brought by other attorneys, in a quiet revolution from below. As a result, Weiss believes some men have become more hesitant to withhold the get arbitrarily.
Most of the cases are win-win for her clients, Weiss said. Either the woman gets the get, or she gets damages, or she gets both. “Most of them are resolved with a get, and she gives up her damage claim, which is not a total win for us, but she’s happy.” To Weiss, the problem with that kind of quid pro quo settlement is that it undermines her central conviction: that the experience of being an agunah is itself a violation worthy of compensation. “They are saying, Oh, these cases are only being brought to encourage men to give a get. It’s only leverage,’” Weiss said. “No. It’s not only leverage.”
Weiss speaks with the confidence of a person who has never had to doubt her ability to parse reality. She also maintains a controlled kind of whimsy beneath what slowly emerges as teeming anger at the illogic of the world in which she operates. The first time I saw her speak publicly was at a conference on the problem of agunah earlier this year cohosted by the Jewish Orthodox Feminist Alliance and the Tikvah Fund at New York University’s law school. Weiss began her remarks by apologizing to the audience for what she called her “gadfly type expressions” with a helpless shrug before launching into her thesis, which was delivered with what can only be called a roguish flair: The rabbinic courts, she announced, are “short-sighted, arbitrary, patriarchal, and not concerned with justice,” a thesis Weiss supported with the stories of “the pedophile, the vegetable, the con artist, and the homosexual.” The talk conveyed Weiss’ barely concealed outrage at the absence of justice in the rabbinic courts. At another event, at the Jerusalem Bar Association in September, Weiss addressed a roomful of lawyers on the subject of grounds for divorce in the religious courts with a PowerPoint presentation that contained pages titled, “Is a Husband’s Infidelity Grounds for a Divorce?” The answer? “It depends,” in Hebrew, and in English: “Boys will be boys.” It was illustrated with a photo of Bill Clinton.
Earlier this year, with Netty C. Gross-Horowitz, Weiss published a book, Marriage and Divorce in the Jewish State: Israel’s Civil War. It is a devastating read. Weiss tells six stories in which women are mistreated first by abusive husbands, then by a court system that by virtue of its fundamentalism views them as unequal before the law. The book ends by enumerating the human rights violations in Israeli rabbinic courts, including the right to freedom of conscience, the right to equal treatment, the right to privacy, the right to due process, and the right to marry, all included in the United Nations charter, to which Israel is a party.
The women Weiss has helped see her as a hero. “She saved my life,” Aliza Pe’er told me. When Pe’er first met Weiss, she had already spent years trying to win a get from her husband. “She took the whole issue so personally,” Pe’er told me. “She read between the lines and always knew in which direction to go.” Four years ago, Pe’er won over $200,000 in damages—but her husband still refused to give her the get. “Susan was amazing,” Pe’er said. “She always had ideas, she has a heart like—you can’t describe it. Her approach to women is always positive, looking for the silver lining.” And finally, a year ago, Pe’er got her divorce. “I am so, so grateful to her,” she said of Weiss.
The status quo in Israel is unlikely to change anytime soon, and not just because the power of the religious political parties shields the existing system of rabbinical authority. “When it comes to marriage and divorce, even if tomorrow we will have a civil marriage in Israel, 90 percent will still go to a religious marriage,” Aviad HaCohen told me. “It’s a very traditional society. The problem will not be solved.”
To Weiss’ American eyes, the issue is not that there is no way to solve the agunot problem; it’s that there is no will to do so. Some feminist activists have tried pushing the rabbinate to enforce the few limited civil sanctions it has at its disposal, including jail time, to punish husbands who refuse to grant divorces. But while that might resolve individual cases of agunah, it’s a solution that, as far as Weiss is concerned, treats the symptom and not the underlying disease. “What bigger human rights violation is there when you take away the freedom of a person?” she asked. “Basically, what’s happening is, we’re throwing women into the water and asking the state to save them. The Orthodox Jewish community is just creating this problem and expecting the state to go resolve it. There’s something wrong with this picture.”
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