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
In order to solve the problem of agunot, the first step would be recognition of the problem, which, as far as Weiss is concerned, has its sources in a patriarchal system that is no longer relevant. “Understand that it can no longer be in the hands of the husband whether the woman is married or divorced,” Weiss said. “Then there are ways to overcome it. Conditional marriage. Changing the marriage ceremony so it’s not kinyan”—a ritual of acquisition. In a doctoral thesis she recently submitted to Tel Aviv University’s Anthropology and Sociology Department, Weiss tried to understand the rabbinic perspective. “Are they just these mean, horrible people who want to discriminate against women and oppress them? That’s the feminist trope, but I don’t think so. I think at a certain point in time, I understood that justice is not what is motivating the rabbis,” Weiss told me. “That was a tremendous understanding, a tremendous revelation.”
Weiss cited the anthropologist Mary Douglas, for whom gender was not so much about power but rather symbolic of a larger political unit. For the rabbis, Weiss argues, the distinction between men and women is symbolic of their theocratic power: God is to man as man is to woman. “The difference between Orthodoxy and the Conservative or Reform traditions is that the Orthodox adhere to that order, that theocratic order of things,” Weiss told me. “I think here in particular, the rabbis are distinguishing themselves through that theocratic order, it’s part of their identity too, they are ordering universes, everything is very clear where men and women belong, what’s fleishig, what’s milchig, a desire for a certain order, and if we say no, their whole world order will come apart, so not only is it reflective of their theocratic order, but it’s reflective of their internal order, their identity, where they fit in, so it’s a very hard dilemma.”
Increasingly, Weiss is preoccupied with a whole spectrum of issues stemming from the rabbinate’s position on marriage. Recently, she appeared before the Supreme Court in Jerusalem representing unmarried women who wanted to bathe in state mikvaot, or ritual baths. These single women also wanted to bathe, though medieval rabbinic law forbids unmarried women from frequenting the baths. Weiss argued that they must be allowed to use the baths. “It’s their civil right!” she exclaimed. “My taxes pay for these mikvaot so that these women can be sexually available to their husbands. I want my client to be able to use them, this state institution. So, it was a beautiful human rights case. I thought, great, it’s going to be a little case, because nobody is getting hurt and it’s not a big major change in the whole system, all [the rabbis] have to do is not watch and they won’t compromise their values.”
At the first hearing, Weiss suggested a “don’t ask, don’t tell” policy modeled on the now-suspended approach the American military used for two decades as a bridge to recognizing the rights of gay servicemembers. “The judges thought that was a really cute idea, and they asked the rabbinic courts to adopt don’t ask, don’t tell,” Weiss said. The rabbis agreed to go along with it, insofar as they said a sign declaring mikvaot for the use of married women would suffice. “So, I get to court and the judge asks me to withdraw my case, and I said, ‘Why should I withdraw my case? It’s a human rights violation, it’s freedom of expression, it’s freedom of conscience, and it’s freedom from religion, of religion, it’s this great case, and they said, ‘We told you last time, that the only issue before us is don’t ask don’t tell, and you got it. Now withdraw your case.’ And it took me a while to understand, in other words, I did, I succeeded a lot, I did a step forward for womankind and for human rights in Israel, but it wasn’t everything. And here I was before the Supreme Court and they weren’t listening to me.” Weiss got slightly emotional. “They weren’t listening to me,” she repeated. “Like I didn’t count.”
It’s a feeling she’s had in her personal life, too. She told me about attending services at her shul one Shavuot and finding that many of the people invited to speak during the holiday’s all-night study sessions were discussing a case that she had brought before the Supreme Court. She wasn’t asked. She is mortified that a friend of hers, a Bible scholar, is never asked to speak in her shul. “I’m having a prayer crisis,” she finally admitted. “It’s hard for me to sit behind a mechitza, to not be counted.”
Weiss has stopped going to rabbinic courts. “There are no wheels of justice,” she told me. “It’s very difficult. And, you know, you see you’re up against a tribunal of rabbis, men with authority, with beards, and you understand the whole system, and it’s very hard. Going into the trenches—it’s hard.” She told me about one client, a woman who was illiterate whose husband wanted her to give up a lot of money in exchange for a get. The rabbis, who wanted her to get the get, also thought she should give up the money. “They called her into their chambers, and they didn’t want me to come in,” Weiss said. “And I said, I’m going in with her, this is why I’m here, I’m here to represent her. And they said, no, we’re going to call the police on you, you can’t come in. And I said, this is my civil right, it’s her civil right to have representation. I’m coming in. And they started to call the police.” Weiss called the head of the Beit Din, who stopped it. “These rabbis have the power of the state,” Weiss reminded me. “They are authorized by the state to do this. I was standing before these judges who were going to put me in jail for representing my client! The whole problem is when the state gave power to these clerics who don’t have to answer to anyone but God, and they are the only ones who know what God has to say.”
But Weiss is determined to be heard. “I don’t really care what anyone thinks about who I am or if I am Orthodox or not or if I am a feminist or not. I don’t care how they label me. Because I am true to myself, true to how I see things, true to what I think is happening here, true to my American values.” She laughed. “And you know, what are they going to do to me, right? Are they going to put me behind the mechitza? Are they going to not let me give a dvar Torah in shul? Are they going to not let me leyn?” She laughed again. “What are they going to do, not count me in a minyan?”
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