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
Israel has a marriage problem. In April, Hiddush, an Israeli nonprofit, published a “Freedom of Marriage World Map,” which graded countries based on the level of freedom each grants its citizens with regard to personal status. Israel was the only Western country that received a grade of 0, putting it in the company of Afghanistan, Iran, Pakistan, Saudi Arabia, and Sudan.
This data point shocks because it is in conflict with the many other freedoms enjoyed by citizens of Israel. In contrast with areas such as freedom of speech and political opposition, when it comes to marriage and divorce, Judaism is established as the state religion in a very real way, and the rabbinate maintains a monopoly over family law that even the country’s Supreme Court ratifies. The failure to separate church and state in Israel in this one crucial arena has resulted in the imposition on all Israeli citizens—religious or not—of Orthodox Jewish law.
Many of the women who get caught up in the rabbinic court processes are not themselves religious. If you want a divorce, the rabbinic court is the only institution that can grant it. Furthermore, in Orthodox Jewish law and thus Israeli law, a marriage cannot be dissolved from without, as a civil marriage can be. Should a husband decide he doesn’t want to grant his wife a Jewish divorce—or get—no one can force him to; indeed, a forced divorce or get meuseh, as it is called, is invalid in the eyes of the Israeli rabbinate. No civil alternative is available to Israeli citizens.
A woman whose husband refuses her a divorce is known as an agunah—a chained woman. Should she seek a civil divorce in another country and thereupon remarry, even in a civil ceremony, her remarriage would not be recognized by the state of Israel, and her children would be considered mamzerim—bastards—and unable to marry other Jews, according to Jewish law—and, therefore, according to Israeli civil law. (Wives can also veto divorces, but men can override their wives by securing signatures from 100 rabbis; there are few chained men.)
For decades, activists have struggled against the strictures of the rabbinic courts to no avail. But in recent years, one woman has changed the playing field, single-handedly advancing the cause of women in Israel: Susan Weiss, an American-born attorney who, with an outsider’s perspective, realized that she could circumvent the system by treating the unegalitarian quirks of Israel’s family law as human rights issues. In 2001, Weiss began suing recalcitrant husbands in Israeli civil courts for inflicting emotional damage on their wives. She has won the vast majority of the 50 cases she has brought, often getting both a judgment for hundreds of thousands of shekels, as well as the get from the husband.
“Susan really takes the most difficult cases, with her full abilities—scholarly, legal—and she takes them so seriously,” said Aviad HaCohen, dean of Sha’arei Mishpat, a private law college in Israel. “If she wasn’t here, we should invent her because of her very important role in Israeli society. Nobody but Susan is taking care of it.”
Weiss sports a cap of dark, curly hair, streaked with silver; it lends her a grounded quality tinted with aspects of the supernatural. When we met, last month, she was wearing horn-rimmed glasses, a loose, white blouse with a hood, comfortable blue slacks, and sandals. Her modest and unobtrusive demeanor belies her iconoclastic impulses; the fire in her eyes is easy to miss, protected as they are by heavy glasses.
The Center for Women’s Justice, which she founded in 2004 to pursue cases of agunot, is housed on the third floor of a nondescript building on Emek Refaim, at the end of a long corridor with many identical rust-colored doors, each organization identified by a quiet plaque. Inside, the office is just two rooms and a cramped foyer. Weiss suggested we talk in the hallway so as not to disturb the women hard at work in the two rooms. I followed her down the hall to a pair of couches just opposite the bathroom shared by the many offices on the floor.
Weiss alternated throughout our conversation between bashful surprise at my interest in her and a clear desire to share with me a multitude of facts, stories, and theories she thought were important about the work being done by the attorneys and advocates at CWJ. Though she is a powerful speaker, there is also an unsettling and unguarded humility to Weiss that clings to her like a scent.
I asked if we could start with her background. Weiss was raised Orthodox in Bayside, Queens. “I was expected to get married and have a family, that was supposedly my primary goal,” she told me. So, she got married in an Orthodox ceremony—“K’dat Moshe V’Yisroel”—and moved to a very traditional community in Cleveland. But Weiss, who attended Stern College and Brooklyn Law School, was also a feminist. She says her consciousness was raised when she realized, at age 6, that there is a ceremony for welcoming sons into Jewish life but no corresponding ceremony for daughters. She went to work at the Federal Trade Commission in Cleveland, where she described herself “blossoming.”
In 1980, with a 2 year old and a 2 month old, Weiss and her husband, Jacob, decided to make aliyah, both for idealistic reasons and to pursue a job opportunity for Weiss’ husband, who is also an attorney. The transition was hard. After doing an internship with Israel’s state tax division—“I always joke that I had an expertise on section 254 of the tax code, the failure to record receipts”—and passing the Israeli bar, Weiss says she was shriveling. “My career stalled, basically,” she told me. “For a while I floundered here.” Then someone suggested she volunteer for women’s organizations, an idea that quickly snowballed. Weiss began volunteering for the Women’s International Zionist Organization, and after a while she asked them to pay her. When they said no—“Why should we pay you when you’re doing it for free?”—she decided to open a private practice in divorce. “When I started volunteering, I saw the women’s issue immediately, with my feminist antennae up,” she told me. Friends offered her office space and began referring clients.
In 1997, Weiss founded Yad L’Isha, a legal-aid center offering legal representation to women seeking divorce, in conjunction with the Ohr Torah Stone Institutions of Israel. Weiss told me a story that exemplifies the stultifying literalness of the rabbinic courts. “One of the clear grounds for divorce under the Talmud is bad breath,” she told me, smiling and shrugging her shoulders. “We had a client there whose husband was really pretty awful, abusive of her physically and emotionally. And he also had bad breath. So, we were arguing that he was physically and emotionally abusive, and also we said that he had bad breath. ‘Oh, bad breath! He has bad breath? Why didn’t you tell us?’” Weiss laughed, recalling the rabbis’ response. “Then they were willing to do something.” (The rabbinate did not respond to requests for comment on this article.)
Weiss’ idea with the Center for Women’s Justice was to turn the human rights violations she saw resulting from rabbinic law into torts, which could be pursued in civil courts and measured monetarily. “There’s a real schizophrenia in the country—we’re very, very pro-women and we’re very pro-gays and pro lots of human rights,” she mused. “But with respect to this area, we just carve it out and don’t look at it, and the Supreme Court is complicit in this problem. They see it as their business to defend the rabbis, to defend the state.”
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.”
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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