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The Other Civil Union

Never mind gay marriage. In Israel, even the conventional variety is tricky.

Michael Weiss
July 01, 2009
A religious wedding in an Israeli settlement in Gaza in 2005.(David Furst/AFP/Getty Images.)
A religious wedding in an Israeli settlement in Gaza in 2005.(David Furst/AFP/Getty Images.)

The term “civil union” has acquired special meaning in the United States as the alternative legal code allowing same-sex couples to enjoy the social and economic advantages of marriage. But in Israel, it connotes something simpler: the right for any couple, gay or straight, to wed without the approval of the Chief Rabbinate, an Orthodox governing body that still determines the only legally acceptable form of wedlock in the Jewish state. At present there are about 300,000 Reform Jews, secularists, “illegitimate” converts, and non-native Israelis who can’t obtain a recognized marriage in Israel. If you ask most close observers of the debate, their battle is a decidedly agonized one.

Early in June, a bill that would have authorized civil unions, cosponsored by a host of Kadima and Labor representatives, was defeated in the Knesset due largely to a turnabout by Avigdor Lieberman’s Yisrael Beiteinu. The party—whose largest voting bloc is made up of immigrants from the former Soviet Union and their first-generation children, many of whom the rabbinate does not consider halachically Jewish—had campaigned in this year’s national election on the promise of delivering a civil union bill. But, once in power, Lieberman changed his position to dovetail with that of the Orthodox and Haredi parties—including Shas, Agudat Yisrael and Bayit Yehudi—that make up Benjamin Netanyahu’s coalition government. (Calls and emails to the Yisrael Beiteinu Jerusalem headquarters went unanswered.)

Israel may be a modern democracy, but its marriage laws are moored to 19th-century empire—Ottoman, to be exact. The decision to grant the Israeli rabbinate complete control over Jewish matrimony derives from the Turkish millet system in which each confessional community—Jewish, Christian, or Muslim—was unilaterally in charge of its own population’s marriage laws. This system was kept in place under British Mandate Palestine, which, operating under the assumption that monotheistic groups are best left to govern themselves, refused to recognize marriages conducted outside of these communities (excluding consular marriages for colonial officials, and civil divorces obtained in other countries).

Once Israel was founded, the law swung between insularity and inclusiveness. After the founding of the state, David Ben-Gurion, who did not want to alienate religious Jews eager to make aliyah, entered into the so-called status quo agreement, whereby confessional communities would continue to oversee the process of marriage registration. Membership in the Jewish community was determined by the “Knesset Israel” courts until 1953, when rabbinical courts assumed full jurisdiction over this and other arcane questions of Jewishness. The rabbis hewed to an Orthodox interpretation of halacha—according to which one needs to have been born to a Jewish mother or to have undergone an accepted Orthodox conversion—in deciding who is and is not “Jewish,” and thus fit for Israeli matrimony. Two Supreme Court cases liberalized the nuptial code somewhat: in 1951, the Court decided that marriages that took place outside of Israel and were conducted by a rabbinical court—with proven halachic legitimacy—should be recognized. And in 1961, it ruled that the Ministry of the Interior must register married couples who were joined in civil unions outside of Israel, regardless of whether one or both of the partners were Israeli citizens.

Unmarried cohabitating couples are granted certain tax, insurance, and inheritance benefits under the Israeli version of common-law marriage—known as rishum hazugiyut—but their unions, and the families that derive from them, are not formally recognized by the state. (In 2007, the Olmert government even passed a law that created a separate category of gentiles; these indisputable non-Jews were now allowed to marry each other in Israel, provided they didn’t try to marry Jews.) As a result, atheists, secular Jews, Reform Jews, and Jews who refuse to undergo Orthodox conversion rituals must travel outside Israel to a civil ceremony that will then be recognized by the Israeli government. Cyprus is the most popular destination given the proximity and lower cost of the proceedings.

Even Jews may be forbidden from marrying other Jews with higher pedigrees, if the rabbinate so decrees. Consider the case of Irina Plotkinov, an immigrant from the former Soviet Union, who in 2005 was deemed Jewish by the same rabbinical court that also said she could not lawfully marry the man she fell in love with: native Israeli Shmuel Cohen. While the court determined Plotkinov was indeed Jewish and single, it prohibited her from marrying a kohen, or a man considered by Jewish custom to be a descendant of Aaron and the priests of the First Temple.

Some American converts to Orthodox Judaism have trouble navigating the caprices of the Israeli rabbinate, too. Avraham Elhiany, the son of a Jewish father and non-Jewish mother, underwent an Orthodox conversion in Metairie, Louisiana. He then met and fell for an Israeli woman and scheduled a lavish wedding ceremony in her hometown of Ma’alot. But when the pair presented themselves to the town’s rabbi, they were told that his conversion was not legitimate. According to San Francisco’s J Weekly, which first reported the story, the rabbi’s complaint was that Elhiany’s conversion certificate was handwritten instead of typed (and never mind that a typewriter with Hebrew typesetting was unavailable in Metairie); that it was also signed by three rabbis in the town’s Orthodox Congregation Beth Israel meant little in terms of state recognition.

Adding to the confusion are countervailing definitions of what it means to be “Jewish” under Israeli citizenship laws. In 1970, Prime Minister Golda Meir and her Justice Minister Yaakov Shimshon Shapira acceded to mounting Orthodox pressures to stipulate that while the Israeli Law of Return would still apply to a person who only had one Jewish parent or grandparent, and to that person’s spouse, the civil definition of a Jew would be narrowly defined as “someone who was born to a Jewish mother, or who converted and is not a member of another religion.” This created a kind of limbo realm within the greater Zionist project: technically speaking, a Diaspora Jew may make aliyah and live the rest of his life as a full citizen in Israel, but not be able to obtain a marriage license.

According to Rabbi Seth Farber, head of the Jerusalem-based Jewish-Life Information Center, which helps recent and would-be converts navigate the country’s conversion laws, this seeming contradiction is actually rooted in the fact that the Jewish state was founded not just as a bulwark against anti-Semitism, but as a check on assimilation. “In the infancy of the state, the marriage issue never really came up,” Farber says. “Pretty much everybody identified with the Jewish religious community. But in an era in which the rabbinate refuses to certify plenty of well-meaning and observant Jews as eligible for marriage, it ought to take the lead in creating a civil alternative for people.” The rabbinate, Farber explains, understands that it has a mounting social problem on its hands but worries that by lowering its criteria, it will inch ever closer to the legitimization of intermarriage in Israel. Nevertheless, Farber argues, “the threshold for proving one’s Jewishness in this country will come down the moment there is a civil marriage alternative. The rabbinate will want to stay relevant, and it’ll have to adapt.” Changing internal demographics might accelerate that adaptation. If Arab Israelis outnumber Jewish Israelis in the coming decades, as forecasts suggests they will, then the state should want to do everything it can to encourage sanctioned marriages, even at the expense of defining down eligibility—and Jewishness.

To get a sense of how at odds Israel is with itself on this question, one need only look at one of the lesser-studied clauses of Netanyahu’s coalition government agreement. As reported by Rabbi Farber in a Hebrew-language article for Haaretz, the current administration mandates that any future civil union bill that is passed will still grant full authority to the Chief Rabbinate to determine who is not Jewish enough for a religious marriage and therefore eligible for a civil union. In this Kafkaesque scenario, a person turned away by a rabbi for not being Jewish enough may then be turned away again for not being able to prove it.

“You’re not going to get the Haredim to say, yes, civil marriage is okay,” says Shmarya Rosenberg, the proprietor of the Failed Messiah blog, which monitors the American and Israeli Orthodox community. He adds that the entire Israeli electoral system—the entire nation votes as a whole for a party list, not as constituents from separate districts for individual candidates—would have to be overhauled in order to reduce the power of the Orthodox parties and their mainstream allies, like Netanyahu’s Likud.

So will things change? While these conditions are no doubt unpleasant for people who can’t legally say “I do,” yet may not be able to afford overseas nuptials, they are not dire yet enough warrant substantive reform. “If you’re Jewish and you were married five years ago, you have not confronted the problem that exists today,” Rosenberg says. “The problem is much worse for anyone who isn’t Orthodox. As the Haredi strength grows and their control grows, that’ll become clearer.” Rosenberg adds that because an influential party like Shas is founded as much on Sephardic pride as it is on Orthodox religiosity, there’s an added ethnic component to this debate, which complicates it further. “Lots of non-religious voters vote for Shas, and while they may be for civil unions in theory, there’s enormous social pressure to practically oppose civil unions in opinion polls and at the ballot box.”