With the issues of Kotel, rabbinic “blacklists” and conversion dominating the news, why should American Jews take time to protest Israel’s stringent marriage laws? Should we care, or is this problem better ignored, consistent with Diaspora loyalty to the Jewish State?

The answer is that we should care deeply even as we support the state. Religious pluralism is a cause that can unite Israeli and American Jewry – but only if we support each other. We cannot expect non-Orthodox Israelis to warm to our concerns for pluralism at the Kotel if we remain deaf to the unpopular stranglehold the Rabbinate has on marriage and divorce in the Jewish State. We have to recognize the unity of pluralism, e pluribus unum, as stated in the American national motto and help each other achieve unity in diversity.   

Religious pluralism is a cause that can unite Israeli and American Jewry – but only if we support each other.

There is no civil marriage and divorce in Israel. In that regard, Israel differs from all Western democracies. The Orthodox Chief Rabbinate’s undemocratic hold on marriage denies many Israelis the basic right to marry. Further, the majority of the Israeli public supports marriage equality. Advocacy on this issue is thus not an imposition of Diaspora values. In fact, it will help us make common cause with those Israeli citizens who yearn for the freedom to marry as they choose, just as we in America yearn for the freedom to worship at the Kotel. All Jews have a stake. 

Under a 1953 law, Israel committed marriage and divorce to the Orthodox Rabbinate. Later declarations of rights in Israel’s 1992 Basic Laws of Human Dignity and Liberty grandfathered this law. All the other ringing assertions of human dignity and equality accepted by Israel, from 1948 on, preserved the sole jurisdiction of the Israeli Orthodox Rabbinate to decide when and whether Jews can marry.

The Orthodox Chief Rabbinate’s undemocratic hold on marriage denies many Israelis the basic right to marry… Advocacy on this issue is thus not an imposition of Diaspora values.

The lack of civil marriage and divorce in a modern state is difficult to comprehend. In all other respects, Israeli civil law respecting equality of the sexes is up to date. It includes provisions for child support, property division, equality before the courts, service in the military, and equality of economic and educational opportunity. These laws exemplify human dignity and democracy, which reflect Israel’s societal ethos.  

However, when it comes to marriage, halakha is imposed on the entire society. People are bound by a web of legal traditions that do not square with a democratic way of life. Israel’s rabbinic authorities cite rulings by Maimonides from the 12th Century, the Maharashdam in the 16th century, and the Maharik in the 17th century. As Justice Oliver Wendell Holmes once remarked, it is revolting to have no better reason for a law than that it was laid down in the time of Henry the Fourth. Modern Israel’s circumstance, with its secular Jews and emigrants from Russia, and its dynamic mix of approaches to Judaism, is irrelevant to the religious judges. The teaching of Justice Benjamin Nathan Cardozo, the most revered American Jewish common law judge, that courts should consider the social needs of their times does not guide many Orthodox rabbinic court decisions.

Modern Israel’s circumstance, with its secular Jews and emigrants from Russia, and its dynamic mix of approaches to Judaism, is irrelevant to the religious judges.

This lack of responsiveness has tragic consequences. It disqualifies many hundreds of thousands of Israelis from marrying in Israel. To become a citizen under the Law of Return one need have only one Jewish grandparent. In contrast, the rabbinate requires that we have Jewish mothers or be Orthodox Jewish converts, leaving out a growing population of hundreds of thousands who came to Israel according to the Law of Return. Imagine coming to the Jewish state, fleeing Soviet oppression, only to be told that Israel will not allow you to marry unless you undergo conversion and maintain Orthodox religious observance.   

Then there are the agunot. These women’s husbands refuse to give them Jewish divorces, called a get. They cannot remarry or bear halakhically legitimate children, although their estranged husbands can cohabit and have legitimate children. Likewise, forget about same-sex marriages. The special restrictions on marriages of Kohanim – no marrying divorcees, converts, etc. – just add to the list. All told, about 660,00 Israelis cannot marry.

All told, about 660,00 Israelis cannot marry.

Even marriages not forbidden may be difficult. If one party is a convert, the Rabbinate may investigate whether the conversion and the converting rabbi were “kosher.” Consider the case of Ivanka Trump, a Jewishly committed Orthodox convert. So, isn’t she Jewish? Yet another woman converted by the same leading Modern Orthodox American rabbi, Rabbi Haskel Lookstein, was required to undergo a second conversion before marrying in Israel, because the Israeli Rabbinic Court and the Rabbinic Court of Appeal did not recognize her rabbi’s conversions. Further, even Jewish-by-birth couples may face obstacles if they cannot find their parents’ ketubot (wedding contracts).  

We should take up the cause of marriage equality as our own. Imagine telling a Protestant that marriages must be sanctioned by an Episcopal priest. Imagine a secular American couple being told that only particular, religious male officials could perform their wedding. Further, the situation affronts our dignity as Jews. Our rabbis in Israel – Liberal, Progressive, Reform, Reconstructionist, Conservative, and even modern Orthodox – are ciphers when it comes to marriage. Marriages conducted by them in Israel are legal nullities. While in fairness, Israel grants substantial rights to cohabitants, the same drive for dignity that impelled same-sex and interracial couples to seek the right to marry in the U.S, drives families like ours in Israel.  

We who are independent of the official Rabbinate must advocate for ourselves and our brethren in Israel.

The Israeli Rabbinate recently made attempts to assert jurisdiction over non-citizens, detaining male tourists from other countries until they divorced their wives. If jurisdiction over foreign marriages is given to the Israeli Rabbinate, how could couples married by Reform rabbis feel comfortable making aliyah? The Rabbinate could challenge such marriages or require that couples obtain orthodox divorces. What of the Jewish status of children if parents get divorced without Orthodox gets, and divorcees remarry?

We who are independent of the official Rabbinate must advocate for ourselves and our brethren in Israel. We have spoken out on the issues of conversion and who is a Jew in Israel. We have been heard. We should speak out equally strongly on the affront to human freedom and dignity to our Israeli peers and to ourselves which results from Orthodox hegemony over marriage.

The time to raise our voices is now. We need to support the cause of marriage equality in Israel.

Honorable Peter A. Buchsbaum, J.S.C., Ret., is counsel to the Flemington, NJ firm of Lanza and Lanza, L.L.P., doing affordable housing court master work. He has spent his career becoming a well known expert in the laws of zoning and land use, and has written extensively on the topic for many legal institutions, including the American Bar Association. He has been named to the North American Advisory Board of the World Union for Progressive Judaism. This article was prepared while he was working as a volunteer for Hiddush, a civil rights advocacy non-profit based in Jerusalem.

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