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The Back Page with Pinhas Shifman: �It�s Religious Marriage That Creates Illegitimacy�
Gershom Gorenberg
In early June, former chief rabbi Eliahu Bakshi-Doron stunned a rabbinic conclave and the public by declaring that he favors ending the Orthodox state rabbinate�s sole jurisdiction over Jewish marriage and divorce in Israel. While Bakshi-Doron adopted a position associated with secular activists and Israel�s small Reform and Conservative movements, he gave halakhic arguments for challenging a key prerogative of the rabbinate he had headed for a decade.
In fact, those arguments had already been laid out by Pinhas Shifman, a religiously observant professor of family law at Hebrew University, whose book, "Who�s Afraid of Civil Marriage?" appeared in Hebrew in 1995. Speaking to The Jerusalem Report, Shifman explained the religious rationale for ending the rabbinate�s monopoly on marriage.
What�s the logic for a religious person to back civil marriage?
Undoubtedly, Bakshi-Doron began with an insight based on reality, which teaches that clear religious interests are suffering.
First, many people may have a religious wedding, but don�t accept the religious assumptions underlying that ceremony. The sanctity imputed to marriage is alien to them, and they therefore don�t attribute particular importance to fidelity and unfaithfulness, creating the problem of mamzerut [the status of children born as a result of adulterous relationships, who according to religious law may only marry other mamzerim].
I�m not asserting that secular people are all unfaithful. But even someone who values fidelity may [start a new relationship before receiving a get]. Yet from a halakhic view, until there�s a religious divorce, the woman is married, and her children by another man are mamzerim. That�s not even to speak of the phenomenon of permissiveness. As a result, precisely by imposing Jewish law on people, you cause its desecration.
Secondly -- this is a point raised by Rabbi Haim David Halevy, who was the Sephardi chief rabbi of Tel Aviv -- it�s actually having [exclusively] religious marriage that is creating a time bomb of people forbidden to marry under Jewish law. Without religious marriage, you don�t get a problem of people who are forbidden to marry -- agunot [women whose husbands have vanished or who refuse to grant them divorces] or mamzerim. Under Jewish law, marriage creates illegitimacy. A child of an unmarried woman isn�t illegitimate. A mamzer is a product of marriage.
The third issue is that religious marriage and divorce are seen as religious coercion, and alienate people from religion.
If I understand correctly, [Rabbi Bakshi-Doron] accepted my thesis that defending the existing [Orthodox monopoly on marriage] means harming religious interests for the sake of national interests.
So what are the �national� arguments against separating the religious and civil aspects of marriage?
For many religious people, the rabbinate�s apparent monopoly on marriage is a symbol that allows them to identify with the state. Any change is seen as an attack on an important religious symbol and so as being anti-religious.
There are also [institutional] interests, beginning with religious parties. What�s the justification for a religious party? Religious education is not enough. If you depend on the issue of the Land of Israel [to justify the party�s existence], there are right-wing parties that aren�t religious. So they say, �We preserve the Jewish character of the state� -- as with the Marriage and Divorce Law.
And there are the interests of the religious court system, which provides a livelihood for judges, and rabbis, and the administration.
There are also concerns of the wider public. The state can�t explicitly say it�s against marrying non-Jews. It�s easier for it to use religious law for that purpose. �So we�re not guilty of racism, it�s religious law� -- but the state has embraced religious law. This reflects the ambivalence of the secular public toward mixed marriage. And if Israel were to allow mixed marriage, how could we complain about the Diaspora Jews?
And what of the argument that religious marriage preserves the unity of the Jewish people?
This argument says that civil marriage will increase [religious-secular polarization]. I think that�s correct. I just don�t think that�s reason enough to prevent civil marriage, which in a large degree already exists. There is civil marriage -- recognition of weddings in Cyprus, of common-law marriage...
If you allow civil marriage, doesn�t this threaten the monopoly of the rabbinate even over religious marriage?
It depends on the character of civil marriage. I think the American model is the right one. Anyone who wants to get married must receive a license, and he can go to a civil authority or to a cleric recognized by the state [to perform the ceremony] and the state can�t discriminate. It must recognize any rabbi with a community as appropriate. If, on the other hand, the state says, �We�re keeping the current situation, but someone who wants a civil marriage can go to a civil authority� -- an approach I don�t think is good -- you couldn�t get married by rabbis outside the rabbinate system.
I should add that, currently, a distinction gets lost between an internal religious problem and an external civil problem. The external problem is someone who says, �I don�t accept religious authority, the state imposes religious authority on me.� So people go to Cyprus.
The internal religious problem exists, not just in Israel, but wherever a Jewish community voluntarily accepts Jewish law and faces difficulties such as agunot and mamzerim.
In other countries, where the state doesn�t sanction religious marriage and divorce, the pressure to solve these problems comes from the religious community. Criticism of religious law is regarded as criticism, not an attack. Here, any criticism of the religious courts is seen as an attack coming from non-religious people. But the people hurt by the existing situation are the ones who are religious. The non-religious can find secular solutions.
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