Halakha and State: An Exchange

Entanglement

by David Ellenson

Rabbi Elli Fischer’s article “Why I Defy the Israeli Chief Rabbinate” (Winter 2016) provides us not only with an erudite and concise discussion of the Israeli Chief Rabbinate and the problematic ways in which it exercises its power, but with evidence of its author’s courage. I applaud Fischer for daring to officiate at marriages not sanctioned by the Chief Rabbinate, and admire the skill with which he deploys talmudic knowledge in arguing for curtailing the power of this institution.

Fischer writes as an Orthodox rabbi completely committed to halakha. I write as a Reform rabbi who has great admiration for Jewish law but does not share his absolute commitment to it. In fact, I had the opportunity to conduct a wedding in Israel last year outside the strictures of halakha. The bride was a young woman who had completed a two-year state-sanctioned Orthodox course of study and converted to Judaism in Israel. She then fell in love with a secular Israeli. While her halakhic status as a Jew was not in doubt, she was prohibited from marrying the groom because he was of priestly lineage, and, as a kohen, he was forbidden by traditional Jewish law from marrying a female convert (giyoret).

This prohibition is based on two biblical passages: Leviticus 21:7, which says that a kohen may not marry a “harlot,” and Ezekiel 44:22, which holds that a priest must marry “only a virgin.” A talmudic passage (Yevamot 61b) casts aspersions on the sexual morality of the Gentile nations and asserts that all Gentile women are presumed to fall under the legal category of“harlot.” Rabbinic law therefore defines every female convert as a “harlot.” Consequently, Maimonides, in Hilchot Issurei Bi’ah (Laws of Forbidden Intercourse) 18:1, and the other classic halakhic authorities forbid a kohen from marrying a giyoret. Since the only legal Jewish marriages in Israel are Orthodox ones, the couple in question turned to me.

I personally find the entire halakhic category that defines a female proselyte as a “harlot” morally objectionable, insulting, and obsolete. I was happy and proud to perform the wedding and sorry only that in the State of Israel it had no legal force. I wonder whether Fischer would apply his drasha on the Talmud’s discussion of the Sanhedrin’s self-imposed exile (Avoda Zara 8b) to such cases.

Fischer briefly mentions Chief Rabbi Goren’s famous decision in 1972 removing the halakhic stigma of mamzeirut (illegitimacy) from two young soldiers, Hanokh and Miriam Langer, thereby enabling them to marry other Jews. To achieve this result, Goren had to invalidate their mother’s first marriage in Poland to Abraham Borokovsky, a convert who was thought to have died in the Holocaust before turning up in Israel in the 1950s. Goren was under tremendous pressure to do so. Golda Meir threatened to resign as prime minister if a solution permitting the Langers to marry could not be found. A bill was even introduced into the Knesset to establish civil marriage in Israel, which would have allowed them to marry without rabbinic sanction.

Goren professed grave concern for Hanokh and Miriam and lamented “the bitterness of their fate.” He was also, no doubt, fearful of a loss of power on the part of the Israeli Orthodox rabbinic establishment. He convened a secret rabbinic court, whose members are unknown to this day, that retroactively annulled Borokovsky’s conversion, partly on the grounds that he was not an observant Jew. Since Mrs. Langer’s original marriage had been to a “Gentile,” someone to whom she could not be halakhically married at all, her second marriage was no longer defined as “adulterous,” and her children were no longer unmarriagable mamzeirim.

Rabbi Goren’s compassion and the “solution” he found earned him the approbation of the secular Israeli public. In the joy of the moment, it was overlooked that the chief rabbi of Israel had set a virtually unprecedented standard for conversion. If a convert’s Jewishness could be revoked on account of his failure to fully observe Jewish law after his conversion, almost no conversion could ever be defined as fully irreversible. One need only look at the relatively recent ruling Rabbi Sherman issued concerning the illegality of conversions conducted under the authority of Rabbi Haim Druckman to have a sense of the Pandora’s box Goren’s decision opened.

I have no problem with those who wish to defend and live by traditional halakhic categories such as the prohibition against a kohen marrying a giyoret or the prohibition against a mamzer marrying almost any other Jew. That is their choice, and despite my feelings that such laws run completely counter to what my late teacher and colleague Israeli Reform Rabbi Moshe Zemer of Tel Aviv labelled a “sane and humane halakha,” it is the right of those who wish to abide by such strictures to do so. I resent bitterly, however, the fact that the State of Israel favors Orthodox interpretations of Jewish law and their rulings over mine and those of other rabbis of different movements that are equally legitimate. What is worst of all is that it also enforces them through the power of the state.

The entanglement of Jewish law with politics in the Jewish state has, as Fischer argues, resulted in a coercive, bloated Rabbanut whose excesses and power over matters of personal status and sometimes even kashrut are resented by an overwhelming majority of Jews in both Israel and the diaspora. Chief rabbis such as Kook, Herzog, Uziel, and Unterman were, and remain, great figures. Today’s Rabbanut, however, is a stain upon the State of Israel and an impediment to the unity of the Jewish people.

In my opinion, Fischer’s semi-disestablishment- arian solution does not go far enough, since he still seems to envision state-sanctioned Orthodox rabbis making decisions about the lives of non-Orthodox Israelis, but it would be a start. Unfortunately, I have no hope that there will be any significant change given the current political forces in the Knesset that are arrayed against it.

David Ellenson is currently director of the Schusterman Center for Israel Studies at Brandeis University. He served as president of Hebrew Union College-Jewish Institute of Religion from 2000 to 2013.

Experiencing the Rabbanut

by Netty C. Gross-Horowitz

Rabbi Elli Fischer, a Modern Orthodox rabbi, should be applauded for his brave efforts to make Israel more pluralistic. Like many Israelis, however, he seems to get one fact muddled: Even if a heterosexual Israeli Jewish couple has a civil marriage in Cyprus, for example, and doesn’t bother to register the marriage, they still will need a halakhic get to be divorced in Israel and thus are still under the jurisdiction of the Rabbanut. I have interviewed one such woman and undoubtedly there are more. In fact, halakhic divorce following a civil marriage has been a long-debated subject.

Fischer cogently reviews pivotal moments in the Rabbanut’s climb to power and its entanglement with the State of Israel, and he shows many, though by no means all, of the ways in which things have gone wrong, analyzes why it has soured, and why he no longer supports it. In the 15 years that I have covered this issue, chiefly with regard to marriage and divorce, some things have changed for the better. The Rabbanut, for example, no longer publicly posts the offenses of the divorcing parties. (It was on a wall of Rabbanut postings that I first saw the word moredet, “rebellious woman.”) However, when I went through my own divorce in 2009, I realized how little had really changed. The Jerusalem office was dilapidated and scruffy. I was judged (and that is how it felt) by three elderly men in black caftans, one of whom slept through the proceedings. Although I do not generally cover my hair, my lawyer insisted I wear a head covering. A man who looked like a shames (beadle) from the Old Country ran up and down the halls screaming out names. A sense of chaos reigned. I felt like I was in Poland in the 19^th century or my father’s shtiebel. And since my get did not come easily, I was there often. If there is something missing from Fischer’s analysis, it is an explicit appreciation for what such experiences mean to the women who undergo them. Divorcing Israeli Jews (those with vengeful or recalcitrant spouses) have had to accede to extraordinary demands to obtain a get. In another context the demands could be called extortion. The aggrieved, for example, have been asked to agree to uneven divisions of marital assets or give in to outrageous custodial arrangements. If they don’t, they are told they are “chaining themselves.”

Here is where Fischer is indubitably, deeply correct: It’s not that the individual religious court judges are necessarily any worse than those in the civil courts, it’s the system that is sick. As Fischer largely argues, rabbinic power belongs in civil society, exercised in the communities that accept it. I say “largely,” because it is not quite clear to me how far Fischer wants to go in disempowering the Rabbanut. It seems clear to me that there has to be a normal civil marriage option in Israel alongside a religious one (as there is in every Catholic country save the Philippines), as well as a quick way to end halakhic marriages that have gone awry.

Meanwhile, couples who are secular, gay, or simply not Orthodox are increasingly choosing to cement their unions through lawyers or jointly held mortgages, while having non-Orthodox ceremonies to allow their families and friends to dress up, dance, and celebrate at a Jewish wedding. And there is always Cyprus. If this continues, will the Rabbanut become so irrelevant that it eventually withers away? Perhaps. Then again, Fischer and I are, quite possibly, mere dreamers. The ultra-Orthodox who now control the Rabbanut are exceedingly unlikely to, in Fischer’s terms, “go into exile” voluntarily, and they are too politically strong to be forced into doing so anytime in the foreseeable future.

Netty C. Gross-Horowitz is, with Susan M. Weiss, the author of Marriage and Divorce in the Jewish State: Israel’s Civil War (Brandeis University Press).

A Historical Anomaly

by Alexander Kaye

Supporters of the Chief Rabbinate often claim that its monopoly on marriage is all that stands in the way of the dissolution of the Jewish people into factions that will not marry each other. But a dubious, arguably failed attempt at social engineering is a weak justification for restricting religious freedom. A separation of religion and state on the American model is not appropriate for Israel. But it should be noted that several European states, which have a mild establishment of religion while fully allowing for free expression, offer viable paradigms.

Those apprehensive about the weakening or even abolition of the Chief Rabbinate might do well to look closely at its history. Rabbi Fischer describes being called a maverick who is challenging a long-established fixture of Jewish life. The irony is that the current structure of the Chief Rabbinate, despite its ostensible religious conservatism, is in fact a relatively recent innovation whose impetus came from British imperial rule. In fact, the Israeli Chief Rabbinate has no real precedent in Jewish history.

It is true that under the Ottomans religious communities governed themselves in matters of personal law. But neither the Hakham Bashi under Ottoman rule—nor, for that matter, the chief rabbis of other Jewish communities—ever held the functions or the power of the Chief Rabbinate, which was established, at the insistence of the British, in 1921. The British desire for a Chief Rabbinate was part of the usual practice of colonial rule. The British had neither the desire nor the capacity to rule their colonial subjects by English law. Typically, the various communities under British control governed themselves by their own rules. The British did require, however, that these rules conform to what the British considered to be proper legal procedure. They needed to have an appeals process, a formal procedure for registering judges, published statutes, and so on.

British rule in Palestine was no different. The British pushed for the establishment of the Chief Rabbinate in Palestine, so that legal authority, which had previously been a local or regional affair, was re-ordered into a single hierarchy. It was also under British pressure that a formal registry of rabbis in Palestine was drawn up for the first time and that the rabbinical court in Jerusalem became a halakhic court of appeal, an institution that has almost no precedent in halakha. This centralization of rabbinical authority met with fierce resistance from non-Jerusalem rabbis at the time and was only grudgingly accepted over a period of decades. Other aspects of the authority of the Chief Rabbinate are newer still. In its early years, the Chief Rabbinate had jurisdiction only over Jewish minors or adults who had voluntarily joined the officially recognized Jewish community. Only in 1953 was its jurisdiction extended over all Jews, whether they recognized the Chief Rabbinate or not.

To be sure, many rabbis saw religious meaning in these developments. At the founding of the Chief Rabbinate, Rabbi Abraham Isaac Kook spoke about it as a step on the road to redemption. And Fischer is right to observe that many Religious Zionists today see the Chief Rabbinate as an institution, which, whatever its shortcomings, is a powerful symbol of their particular vision of a Jewish state.

History cannot tell us what to do. Nonetheless, there is surely significance in the fact that the Chief Rabbinate in its current form is a recent innovation in Jewish law and an anomaly in Jewish history. Moreover, in its inefficiencies, corruption, and disregard for the rights of religious freedom, the Chief Rabbinate has done tremendous damage to the reputation of traditional Judaism. Although Fischer points to some of the many difficulties that reform of this institution would entail, it seems to me that the onus of justification ought to lie with those who want to retain the system in anything like its present form.

Alexander Kaye is an assistant professor of history and the Saul and Sonia Schottenstein Chair in Israel Studies Designate at The Ohio State University. He is currently writing a book about the political and legal theory of Religious Zionism.

The Religion-State Interface

by Kalman Neuman

Those unfamiliar with Israeli reality sometimes imagine the Chief Rabbinate to be at the apex of a hierarchical curia-type system sending its tentacles into all aspects of Israeli life. This is far from being the case. The Chief Rabbinate is one piece of the complex fashion in which the relationship between religion and state in Israel is structured (if that is the word). Therefore, the issue is not “is the Chief Rabbinate good for the Jews?” but rather how the different points on the religion-state interface should be handled.

In fact, neither the law of the State of Israel, the Israeli public, nor even the Orthodox community regard the chief rabbis as the ultimate religious authorities. Only a small minority within the Religious Zionist community regard the institution as a sign of the spiritual renewal of the Jewish people. Nowhere is this more vividly illustrated than in the story of Yona Metzger, who was Ashkenazi chief rabbi from 2003 to 2013. Metzger is presently awaiting trial for bribery, money laundering, and other offenses, but, as far as I can tell, this has caused no disillusionment in the Israeli religious community. Metzger has long been written off as an insignificant figure, elected (for reasons too complex to explain here) precisely because of his lack of stature, even if his corruption was not yet public knowledge.

The official Rabbanut makes no pretense that halakha governs the Jewish state. Indeed the Rabbanut has no control of many aspects of religion itself in Israel. For example, funding of religious institutions is in the hands of the Ministry for Religious Affairs, the question of public Shabbat observance is generally an issue of local legislation and enforcement, while local rabbinates certify kashrut within their jurisdiction without requiring the approval of the central authority. Even the rabbinical courts are not formally subject to the authority of the Chief Rabbinate, except for the accreditation of potential rabbinical judges (who do not necessarily have to accept its halakhic directives). Of course, if the chief rabbi were a combination of Shlomo Zalman Auerbach, Jonathan Sacks, and Nechama Leibowitz (with perhaps a touch of Pope Francis thrown in), his influence would be considerable. In the meantime, the spiritual leadership of the incumbents has recently been limited to attempts to oust Shlomo Riskin, a rabbinic leader respected across the Jewish world from his position as the rabbi of Efrat, and to denigrate the Minister for Diaspora Affairs for visiting a non-Orthodox American day school. The chief rabbis, meanwhile, took no part in the discussions leading to the recent compromise regarding non-Orthodox prayer at a site at or near the Western Wall.

Those who wish that Israel would adopt a separation of religion and state according to the American (or French) model have no need for a state-accredited rabbinate. Although his rhetoric sometimes suggests it, Fischer is not really suggesting such a strict separation of religion and state for Israel. Undoubtedly, the greatest intrusion of religion on the life of the average Israeli is the one Fischer focuses upon: the law stipulating that marriages and divorces between Jews be recognized only if they are performed in accordance with halakha. Any such law presupposes a central halakhic authority. If Israel were to recognize only civil marriages the Rabbanut would, of course, be rendered superfluous, but, short of that, things get complicated.

One can get a sense of what is at stake even in Fischer’s own current practice. Fischer (commendably in my opinion) requires the couples he marries to have a civil marriage outside of Israel so that they will be recognized by Israeli law as married. But Jews who are registered as married can only get divorced through the rabbinical court system, which may—or may not—demand that the couple undergo a halakhic divorce with all the difficulties that may entail. Fischer’s act of civil disobedience may have given the newlyweds a marriage ceremony without state interference, but it has not succeeded in freeing the newlyweds from the jurisdiction of the Rabbanut. Indeed, any proposal to reform the present system that recognizes halakhic marriage and requires halakhic divorce in the case of such a marriage would have to establish a qualified institution to determine and regulate halakhic status.

The various grand proposals since 1948 to replace the ill-named religion-state “status quo” with a more coherent arrangement have never gained political traction. When there have been changes, they have always begun informally, “on the ground,” as sociologist Guy Ben-Porat points out in his book Between State and Synagogue: The Secularization of Contemporary Israel. In this respect Rabbi Fischer’s actions may have more effect than his words.

Proposals to redefine the status of Judaism in Israel from the top down may be principled and well-intentioned, but it’s hard to see them going anywhere. Even changes regarding which there is wide consensus (such as eliminating the blanket exemption of haredim from an educational curriculum that includes high school math and English and then from army service) have proven impossible to implement. There may be piecemeal reform—Tzohar’s wedding program has, in fact, been a great success, making a difference in many ordinary Israelis’ lives—but more than that is extremely unlikely. (It is, by the way, somewhat imprecise to lay responsibility for the draconian provision of the “Tzohar law,” which could, theoretically, place both Fischer and the couples he marries in prison, on the organization for which the law was named. As he no doubt knows, it was slipped in at the last minute of the legislative process by Deputy Minister of Religious Affairs Eli Ben-Dahan.)

The Chief Rabbinate has become (among other things) a source of haredi power and patronage. As long as Israeli politics is polarized and haredi parties control a significant bloc in the Knesset, the major parties will have every reason to court their support. This means that fundamental reform will probably have to wait until the Israeli table has been cleared of more pressing issues, like determining the borders of the country.

Rabbi Kalman Neuman teaches at the Herzog College in Gush Etzion and holds a PhD in the history of early modern political thought from The Hebrew University.

Semi-disestablishmentarianism: A Defense

by Elli Fischer

As Rabbi Dr. Kalman Neuman noted, much has been written about what the “religion-state interface” ought to look like. The problems with the Rabbanut—here, as in the initial article, I use the term as a proxy for all state-empowered Jewish religious bodies—are well known, not least among religious Israelis. Many solutions have been proposed that seek to implement, whether wholesale or piecemeal, systems similar to those that exist in Western European countries. Yet, due to the realities of Israel’s coalition politics, very little has changed, and, as the respondents note, pessimism is warranted.

Virtually all current attempts to fundamentally alter the religion-state interface reinforce the politicization of religion. Assertions that the Rabbanut is increasingly haredi, an Orthodox monopoly, or applies unprecedentedly stringent conversion standards may or may not be true, but each charge accepts an “us versus them” dichotomy that perpetuates the problem. In Israel, organizations active in the fight for religious freedom are all associated with the political left, whereas religious Israeli Jews overwhelmingly identify with the right. Thus, attempts to make changes by mobilizing anti-Rabbanut sentiment are viewed with suspicion and deemed anti-religious, often with good reason.

Yet, to my knowledge, there has not been any attempt to explore and nurture alternatives from within a surprisingly heterogeneous Jewish political tradition. For instance, religious separatism and secessionism are in the DNA of Ashkenazi haredi movements, which arose in 19^th-century Germany and Austria-Hungary. Consider this statement by Rabbi Samson Raphael Hirsch, the champion of German neo-Orthodoxy:

By what right and under what law should I therefore be compelled to make financial contributions to a community . . . whose principles and objectives are diametrically opposed to my own? By what right and under what law can such outrageous religious coercion be practiced under the banner of “freedom of religion”?

And consider this statement by Rabbi Eliezer Melamed, one of today’s most influential among Religious Zionist rabbis, in favor of alternatives to marriage through the Rabbanut:

Some may claim that there is a religious duty to oppose and interfere with any type of relationship that fails to abide by halakha . . . [S]uch an obligation existed when there was full public consensus favoring such a lifestyle, . . . [b]ut in a situation like ours, the principle of freedom prevails . . .

Yet not a single organization working for greater religious freedom in Israel has attempted to emphasize these strains of Orthodox thought or to contact Rabbi Melamed to discuss his views, because religious communities, as a whole, are perceived as the “them” that must be opposed. I believe that there is potential for a change in thinking about religion and state within religious communities based wholly on widely respected sources. My example from the Talmud is but one small part of the ideological and theological work that must be done before political gains can be made.

I understand Rabbi Ellenson’s resentment that “the State of Israel favors Orthodox interpretations of Jewish law and their rulings.” This is indeed a fraught issue. I try to avoid using the term “Orthodox” with regard to Israel and the Rabbanut because Israelis, religious and secular alike, tend to acknowledge a spectrum of religious observance without thinking in terms of distinct religious denominations. They identify what Americans would call “Orthodox” Judaism as simply “religious” (“dati”) Judaism. Since my primary objective is the elimination of coercive aspects of state religion, I am willing to live with an “Orthodox” Rabbanut that has no coercive power unless someone opts in, allowing those who opt out to practice freely. In such a scenario, non-Orthodox rabbis and movements are likely to be acknowledged de facto. However, it is surpassingly unlikely that the Reform movement will ever be given a status equal to that of “Orthodoxy,” unless, that is, a million American Reform Jews make aliyah. I realize that this may not satisfy anti-establishment Madisonians, but Lockean toleration is no mere halfway measure.

Both Neuman and Netty C. Gross-Horowitz correctly note that couples who are married civilly abroad or in a non-Rabbanut halakhic wedding in Israel must divorce through the state rabbinical court system. As such, marrying outside the Rabbanut is largely an act of protest. Nevertheless, some couples are marrying halakhically and registering as common-law spouses. The contracts that outline the financial arrangements of the marriage include clauses that require the couple to arrange a halakhic divorce (with an independent rabbinical court) in the event that the marriage fails—similar to the mechanism used in the Beth Din of America’s prenuptial agreement. The jurisdiction of state rabbinical courts over such cases has not yet been tested in Israeli courts.

It should be noted that, of all the areas of entanglement between religion and state in Israel, divorce is the hardest to resolve. The specter of proliferating mamzeirut favors continued rabbinic control, but, as Gross-Horowitz’s brief reminiscence suggests, the pain caused by the state rabbinical divorce courts is simply enormous. The Gavison-Medan pact found no way out of this dilemma, placing all marriage under a civil regime but leaving divorce under the Rabbanut.

Alexander Kaye argues that the Rabbanut should be abolished and that fears of what might happen as a result of its rapid dissolution are overstated. I agree with him that certain fears are, in fact, warranted here specifically, and I am generally apprehensive about rapid change. I also believe that he (like Neuman) underestimates the degree to which Israelis have internalized the entanglement of state and religion, even if they express displeasure with the Rabbanut. More importantly, Kaye’s caution that history is not prescriptive cuts both ways. The Rabbanut may be an anomaly (though it evolved from institutions that predate the British Mandate and has evolved and grown considerably since), but the Jewish State is itself a historical anomaly, one that has never been without a Chief Rabbinate. Thus, while I understand the desire to burn the Rabbanut to the ground, I counsel prudence and invoke the law of unintended consequences.

I wish to thank all of the respondents for their considered words. Clearly the issues are broader than can be covered in an exchange like this—in fact, we have all written extensively on the subject elsewhere. Much remains to be said—and done.