(2012/5772)

Last week we introduced Rav Eliyahu Bakshi-Doron’s (former Sephardic chief rabbi of Israel) surprising endorsement of introducing civil marriage and divorce for Jewish citizens of the State of Israel. We reviewed the Halachic literature concerning civil marriages and concluded that almost all Poskim agree that while it is preferable for their to be a Get even if the couple married only civilly, the couple do not require a Get according to baseline Halacha. Thus, having tens of thousands of Jewish couples who married without the benefit of a religious ceremony perform a divorce without a Get does not create a disaster of Mamzeirut. The question remains, though, whether creating such an alternative track constitutes good Torah public policy.

Halacha and Public Policy

One may ask, where do we find a concept of Halacha articulating public policy? One source is a well-known passage in Sanhedrin 75a:

Rav Yehudah said in Rav's name: A man once developed a passion for a certain woman, and he was consumed by his burning desire [his life being endangered thereby]. When the doctors were consulted, they said, 'His only cure is that she shall submit.' The Chachamim responded: 'Let him die rather than that she should yield.' Then [said the doctors]; 'let her stand unclothed before him;' [they answered] 'sooner let him die'. 'Then', said the doctors, 'let her talk with him from behind a fence'. 'Let him die,' Chazal replied 'rather than she should chat with him from behind a fence.' Rav Yaakov ben Idi and Rav Shmuel ben Nachmani dispute the incident. One said that she was a married woman; the other that she was unmarried. Now, this is reasonable according to the view that she was a married woman, but if she was unmarried, why Chazal rule so severity? Rav Papa said: Because of the disgrace to her family. Rav Acha the son of Rav Ika said: That the daughters of Israel may not be immorally dissolute.

Strictly speaking, Halacha does not require a man to sacrifice his life in order to avoid speaking to a woman sitting behind a fence. However, had Chazal permitted such behavior in this case, it could have potentially led to a disaster. The floodgates of proper behavior would have been broken and improprieties could have occurred on a massive scale. Thus, Halacha requires martyrdom due to a public policy concern rather than technical Halacha (though one could argue that public policy is an integral component of Halacha). Regarding the option of civil marriage and divorce in Israel, while there may not be technical Halachic reasons to forbid it, one can argue as to the Halachic wisdom of such a policy.

Siddur Kiddushin for Non-Observant Jews – The American Debate: The Lubavitcher Rebbe vs. Rav Moshe Feinstein

During the early 1990s, as Jews from the Soviet Union emigrated in large numbers to the United States, there were rabbis affiliated with Lubavitch/Chabad who conducted Chuppot en masse for Jewish couples who did not have the opportunity to be married according to Jewish Law under communist oppression. Presumably, the Lubavitcher Rebbe felt this was prudent public policy as it serves to strengthen the couples’ Jewish identity and avoid their cohabitation being conducted outside the framework of marriage, which constitutes a Torah level violation (Devarim 24:1 and Rambam Hilchot Hilchot Ishut 1:4)

On the other hand, Rav Moshe Feinstein (Teshuvot Igrot Moshe Even HaEzer 4:59) does not agree. He writes, “It is better for a non-observant Jews not to be married in a Halachically valid ceremony, so that if they separate she will not have the status of an Eishet Ish (married woman). If she remarries without a Get she would be guilty of adultery which not only affects her, but also brings, according to Torah (Rashi to BeReishit 6:13), destruction to the world. Even worse, if she subsequently bears children from another Jewish man, her progeny for eternity will be Mamzeirim” (illegitimate).

Indeed, Rav David Cohen related (at a conference of Young Israel Rabbis) that when Rav Moshe served as a Rav in the early years of the Soviet Union he was confronted with the problem of youth who under Communist influence would marry without the benefit of a Torah ceremony. The observant parents would beg Rav Moshe to conduct a Chuppah (Jewish wedding ceremony) for their children who abandoned Torah belief and practice. Rav Moshe replied, relates Rav Cohen, that it is better for those youth to marry without a Chuppah. This way if the couple would separate, the horrific sin of adultery would not be violated, nor would the tragedy of Mamzeirim be created.

The poignancy of Rav Moshe’s approach was made clear to me in a tragic incident. A divorced couple had been convinced to participate in a Get a few years after they had civilly divorced. The wife arrived with her new “husband” (whom she obviously did not marry in a Halachic ceremony) and baby from him. I was hoping to discover that the couple’s marriage was not conducted under Orthodox auspices. This would allow for the possibility that the woman’s first marriage was invalid in the eyes of Halacha, thereby avoiding the child being classified as a Mamzeir (a child born out of wedlock is not a Mamzeir). I was terribly saddened when the woman told me that her first marriage had been conducted by an Orthodox rabbi.

There is tragic irony in that during the years this woman’s family had lived under viciously anti-religious communist rule, Mamzeirut had not been a problem since religious weddings were outlawed by the evil regime. Only after she moved to Brooklyn, one of the world’s great bastions of Torah life, did she create a Mamzeir due to her lack of awareness of the need to obtain a Get and the horrific consequences of not receiving one. This incident makes it painfully clear that there are some individuals who are better off without a Halachic marriage[1].

Rav Bakshi-Doron’s Arguments for Creating a Civil Marriage Option in Israel

Rav Bakshi-Doron argues that while Israel’s requirement that all marriages and divorces of Jewish residents of Israel be conducted under Orthodox auspices, made sense and worked well during the early years of the state, it is an idea and policy whose time has passed. He argues that it is sound public policy for Israel to offer the choice of civil marriage (and civil divorce for those who were married in the civil marriage track) to those Jews who wish to avail themselves of that option. Rav Bakshi-Doron argues that not offering them this option causes some secular Jews to resent Judaism and the Israeli rabbinate. Other negatives include undue pressure on the rabbinate to facilitate Orthodox marriage in highly questionable circumstances such as conducting conversion for those whom it is virtually certain that they will not observe Torah law. Finally, in case of a spouse refusing to cooperate with a Get, the other side enters adulterous relationships and sometimes even produces Mamzeirim. I would add the problem of non-observant Israelis who marry in Israel under the Orthodox Rabbinate and emigrate (sadly) from Israel and are no longer subject to the jurisdiction of the Orthodox Rabbinic Courts. Some of these couples that divorce do not obtain a proper Get. In addition, outside of Israel a recalcitrant spouse cannot be compelled to cooperate as can be done in Israel.

Rav Bakshi-Doron notes that there are some rabbis who are aware of this problem and deliberately conduct the weddings for couples they deem at-risk not in conformity with Halacha (such as using disqualified witnesses). Rav Bakshi-Doron strenuously objects to this practice noting technical Halachic problems such as Berachot recited in vain by the wedding officiates and the serious public policy concerns of Chillul Hashem due to the deceit (Geneivat Da’at) involved in creating the impression that the couple is married in accordance with Halacha when they are truly not.

Rav Bakshi-Doron adds that all Poskim would agree that if a couple deliberately chooses the civil marriage track over the Orthodox marriage option, they are not married according to the Halacha. Rav Bakshi-Doron views this choice as an implicit declaration that they do not intend to create an Orthodox marriage through their subsequent marital relations. Moreover, the suggested track includes a requirement for couples who marry in the civil marriage track that they sign a declaration that they are not interested in being married in accordance with Halachic standards.

Arguments Against Rav Bakshi Doron’s Proposal

Most rabbis do not subscribe to Rav Bakshi-Doron’s approach and a civil marriage option has not been enacted in Israel. They argue that his proposal is unwise and potentially very harmful and thus terrible public policy. It should be noted that Orthodox control of marriage and divorce often prevents Mamzeirut. For example, in my capacity as a Get administrator, I have witnessed this phenomenon on numerous occasions as otherwise non-observant Jews who are divorcing make sure to receive an Orthodox Get in order for them to be eligible for remarriage in Israel. Furthermore, there is already a de facto option for Israelis to marry in a civil ceremony. They can marry outside of Israel (Cyprus is often the venue of choice due to its proximity to Israel) and the couple is recognized as married by Israeli civil law.

Thus, introducing a civil marriage option to be conducted in Israel would not introduce anything new. However, it would represent a major setback in the struggle to maintain and further the character of Israel as a Jewish State. Moreover, the creation of two tracks adds to the divide between observant and traditional Jews on the one hand and secular Jews on the other. Israel’s founders, including avowed secularists such as David Ben-Gurion agreed to marriage and divorce in Israel being under exclusive Orthodox rabbinical control to maintain the unity of Israeli Jews and to avoid a tragic split reminiscent of the disastrous split of the kingdoms of Israel during the times of the first Beit HaMikdash. Creating a two-track system for marriage is, to a great extent, creating two classes of Jews in Israel. What a terrible thing to occur under the auspices of the Jewish State!

It is one thing for there to be a civil marriage option for Israelis that is conducted outside the framework of the Jewish State. The Jewish State, however, should officially conduct only authentic Jewish marriage and divorce ceremonies that are niversaly recognized and have withstood the test of time. Of course, rabbis who officiate at wedding and divorce ceremonies of non-observant Jews must conduct themselves with special sensitivity and kindness. These events should serve to strengthen the Jewish character of non-observant Israelis and not God forbid estrange them further.

Conclusion

It is very difficult to determine whether it is good Torah public policy to create a civil marriage option for Jewish residents of Israel. While Rav Bakshi Doron makes some cogent arguments, and might be beneficial for certain individuals, most Rabbanim feel that it represents a public policy disaster for the Jewish people as a nation. Outside of Israel, rabbis should carefully consider Rav Bakshi-Doron’s arguments when they consider officiating at the wedding of non-observant Jews.

[1] Rav Reuvein Feinstein told me (in a personal conversation) that his father’s concern did not apply to a Rav who has an ongoing relationship with the non-observant couple. Examples, in my opinion, include a family member, business associate, or congregational rabbi.