The good and the bad - current events leading up to Passover 2017
Growing frictions between religion and state in Israel
Israel's Supreme Court has handed down two decisions that demonstrate the critical importance of an independent civil judiciary, but the Government Coalition continues to capitulate to the ultra-Orthodox political parties.
06/04/2017 01:09
Tags: divorce · rabbinical courts · agunot · Yitzhak Yosef · Moshe Gafni · Elyakim Rubinstein · Supreme Court
Hands in chains, source: publicdomainpictures.net
The last two weeks have provided us with yet another nasty mouthful of the growing conflicts between religion and state in Israel. The good news is that Israel's Supreme Court has handed down two decisions that demonstrate the critical importance of an independent civil judiciary. Also, since both decisions were written by Justice Rubinstein, an Orthodox Jew who has repeatedly spoken for and acted in strengthening the Jewish character of the State of Israel, we see how artificial the fundamentalists’ claim of "the Israeli Supreme Court is out to destroy Judaism in Israel" truly is.
One ruling deals with a high visibility, controversial case regarding the intention of Israel's Chief Rabbi Yitzhak Yosef (the Head of Rabbinic Court of Appeals) to convene a special panel of the Court to hear an appeal submitted by a third-party individual with no connection to the divorce case who attempted to challenge the validity of a gett (religious divorce document) rendered by the Safed rabbinic court in a case where the husband had been comatose for 10 years. For further background, click HERE
The Supreme Court has been careful not to enter the substantive arena of the halakhic dispute over granting a gett under the specific and rare circumstances in this case, but rather based its decision on procedural grounds. Procedural grounds and issues involving natural justice give the Supreme Court review power over decisions of the Rabbinic Courts, and it does not sit as an appellate level on halakhic substantive questions. The Supreme Court based its decision on the lack of standing of the appellant, who, as the Court ruling quotes, told a journalist that "I've no connection to or knowledge of this specific case. It is merely a matter of principle." When asked who is behind him, he responded, "Behind me are anonymous rabbis. They sought a person whose name would be listed as the appellant so they turned to me." It was also noted that the Supreme Court Justices could not get clear answers as to his motives in submitting the appeal.
What would one say or think if it were his daughter or sister that were this ‘living agunah’ and somebody had attempted to reopen a closed [divorce] case, which had ended with a conclusive (peremptory) ruling, releasing her from her chains?
Justice Rubinstein raised the rhetorical question: "What would one say or think if it were his daughter or sister that were this ‘living agunah’ and somebody had attempted to reopen a closed [divorce] case, which had ended with a conclusive (peremptory) ruling, releasing her from her chains?"
The Court also referred to the procedural decisions made by the Chief Rabbi, including:
- The hearing would be held with a panel consisting of all the judges of the Supreme Rabbinic Court
- The two Chief Rabbis would also participate
- The Safed Court rabbinic judges who wrote the decision would also be invited to participate in the deliberations regarding the validity of the get
The Supreme Court noted that these decisions were so highly irregular that never before in the history of Israel's rabbinic courts had such a procedure occurred. Moreover, the Supreme Court pointed to the difficulty arising from the fact that the President of the Rabbinic Court (Chief Rabbi Yosef) did not disqualify himself from heading these deliberations, even though he had come out publicly against the granting of this particular gett, even before the Safed Rabbinical Court rendered its decision.
The Supreme Court accepted the position of the Attorney General who also maintained that hearing this appeal before the Rabbinic Court was against the law. The Court shared his concern as to the serious ramifications of allowing any person to challenge any peremptory ruling, granting him/her standing even if they were not a party to the original case, merely because the ruling was not to their liking. This is multifold more severe when sensitive matters of personal status are involved, since it brings about a substantial violation of privacy and the basic rights of the parties, in addition to human harm. All the more so when a gett is executed based on a conclusive court decision, and the divorcee who carried on with her life, assuming the matter to be over, may face a situation where it would her divorce might be retroactively nullified.
What would happen, Justice Rubinstein asked, "if, for instance, the woman had remarried and given birth to a son or daughter? Would anyone fathom the thought the child would be declared a mamzer (illegitimate)? If it were not for the respect I hold for the opposing halakhic sides, regarding whom I presume they fight for what they genuinely believe to be the way of the Torah, I would have characterized the circumstances that were created in the words of Rabbi HaLevy in the opening of the Kuzari where the angel tells the King of the Kazars, ‘Your intention is desirable in the eyes of God... but your action is not.’"
Concluding this matter, Justice Rubinstein held that limiting the right of appeal to the parties of the case alone is based on the framing of the right of appeal in Israeli law; and the rabbinic regulations cannot grant a right of appeal to someone where the legislature has not seen fit to do so.
The matter before us is difficult, emotional, and human, and on the side of the legal question that we were asked to decide, the heart goes out to the woman who has endured a torturous path.
Before concluding, the Court raised constitutional aspects as well. One has to do with the protection of human dignity, and the question of whether casting doubt regarding the status of a divorcee who is now post-gett and available for marriage does not constitute the violation of her dignity as a person, and whether there is room to raise such doubts by a person who has no connection to the case. Also, Justice Rubinstein asked whether allowing the appeal may not conflict with Article 5 of the Basic Law of Human Liberty and Dignity, which forbids taking away or limiting the liberty of an individual in a way that is not in keeping with the conditions set in the Basic Law, namely: "for a desirable purposes, and in a measure that does not exceed the necessary." In making this additional point, Justice Rubinstein drew an analogy between the liberty referred to in the law, and liberty from the shackles of a marriage, which is no longer a marriage.
In the final section of the ruling Justice Rubinstein mentioned once again the importance of finding halakhic solutions to the plight of Agunot. He emphasizes that this not just a halakhic question, but also a case of a woman who has found herself in a difficult human situation, which the regional rabbinic court found a way of releasing her from in a conclusive decision. He asked whether the great sages of the Torah who surely also have a heart, would not seek a way to uphold the release based on some halakhic argument, even if it's different than the one used by the regional court, rather than open the door to leaving her fearing the status of being a ‘living Agunah’ by rolling the wheel back, God forbid. Even in those historic instances when controversies ensued regarding the retroactive revocation of getts, they were extremely rare, and in those handful of cases, the view of the majority of the halakhic authorities of the time was that getts should be upheld and not retroactively revoked.
"The matter before us," said Rubinstein, "is difficult, emotional, and human, and on the side of the legal question that we were asked to decide, the heart goes out to the woman who has endured a torturous path, first when her marriage life crumbled, as her husband became comatose, then over all the years that she fought to gain a gett, and then fighting over the validity of her gett. It's time to end this matter. In the legal arena the lack of right of someone who is not a party to the case to appeal it is self-evident, and we have not found reason in this case to deviate from this basic principle. This does not hurt the dignity of the President of the Supreme Rabbinic Court and the Rabbinic Court itself.
It is appropriate for us to ensure that the dignity and liberty of the divorcee would be upheld and that by issuing our final decision, her tribulatory journey would come to an end.
Justice Meltzer, in affirming Justice Rubinstein's opinion, concludes with the relevant message for these days: "In closing - being the Eve of the Festival of Liberty - it is appropriate for us to ensure that the dignity and liberty of the divorcee would be upheld and that by issuing our final decision, her tribulatory journey would come to an end."
Another decision rendered by the Supreme Court this week, though not a final ruling, involves the ongoing litigation over the demand that a woman be appointed Deputy Director of Israel's Rabbinic Courts, as was agreed upon in a previous hearing, and that the criteria for submitting candidacy for the position of Director of the Rabbinic Courts would also be adapted to enable a woman to apply for the position.
In urging that these issues be resolved, Justice Rubinstein pointed to the "explicit promise made by the Director General of the Ministry of Religious Services to appoint a woman as Deputy Director of the Rabbinic Courts, half of whose ‘clients’ are women. The State informed the Court, back in December, says Rubinstein, that this matter was "stuck" for one reason or another, in spite of the support of the Attorney General. Greater miracles have been carried out in the area of appointments in Israel, including in the rabbinic court network, but here it has not been successful yet."
The Court has therefore issued a show cause order against the President of the Rabbinic Court of Appeals and the Minister of Justice to show reason by April 25, 2017, as to why a woman would not be appointed to this position.
As can easily be imagined, these two decisions have added to the fundamentalists’ anti-Court sentiments and pronouncements often reported upon by Hiddush.
On the "bad news" side of things, we can mention that only yesterday MK Rabbi Gafni exacted further price for holding a whip over the Coalition Government and having his hand on the country’s budgetary faucet, as his Knesset Finance Committee approved an 800,000,000 NIS for Yeshivas and religious institutions, which their Coalition partners were forced to agree to, as part of the ‘Coalition Agreements’. Needless to say, not only is there overwhelming public resentment of these excessive and quickly growing allocations, but they stand in sheer contradiction to Israel's vital interests, as they further facilitate keeping yeshiva students at the State's expense in yeshivas and out of the workforce, and as they provide greater funding for ultra-Orthodox schools, which refuse to teach the State mandated core curricular studies, and inculcate anti-democratic and anti-Zionist beliefs.
Also within this recent time frame, Gafni issued a press release of the Finance Committee, titled "Finance Committee Chairman Gafni set a deadline of a week for the Finance Ministry to receive an answer to his demand to equalize the pay of teachers in ultra-Orthodox schools to that of teachers in public education." The language of the statement's title tells it all, and in the relationship between Gafni and Israel's treasury the message is clear: either you abide by my demands, or else don't bother coming before this committee for approval of your needs. When one reads the minutes of the committee deliberations on this topic, it is apparent that Gafni could not care less about the explanations given by the Finance Ministry that the benefits given to the group of teachers in question in the public school system were part of a reform process aimed at cutting down the number of schools that train teachers and cut their overall costs, which is not the case at all with the training programs for teachers in ultra-Orthodox schools.
Reflecting the ongoing feeling of political capitulation to the dictates of the ultra-Orthodox parties, a special survey was released last week, polling the views of secular Israeli Jews on matters of religious coercion. Over 70% maintained that the religious sector enjoys preferential funding and that this is of great concern to them. Similarly, some 80% are disturbed by the lack of public transportation on Shabbat and by the limitations on shopping on Shabbat. Over 40% are very concerned over growing religion-ization in the public secular education system. 53% feel their identities as secular Israeli Jews threatened in Israel.
The battle over "Whose Israel?" and what values will shape its identity and soul is on. This is a battle we cannot afford to lose. Even the glimpse given to us this week of what may happen when the likes of Rabbis Yosef and Gafni are given full rein is scary. Clearly the silent majority in both Israel and the Diaspora does not want any share in such a prospect, but so long as it remains silent, cynical politicians will have the upper hand. Recent polling of public opinion regarding developments such as the growing Orthodox support for religious freedom, give us hope.