The ultra-Orthodox parties attribute the current struggle to Hiddush

"The Court Against the Torah!" – Really?!

The Lod Administrative Court released a ruling this week that has far-reaching consequences for issues of religion and state, and which opens a significant window of opportunity for freedom of marriage for Israelis.

Uri Regev 14/07/2022 22:18

Tags: Marriage ·  Marriage freedom ·  Utah County ·  Legal advocacy

Yated Ne’eman top headline July 11, 2022: ''Deep shock felt throughout all Jewish communities in reaction to the court's decision, which erodes the sanctity of the Jewish home, the structure of the family and the purity of lineage”

We have written repeatedly over the recent year about the petitions that Hiddush has submitted, as well as other, parallel petitions that were submitted concerning the registration of Utah marriages. “Utah marriages” refer to an online platform for marriage that was created by Utah County, Utah, USA in 2019, and which quickly became a sought-after service throughout the world, especially during the Covid-19 pandemic, as well as in countries such as Israel, which limit the right to marriage of its citizens even during “normal” times.

The ultra-Orthodox parties were quick to respond to the ruling, and unsurprisingly, their response is expressed in extreme and threatening terms.

Above you can see the headline in the daily newspaper of the United Torah Judaism party, headed by Rabbi MK Gafni, former chairman of the Knesset's Finance Committee.

We were very proud to read that they attribute the current struggle to Hiddush, in the main body of the article. Following their description of the online marriage platform launched by Utah county and the interest that it aroused in Israel, they wrote: "... and so the initiative began to gain momentum, until the Hiddush organization petitioned the court ...". Their reaction reflects, as stated above, the extent to which it is not only a question of the right to marry, important as it may be, but a struggle for the soul of the State of Israel. The struggle is whether Israel will be a democratic and Jewish state that respects individual freedoms and human rights, including freedom of religion, or whether it will be a Torah State, or close to it, as the ultra-Orthodox parties hope for it to be.

We should see the headline "The Court against the Torah" with this background in mind. In the opinion of the ultra-Orthodox parties, the State of Israel, and individual freedoms, such as freedom of marriage, should be subject to the Torah, which of course has only one interpretation in their opinion: the interpretation of ultra-Orthodox rabbis and the Chief Rabbinate, which bows to the authority of these ultra-Orthodox rabbis. It is therefore not at all about the question of respecting the right to marry, which is recognized by all Western democracies, but rather of "the sanctity of the Jewish home, the structure of the family, and the purity of lineage.” Therefore, given that the only organ that dares to challenge the extortionate demands of the ultra-Orthodox parties is the judiciary - it is not enough to seek to change the law and reverse the ruling given this week so as to block the path of couples wishing to utilize modern technology to exercise their right to marriage, but they see it necessary to “limit the power of the judiciary "[as MK Maklev from UTJ has reacted, for example].

For more than 60 years, the Ministry of the Interior has been trying to prevent the recognition of civil marriages by Israelis which took place abroad. In each case, Israel’s Supreme Court has ruled against the State, that the couples are entitled to have their marriages legally registered.

Hiddush - for Freedom of Religion and Equality welcomes the ruling, which instructs the Population Authority to register online marriages of Israelis in Utah. For more than 60 years, the Ministry of the Interior has been trying to prevent the recognition of civil marriages by Israelis which took place abroad. In each case, Israel’s Supreme Court has ruled against the State, that the couples are entitled to have their marriages legally registered. Hiddush has been pursuing freedom of marriage in Israel for years and represents ten Israeli couples who have married in this manner, according to the laws of the State of Utah, as well as rabbis Spector and Levinsky from Utah who have married Israeli couples remotely via video conferencing. Several petitions that Hiddush filed regarding registration of Utah online weddings are pending before the Administrative Courts in Jerusalem and Tel Aviv. Hiddush hopes that now the State will acknowledge its obligation to register these marriages without further delay.

Utah online marriage is an opportunity for hundreds of thousands of Israeli couples who are either unable to marry in Israel due to the Orthodox Rabbinate's monopoly on marriage of all Jews in Israel or who are unwilling to marry through the Rabbinate for reasons of conscience.ת/We will continue to fight for the registration of the hundreds of couples who have already been married in this manner, and if necessary we will continue to fight in the Supreme Court. This is a struggle between respect for human rights which are repeatedly upheld by the courts, and religious coercion, perpetrated by Israeli politicians, contrary to the wishes of a large majority of the public and in violation of the promise of Israel’s Declaration of Independence for “freedom of religion and conscience.”

Now that the Administrative Court has ruled in favor of civil liberties, we will soon learn whether the State will accept the ruling or appeal to the Supreme Court in an attempt to continue blocking the marriage-freedom channel that has opened in Utah for Israeli couples. Marriages performed via the online platform created by Utah County are legal, easily accessible, speedy and affordable. This is a necessary and welcome temporary solution until a civil marriage law is legislated in Israel, which would correct the reality in which Israel is the only Western democracy in the world which denies its citizens the right to marry according to their own choice.

It will take some time until we know what the immediate consequences of this ruling will be, and to what extent we have yet another legal battle waiting for us, if the State decides to appeal to the Supreme Court. At this stage we are awaiting the decision of the Tel Aviv Administrative Court judge as to whether and when to hold a hearing on the petition filed by Hiddush. We also have a hearing scheduled for September 7th before the Jerusalem Administrative Court. We will not be surprised if the State tries to avoid abiding by the ruling that was released this week and for the time being will refuse to register the hundreds of other couples who have married through the online marriage in Utah, including the couples that Hiddush represents in its petitions. Already, Rabbi Aryeh Deri, leader of Shas [the ultra-Orthodox Sephardi party] has turned to the Attorney General pressuring her to appeal the ruling.

At the outset, the judge poses the question that she will address: “Should the Minister of the Interior and the Population and Immigration Authority be ordered to register the petitioners, who were married in a ceremony which took place through videoconferencing, in the population registry?”

The ruling was handed down by the Lod District Court, which also serves as an Administrative Court. In the 16 pages of the ruling Judge Fink rejected all the State's claims in support of its position. The petition was filed by a private lawyer, Vlad Finkelstein, on behalf of a couple who turned to the Utah marriage ceremony option because while the woman is an Israeli Jew, the husband has no religious affiliation and is not considered Jewish. As such Israeli law does not allow them to marry in Israel at all.

At the outset, the judge poses the question that she will address: “Should the Minister of the Interior and the Population and Immigration Authority be ordered to register the petitioners, who were married in a ceremony which took place through videoconferencing, in the population registry?”

In the body of the ruling , the judge analyzed the existing precedents regarding civil marriages of Israelis abroad since the 1960s; the extremely limited authority that the registry clerk has to exercise discretion as to whether he or she must accede to the couples application for registration; and the distinction that needs to be made between the question of the registration of the marriage (regarding which the Supreme Court has ruled in the affirmative already more than 60 years ago) and the complex question of the substantive validity of this or similar marriages, which has not yet been decided by the courts to date. In addition, the judge devoted an in-depth and comprehensive discussion to the legal question that has arisen in recent years regarding the legal implications of actions that take place over the internet and deciding as to where these actions are considered to have taken place.

At the conclusion of the ruling, the judge summarized her decision as follows:

“This ruling focuses on the question of the registration of the petitioners as married in the Population Registry. It does not discuss the validity of the petitioners' marriage, nor does it serve as recognition of this marriage. There is nothing in the decision that may impact on their substantive personal law. It certainly does not affect the state's authority to shape Israel’s marriage laws.

At the core of the decision to order the registering clerk to register the marriage there are three reasons; Each of which stands in its own right, and all the more so when they are viewed together:

One, the registrar should have registered the petitioners as married following their application to the population registry, without further exploration, since they presented a Public Certificate [as defined in Israeli law – UR] which is valid and reliable on the face of it. This is the current state of the law, as developed by the Supreme Court in its rulings since the case of Funk Schlesinger, according to which personal status should be registered if a verified Public Certificate issued by an authorized authority is presented;

Second, the registrar is not qualified to decide where the ceremony took place, when the matter is complex and requires exercising legal discretion;

Third, by virtue of the principle of equality, since the registrar had already previously registered several couples married through the internet under the auspices of the State of Utah and there is no difference between the previous couples and the present petitioners. This is particularly pertinent when considering that the petitioners could not marry in Israel [since they were not both considered Jewish – UR] and were unable to leave Israel at the time for the purpose of getting married overseas, due to the Covid-19 pandemic.

Voters from Coalition parties & Likud support the institution of civil marriage in Israel (Hiddush's 2021 Israel Religion & State Index)

Considering all the aforesaid, the decision of the registry clerk not to register the petitioners as married exceeds his authority. Hence, the petition is granted. The respondents will register the petitioners as married in the Population Registry.”

As we wrote above, it is difficult to overstate the importance of this ruling. While the courts have refrained from entering the minefield of deciding the substantive validity of overseas civil marriages it has provided remedy to couples who could either not marry at all in Israel or refused to do so for conscientious reasons and chose instead to travel and marry overseas. It did so in the form of ordering the Population Authority to register these marriages and thereby providing the couples with de-facto and at least a partial de-jure recognition of their marriage, by all civil state agencies and the civil courts.

We will continue to update you on developments, of course. Among other things, it may be assumed that the issue will come up in the [upcoming][ election campaign. The ultra-Orthodox parties - if the formation of the next government relies on them – have already expressed their demand for cancellation of the ruling by reverse legislation.

In a situation where a large majority of the public is in favor of civil and pluralistic marriage in Israel [see example below], we must fight resolutely against such a possibility, and hope that Israel's friends in the Diaspora will join our struggle.