Better to be a mamzer or to grow up without a father?
A verdict handed down a month and a half ago in the Tel Aviv District Court put back on the public agenda an issue that rocked Israel 34 years ago: the mamzer problem. Contrary to Justice Ministry policy adopted more than three decades ago, the court decided to hold a hearing to determine the identity of the father of a girl who might be a mamzer. The unusual decision threatens to wreak havoc on the delicate balance between the state and religious institutions vis-a-vis the "mamzer problem."
According to Jewish law, a mamzer - loosely translated as "bastard" - is a child born to a married woman by a man other than her husband.
The roots of the current court decision lie in the storm that erupted in the summer of 1972. A brother and sister - he a soldier in the standing army, she recently released from compulsory military service - unexpectedly discovered that a rabbinic court had declared them mamzers. This happened when the brother tried to register for marriage at the rabbinate. He was surprised to hear that his and his sister's files stated their mother had gotten pregnant with them without having divorced her first husband, to whom she was married in Poland before the Holocaust. Halakha, charged the rabbinate, forbids mamzers and their descendants from entering the rites of marriage for 10 generations.
The storm that erupted in the wake of the affair's exposure led to a coalition crisis that threatened to bring down Golda Meir's government: Secular parties announced they would withdraw from the coalition unless a way were found to enable the brother and sister to marry, and the National Religious Party announced it would withdraw from the government if a way were found. The crisis was resolved, strangely enough, by the Israel Defense Forces. Because the brother served in the regular army, the chief army chaplain, Shlomo Goren, decided he was authorized to refer the matter to a special rabbinic court, which was established within the military rabbinate.
The court (the names of its members have never been publicized) convened in secret and determined, on the basis of "new documents," (which have never been made public, either), that the mother's first husband was not Jewish. And therefore, according to halakha, she was not married at the time she became pregnant. The coalition was saved, but the "mamzer affair" left a deep scar not only on the political establishment, but also on both the rabbinic and secular branches of the judicial establishment.
In the 34 years that have passed, one may have gained the impression that the issue of mamzer births had ceased to loom over the delicate relations of religion and state. This derived from the lessons both judiciary branches learned. The rabbinic courts, whose prestige was dealt a mortal blow by the affair, have since that time minimized the use of this definition. In every case in which rabbinic court judges unearth even the slightest possibility that a child may not be a mamzer, they cling to this evidence so as to steer clear of the detrimental classification.
The Attorney General's Office also learned its lesson from the affair, but here the practical conclusion is much more problematic. The law confers on the attorney general the authority to intervene in any paternity suit submitted to the courts. In the wake of the mamzer affair of 1972, the attorney general's office implemented a policy by which the state would ask the courts to reject out of hand - without so much as a hearing - any paternity suit brought by a married woman against a man who is not her husband. In any case where recognition of a man's paternity might enable the rabbinic courts to declare the children mamzers, the attorney general requested that said suit not be heard. Until now, in nearly every case, the courts have complied with that request.
This policy may have reduced the number of mamzers, but it increased the number of children who grow up without knowing their father's identity. This is not only a problem of identity, but also a serious financial issue, as these children and their mothers have no one from whom to claim child support. In addition, many attorneys who practice family law believe this policy is intended less to protect the well-being of the minor than to ease the perpetuation of a political-judicial structure that does not distinguish between religion and state.
Asked to explain the motivations behind this policy, a Justice Ministry spokesman said, "Representatives of the attorney general operate according to the guiding Supreme Court verdict," and cited a verdict handed down in 1992, in which the Supreme Court ruled that the well-being of a minor required she and the man her mother claimed was the father not be tissue tested. This was because results of the testing "are liable to stick a mamzer label on her forehead." This would do "harsh, serious and irreversible harm, in terms of society and the environment in which the minor lives."
The case in question hinged on tissue testing, the most certain way of proving paternity; but the attorney general asks the courts not to facilitate any ascertainment of fatherhood, even in other ways.
8 months and 2 weeks
The case now being heard in the Tel Aviv court began with the brief marriage of Y., which began in June 2000 and ended in December of that year. As early as August, less than two months after the wedding, Y. and her husband decided to divorce. They opened a divorce file at the rabbinic court, moved into separate apartments, and according to Y., stopped seeing each other or having sexual relations. The divorce proceedings continued for several months, and ended with the granting of a get (a religious writ of divorce) on December 18, 2000. A short time beforehand, Y. met another man, and in August 2001 she gave birth to a daughter, whom she claims is the product of this union. However, the man denied paternity and refused to pay child support or otherwise support them.
In October 2001, through attorney Ronen Daliyahu, Y. appealed to the family court in Tel Aviv, asking the court to declare the man her daughter's father and to compel him to pay child support. The attorney general asked the courts - in keeping with his policy - to reject her petition. The daughter, explains his representative in court, was born eight months and two weeks after her mother received the get from her husband. This meant Y. had become pregnant while still married, and that recognition of the man's paternity was liable "to 'mamzerize' the minor."
"Before filing the suit, my attorney explained the matter to me," Y. told Haaretz. "I knew the state would be opposed to my lawsuit, and I also knew that if the courts accepted the suit, there would be a greater chance of my daughter being declared a mamzer in the future. But I think for the well-being of the child, she should first and foremost know who her father is and that her father will pay her child support."
In a surprising move, the court refused to reject the lawsuit out of hand, and at the end of a long hearing it ordered that tissue testing be carried out.
In a verdict written by Judge Yehuda Granit in September 2004, shortly before his own retirement, he ruled that the current legal situation in Israel - which forbids mamzers from legally marrying - is unconstitutional, and contradicts the Basic Law on Human Dignity and Freedom.
"This is a verdict of almost historic significance," says attorney Daliyahu. "Until now, all of the courts treated the issue of mamzers as a hot potato. For the first time, a court come and ruled that concern about mamzer status should not prevent these children from receiving child support. For 20 years, until this verdict, the courts accepted without question the position of the attorney general."
Evidence, yes; tissue, no
No wonder, then, that the attorney general appealed the decision to the district court. Officially, his appeal was filed against the decision to carry out tissue testing. However, in the appeal brief, the attorney general's representatives also expressed their objections to ascertaining paternity through any other means.
"The attorney general's opposition to carrying out the tissue testing," stated the brief, "derives from a preference for the well-being of the minor and concern for her halakhic, family, social and personal standing, in the light of his concern that as a result of this testing, the minor could be branded a mamzer." The concern of "mamzerization," the brief continued, would exist even if paternity were determined through means other than tissue testing, and therefore "it is the position of the attorney general that there is no justification for hearing evidence in this procedure for the purpose of determining paternity."
In other words, the state reiterated its request to reject Y.'s claim out of hand.
"The state's position really infuriates me," says Y. "The attorney general talks about the well-being of my daughter, but is essentially concerned only about the continued existence of a judicial and political structure that leaves the entire subject of marriage and divorce in the hands of the rabbinic courts. My daughter doesn't have to suffer and grow up without a father and without child support only because some primitive religious law here talks about mamzers. I am secular, and I would have no problem if my daughter were to get married in a civil ceremony. So there's no reason for them to prevent her from receiving child support only because the rabbinic courts might not allow her to marry."
The verdict of the district court, which was made public a month and a half ago, might express something of a retreat from the strident position taken by the family court. However, it also expresses a rejection of the traditional policy of the attorney general. In his ruling, Judge Yeshayahu Schneller may have accepted the state's appeal against carrying out tissue testing, but contrary to the state's position on the matter, he ordered the family court to hear Y.'s case and to continue to clarify the paternity of the man, through use of the usual laws of evidence.
"An approach by which whenever there exists a suspicion of mamzer status the court avoids hearing evidence, and essentially rejects any such claim out of hand," writes Schneller, "cannot hold up." If the accepted rules of evidence do not provide an answer, he continues, tissue testing may be reconsidered.
"These rulings are enormously significant," says attorney Daliyahu, "and they are the beginning of an unstoppable process. As a result of immigration from the former Soviet Union, there are now a huge number of children who are potential mamzers, and leaving the old policy in effect will deny them the right to know who their father is and also the right to receive child support."
Meanwhile, the Justice Ministry refuses to get too excited. "The family court ordered the tissue testing in spite of precedent," said the ministry spokesman. "That prompted the filing of an appeal request by the representative of the attorney general, and the request was approved. The detailed verdict of the district court speaks for itself."