Breaking up may be hard to do, but in Israel, getting together can be nearly as tough. Israel’s marriage laws are the strictest in the democratic world.
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Because David Ben-Gurion, the first prime minister of Israel, said “I do” to the marriage of the Jewish state and Ottoman personal laws.
The state of the unions
Today, all marriages held in Israel must be between heterosexual couples of the same faith. Only adherents of religions recognized by the government can marry here in ceremonies recognized by the state – so non-Orthodox Jewish marriages are also prohibited, no matter the stream. Because the Orthodox definition of who is Jewish is so limited, an Israeli can be Jewish enough to be drafted into the army – Jewish enough to die for the country – but insufficiently Jewish to marry who he or she loves in that country. Members of religious minorities unrecognized by the state, which includes all but one Protestant denominations of Christianity, also can’t marry here.
Civil marriage, of course, is not an option. If you want one, you have to get married outside of Israel.
Hiddush, an Israeli NGO that has mapped global marriage policies, finds Israel’s among the strictest. Israel ranks alongside nations like Saudi Arabia, Syria and North Korea. Even Iran – no paragon of sound social policy – permits some interfaith marriages.
Estimates suggest that more than 300,000 Israelis - mostly immigrants from the former Soviet Union - cannot marry in the country (their religion is listed as “nonreligous”). Even more choose not to: tens of thousands of Israelis marry abroad each year. Israel may claim to respect freedom of conscience and religion, but by telling its citizens who they can marry, and how to properly practice their faiths, the state is denying Israelis their most fundamental freedoms.
This system isn’t Jewish. It’s not even all that Israeli, actually. Israel regulates marriages this way because the Ottoman Empire did. Yes, the Ottoman Empire.
The Ottoman marriage system – known as the millet system for carving the population into confessional communities, or “millets” – was created as part of the empire’s strategy of “divide and rule.“ At their zenith, the Ottomans ruled from Morocco to Iraq, so their Islamic empire also included significant communities of Jews, Christians and others. To keep the peace between the different religious groups after conquering Constantinople in 1453 – and to limit their power by segregating them from one another – Sultan Mehmet II enacted the millet system.
Marriage under the millet system was a lot like marriage in Israel today. The state recognized a religious authority for each millet, and what that authority saw as marriage, the state saw as marriage. At the time, this had the virtue of ensuring that religious minorities had a measure of autonomy over their personal affairs.
As soon as the Ottoman Empire fell in the early 1920s, Turkey's secular reformers brought this to an end. Turkey replaced the millet system with civil marriage decades before Israel even declared independence. But by the time the Turkish ditched the millet system in 1924, they had been ousted from the land of Israel by the British. Entrusted by the League of Nations with administering Mandatory Palestine without infringing on the rights and freedoms of the existing populace, the British left the millet system in place.
While over time, some of the other nations that emerged from the crumbling Ottoman Empire also discarded the millet system, Israel did not.
As with so many of Israel’s compromises, you can blame this one on Ben-Gurion.
Fast forward to Israeli independence. Ben-Gurion confronted a familiar challenge: how to integrate the land’s ultra-Orthodox population into the new state. Their demands were extreme – Ben-Gurion had to fight just to ensure some measure of gender equality – and they staunchly opposed civil marriage. The existing Ottoman system met their demands.
Reluctant to speak up against the ultra-Orthodox, Ben-Gurion decided to hold his peace. And so the nation of Ben-Gurion said “I do” to the laws of Mehmet II.
The Sultan is no longer on the throne, but the millet system (with only minor changes) still rules in the so-called “start-up nation.”
The real threat to Judaism
Today’s opponents of civil marriage frame reform as a threat to Judaism. Israeli Knesset members from religious parties – most prominently Habayit Hayehudi – say that permitting civil marriage would undermine the historic Jewish character of the state.
But driving hundreds of thousands of Israelis to marry abroad – most of whom are Jewish – may do more harm to the “Jewish character of the state” than good. For while legally barring interfaith and same-sex marriages may ensure all marriages in Israel satisfy the Chief Rabbinate, coercing people into compliance can serve to alienate the populace from their state. Surely that is a more serious problem than allowing civil marriages for those who want them.
Survey data support the suggestion that there is a wide gap between the public and the state on this issue: The vast majority of Israelis want civil marriages to be permitted. According to a recent poll, 78 percent of the Jewish population supports permitting civil unions or marriages. Among secular Jews, support is at 96 percent. Even 60 percent of Habayit Hayehudi supporters favor allowing civil unions or marriages for both heterosexual and same-sex couples.
This disparity between the will of the people and the content of the law underscores an even more fundamental problem posed by Israel’s marriage laws: in enforcing one particular group’s vision of Israel’s Jewish character, the laws violate the nation’s understanding of its democratic character. Only a system that recognizes both religious and civil marriages can acknowledge Israel’s religious communities while respecting the rights commitments expressed in Israel’s Basic Laws.
On marriage, the real threat to Judaism in Israel today is posed not by those with their eyes on a democratic future, but by the religious conservatives clinging to a departed Ottoman past.
Michael Mitchell is a writer living in Tel Aviv. He is the former Editor-in-Chief of the Harvard International Review.