The High Court of Justice last week concluded its hearing on a petition against the rabbinical courts’ initiating investigations into adultery, even if neither party entered such an accusation and without any presentation of evidence. Following such investigations, rabbinical courts have banned women from remarrying their divorced husband or marrying the man with whom they had sexual relations while married. This restriction is noted in the divorce document and in a document issued by the rabbinical court.
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The petition also opposed people being placed on a restriction list maintained by the rabbinical courts, sometimes without their knowledge.
As part of the hearing, Yitzhak Yosef – the Sephardi chief rabbi and president of the Supreme Rabbinical Court – issued a new version of directives in such cases, instructing that restrictions on marriage are not to be noted in rabbinical court documents, except following clarifications in which arguments and evidence may be presented by the couple and the third party. Yosef also instructed that individuals should not to be placed on lists of people who are restricted by the rabbinical courts from marrying in the absence of such clarifications.
The High Court justices ruled that because new directives had been issued, the legal situation the petitioners were protesting had changed. They therefore dismissed the petition. However, they stressed they were not taking a position with regard to the new directives, and that the petitioners could refile after the new directives were applied.
Although the justices noted that the new directives were not far from the demands of the petitioners, and left petitioners an opening to return to the High Court when the directives were applied, the petitioners are right to oppose the existence of “blacklists,” which violate privacy, the principle of equality and, especially, the status of women, whom Jewish law treats more harshly than it does men.
But even if the High Court intervenes if necessary with regard to these procedures, the affair shows the problematic nature of placing matters of personal status in the hands of the rabbinical court, which acts according to religious principles rather than the principles of equality to which the state is committed. The High Court of Justice should impose norms of equality on the rabbinical court, but the problem lies in the granting of authority to the rabbinical courts, whose conduct even the High Court of Justice cannot fundamentally change.
A system of marriage and divorce to which such prohibitions and lists apply is not compatible with the concepts of democracy and equality. Therefore, the essential struggle – which is more important than improving the situation in the rabbinical courts – is to separate religion from the state here in all realms, especially this one.