On conducting private marriages more properly, or: How to contribute your modest part to toppling the Chief Rabbinate (Column 3)

With God's help

The factual situation

I have already written in the past about the great harm caused by the Chief Rabbinate of Israel and the corruption that reigns in that body, and I will not repeat it here. It seems to me that many have already understood that this institution is like that earthenware vessel whose purification lies in its being broken, and which can be protected only by a knife. One indication of this was discussed in a Channel 2 News report, on Saturday night, 7.11, where a phenomenon that has begun in recent years was described: couples marrying privately, that is, through a rabbi who is not authorized by the Chief Rabbinate. These are couples who can marry according to Jewish law (not, for example, a kohen and a divorcée), some of them even Orthodox. Their laudable goal is to protest this body, bypass it, and thereby render it superfluous. In that report, the interviewer (Yossi Mizrahi) asked me, as someone who supports this phenomenon, who will safeguard marriage in Israel without the Rabbinate and its rules? I answered him that there was Someone who safeguarded us for two thousand years without a Chief Rabbinate, and I hope He will continue to safeguard us henceforth from the Chief Rabbinate (although for the time being, sadly, here He is bungling things a bit). I added that the last body to which I would entrust the safeguarding of anything connected to Judaism is the Chief Rabbinate.

In order to combat the phenomenon of private marriages and preserve the monopoly in its hands, the Chief Rabbinate brought about the enactment of an amendment to the Marriage and Divorce Ordinance, that is, the addition of a section to the Ordinance (no. 7). From press reports one could get the impression that this amendment imposes criminal liability for conducting private marriages, with a penalty of two years' imprisonment. Ostensibly, this section further strengthens the Rabbinate's monopoly. That is also how quite a few lawyers with whom I spoke understand it (including experts in family law and personal status). But following an inquiry I conducted, I pointed out—to their surprise—that this is really not accurate, as I will explain immediately.

To understand the matter better, it is important to note another fact, which surprised me greatly. Usually, couples who marry privately are not registered as married with the Rabbinate or the Interior Ministry, as part of the desire not to use the Rabbinate's services. That is precisely the point on account of which this section imposes criminal liability: non-registration, not the very conducting of a private marriage. I would add that when I expressed support for private marriages in that report, I did not mean to support non-registration. Couples who marry lawfully and are not registered as married thereby create a very problematic distortion, and one that is entirely unnecessary. At the end of that report one could see some of these problems.

I would like to show here that one can protest the Rabbinate in a far more effective and less harmful way. Moreover, ironically, this possibility was created precisely because of the above amendment to the Marriage Ordinance. It seems that the Chief Rabbinate shot itself in the foot (for now, regrettably, only in the foot).

The legal situation

The latest amendment to the Marriage Ordinance (section 7) is phrased as follows:

Offense:
7. Whoever does not ensure the registration of his marriage or divorce, or the registration of a marriage or divorce that he arranged for another, is liable to two years' imprisonment.

The language of the law clearly shows that the offense carrying two years' imprisonment is non-registration, not the conducting of private marriages. It follows that a rabbi and a couple who conducted a private marriage have committed no criminal offense (at least not by virtue of this section). Several expert jurists with whom I spoke and corresponded have already agreed with me on this point, and in truth one can see it in the wording of the law even without being a particularly great legal scholar.

After that, I raised a further argument (and so far I have not received confirmation of it from any legal authority), according to which a reasonable interpretation of the law takes us one step further. A Rabbinate or Interior Ministry employee who refuses to register spouses who married privately, if and when they come to the Rabbinate to register as a married couple, is the offender—and he alone—since he is preventing the registration of a couple that married lawfully (= according to Jewish law), and therefore, if anyone is to be punished, it is he.

Admittedly, the wording of the law states that criminal responsibility falls on the officiant and the couple, and therefore ostensibly it is impossible to impose criminal liability on the registration clerk at the Rabbinate or the Interior Ministry. But it seems to me that a purposive interpretation shows that the aim of the law is to ensure that couples who are lawfully married are registered. The alternative is that the purpose of the law is to grant a monopoly to the Rabbinate, but if that were so the legislature should have prohibited the conducting of private marriages and not merely required registration. As stated, that is not what the law does. Moreover, an examination of the proposed bills and the discussions around them makes it clear that the Rabbinate and those carrying out its will did indeed want criminal liability to be imposed on the very act of conducting a private marriage, but the legislature chose to formulate the matter differently. The necessary conclusion is that the purpose of the law is to prevent a married couple from going unregistered, not to prevent the conducting of private marriages. The logic here is self-evident. An unregistered married couple creates total chaos. One can marry several women or several men and no one will know about it. But the blame for this does not lie with the private officiant, nor with the couple, but with the Rabbinate, which refuses to register them (if they do in fact come to register and the clerk refuses to do so). It is important to understand that the accepted approach in theories of legal interpretation is that even purposive interpretation must draw nourishment from the language of the law and from the logic underlying it, and not necessarily from the intentions of the legislators (some of whom in this case, of course, want power and monopoly).

If so, the Rabbinate or Interior Ministry clerk who refuses to register a married couple is the one who creates the wrong that this law came to prevent, and therefore, if there is any criminal liability here at all, we have no choice but to impose it on him. In my layman's understanding, this is akin to an income-tax clerk who refuses to accept tax payments from a citizen who comes to pay, or a police officer who forces a citizen to drive unlawfully (without justification). Is it conceivable that they would not be punished? The Rabbinate clerk is in exactly the same position. He is the one who brings it about that a couple lawfully married will not be registered, and he is the one who creates the wrong that the law came to prevent. Several jurists told me that they do not think so, but it would be interesting to put this to a legal test.

I would add that in the past the Supreme Court has made statements to the effect that conducting private marriages is contrary to public policy, and I did not understand (nor did those with whom I was speaking) what exactly the legal significance of this statement is. Therefore I would add—and again, this is only my lay opinion—that the problem of public policy, as explained above, arises only because of non-registration and not because of the very conducting of a private marriage.

A similar analysis exists with respect to private divorces as well. The wording of the section indicates that there is no prohibition on conducting them privately, but only on failing to register the matter if it was done. On the contrary, the Rabbinate will now be obliged to register spouses who divorced through a private divorce as divorced, precisely by virtue of this amendment to the law.

To sum up, all couples and all officiants conducting private marriages should know that the law does not prohibit or impose criminal liability for conducting private marriages, but only for failing to register a couple that is considered married according to Jewish law. Likewise, it is possible that the meaning of the amendment is that now, contrary to the situation that prevailed previously, the Rabbinate must register any married couple that comes before it (including, of course, a kohen and a divorcée, since their marriage is valid according to Jewish law, but certainly a couple married fully in accordance with Jewish law). To the best of my understanding, precisely now, after the amendment to the law, the claim they might raise—namely, that the rabbi officiating at the ceremony was not authorized—has become entirely meaningless, so long as he comes to register the couple with the Rabbinate and the couple is married according to the law of Moses and Israel.

How should one protest?

There is no legal system in the world that can permit a situation in which a married couple is recognized but not registered. After all, the husband can marry another woman in addition to his wife, and vice versa. This is an impossible situation, not only from the standpoint of Jewish law but also legally (who is married to whom? who inherits whom? who receives rights? who is the common-law spouse of whom? whose child is it? whom is he, or his child, permitted to marry? who is whose sibling?). And what if the spouses come into conflict? People who deal with these matters told me that in such a situation serious problems arise (because one spouse drags the other back to the Rabbinate, which of course makes trouble for them because they are not registered as married. The other may specifically want to divorce privately, and that is either not recognized or will not be done correctly according to Jewish law).

Therefore, in my view this mode of protest is mistaken and harmful, and it ought to be stopped. As stated, the problem is not only halakhic but also legal. You will not be surprised to hear that the Rabbinate of course uses this very argument in order to keep the monopoly in its hands. The trouble is that this is nothing but a continuation of the chase after power. It turns out that precisely the new section in the Marriage Ordinance makes it possible to dispense with their gracious assistance and solve the problem ourselves.

The correct and more useful way to act is to conduct private marriages and divorces, but then specifically to come and register with the Rabbinate or the Interior Ministry. As stated, to the best of my understanding they are obliged to register the couple as married (or as free to marry, in the case of divorce), precisely because of the amendment to the law that requires registration. They may even be happy to do so (those among them who are decent people. Perhaps there are even a few such people there), in order to prevent the expected problems. But even if they do not agree, it may be possible to petition the High Court of Justice and compel them to do so precisely under section 7 mentioned above. In any event, legally it seems that there is no criminal liability for the couple or the officiant if in fact they come to register, even if the Rabbinate refuses to register them.

Conclusion: most of us are probably mistaken about the current legal situation

The conclusion is that, contrary to what they are trying to sell us from all sides, following the amendment to the law the situation has actually improved. It is now finally possible to come out of the underground and do things openly. Under the current legal situation, the Rabbinate's monopoly on granting authorization to perform marriages or divorces no longer has any meaning, and anyone who knows how will be able to do so in whatever way he wishes. If I am right, then from a legal standpoint the Chief Rabbinate is already today a purely bureaucratic institution (at most a regulator. See below), whose role is to register what is done around it in any form and manner, so long as it takes effect according to Jewish law. So why not act accordingly, and bring about a situation in which this will be so in practice as well? A protest consisting of private marriages and divorces followed by formal registration is ideal, and it will bring us exactly to the results the protesters wish to achieve:

1. None of the participants (the rabbi and the couple) takes any risk of criminal sanctions. They come to register as the law requires.
2. No problems or complications are created because of non-registration, as may happen in the current situation.
3. The Rabbinate will (apparently) be obliged to register every marriage and divorce of any kind (that is valid according to Jewish law) performed by any rabbi, whether authorized or unauthorized. If so, we have achieved the desired result: the Rabbinate remains an irrelevant registration body, with no centers of power or influence in this area.

Two concluding remarks

A. 'Non-kosher' marriages. If I am right, then everything I have said should also apply to situations in which the venue where the ceremony is held is not kosher or lacks a Rabbinate kashrut certificate (or is open on the Sabbath, or on Christmas, and the Rabbinate's other power-hungry caprices), and also if a kohen and a divorcée are marrying, and, if you can find one, even a High Priest and a widow. And even if no blessing at all was recited there under the wedding canopy, or a woman recited all the blessings, heaven forfend, and even if she added another eighteen blessings from the Amidah prayer. And even if there were seven poles to the canopy and not four, and even if the couple did not undergo halakhic preparation, and certainly also if none of the details of the customs that the Rabbinate nowadays insists upon were observed there (who circles whom how many times, etc.). The moment the couple is married according to Jewish law, even if it was done through an outright transgression, the Rabbinate is obliged to register them (for even in such situations the wrong is created by non-registration, as the law defines it).

To remove any doubt, I myself of course would not officiate at the marriage of a kohen and a divorcée (unlike a couple who might wish to forgo the sacred ceremony in which the bride circles seven times, under the rubric of a woman shall encircle a man ('the female shall circle the man'), and would prefer that the groom make an irrational number of circuits by helicopter around the bride while his parents fire honor salutes from a heavy machine gun all around. I have no problem with that), but it seems to me that this is the legal situation as it actually stands (and in my view that is a welcome thing).

B. The need for a regulator. Anyone who is not married or divorced according to law is not required to register and cannot be registered. Paradoxically, when the Rabbinate wants to bring criminal charges under this section against a rabbi or a couple who married or divorced privately, by doing so it acknowledges the validity of their marriage or divorce. To determine whether the marriage or divorce was carried out according to law, there is certainly room to appoint a regulator who will examine each case on its merits, to see whether things were done according to Jewish law. But there are regulators in many fields, and they are subject to review by the High Court of Justice. This is not monopolistic power that controls the market, as the Rabbinate has today. On the contrary, a regulator is an important thing, precisely in order to prevent the problems described above. Clearly the regulator would not hand out arbitrary authorizations on its behalf, as is done today, but would confirm that the marriage took effect, at least after the fact. It would be bound by very clear and wholly minimalist rules to be established in law: the giving of a ring worth at least a perutah (the minimum halakhic monetary value) before two valid witnesses, together with the recitation of some relevant formula. And more or less that is it.

This amendment to the law is, of course, only the beginning of redemption; that is, it helps chip away somewhat at the rotten religious establishment in the present dismal state of affairs, before we have become wise enough to separate religion from state entirely. Full redemption will arrive, with God's help, only when the secular public stops repeatedly imposing on us the most conservative elements and placing them, time after time, at the head of the Rabbinate and its religious courts with uncompromising determination. The determination of the secular public to reject every more reasonable, pleasant, and sensible proposal, and their stubbornness in always supporting precisely the most fossilized and conservative forces, is the sole cause of the intolerable situation of harmful and ugly religious coercion, and of the very need to try to find ways of circumventing it. But that matter already requires a separate article.