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Triger on Civil Marriage and Non-Marital Cohabitation in Israeli Rabbinical Courts

Zvi H. Triger (U. of Alabama School of Law) has posted Freedom from Religion in Israel: Civil Marriage and Non-Marital Cohabitation of Israeli Jews Go to the Rabbinical Court. The abstract follows.

The only form of marriage that is recognized under Israeli law is religious marriage. Following the Supreme Court’s ruling in the landmark 1963 Funk Schlesinger case, Israeli authorities must register couples who got married abroad as married. Many couples who wish to avoid the religious monopoly on marriage and divorce choose this rout. However, they are utterly wrong in thinking that they achieve freedom from religion by doing so.

In a 2006 landmark decision the Supreme Court held that the rabbinical court system has jurisdiction over the divorce of couples who got married in civil marriages abroad. While they do not need to have a full religious get procedure, the rabbinical court has exclusive jurisdiction over the dissolution of civil marriages of Jews. The Court’s decision was based on halachic principles, and was pre-approved by a panel of the rabbinical court.

However, rabbinical courts have been ignoring the Supreme Court’s injunction concerning the application of a speedier, more liberal divorce procedure in the dissolution of civil marriages, and they insist on performing a full Jewish get procedure. This article presents this trend, analyzes this phenomenon and offers tentative and preliminary speculations as to the reasons for and the direction of these developments.

Posted on by Mark Movsesian

Merin on Religious Marriage in Israel

Yuval Merin (COMAS) has posted a new article on SSRN, Recognizing Foreign Marriages of Couples Ineligible for Religious Marriage in Israel–A New Perspective of Choice of Law and Public Policy (in Hebrew). The abstract follows.

The Israeli laws of marriage and divorce are governed exclusively by religious law. Several groups of the Israeli population are completely excluded from the institution of marriage due to a long list of religious restrictions and impediments. Couples ineligible for religious marriage include persons “disqualified for religious marriage”; interfaith couples; persons without a recognized religion; and same-sex couples.

Such couples can only marry abroad. Upon their return to Israel, they may register as “married” in the Population Registry and may enjoy a few of the rights associated with the institution, but their marriages are unrecognized for most other purposes. Since the field of marriage recognition is not regulated under Israeli positive law, the courts will have to decide whether to apply the English personal law system or the American principle of lex loci celebrationis. A critical comparison between the two competing systems reveals that the American rule is preferable since it best promotes the policy objectives which choice of law rules in the field of marriage recognition should seek to achieve. It is also preferable since it best corresponds to the unique social and legal conditions prevalent in the State of Israel. Foreign marriages performed by Israeli couples ineligible for religious marriage (valid in the place of celebration) should thus be recognized, subject to the public policy exception. Religious norms, which are exclusively applied in matters of marriage and divorce within Israel, should not be considered in the framing of the public policy exception, which should be interpreted narrowly, as protecting only democratic, secular, rational and liberal values. Thus, the foreign marriages of couples who are single, adult, and unrelated to one another, and whose marriage in Israel is prohibited due to purely religious restrictions, should be fully recognized under Israeli private international law.

Posted on by Mark Movsesian

Church of England Rejects Proposal to Legalize Same-Sex Marriage

In a report today, the Church of England rejected as “flawed, conceptually and legally,” the Cameron government’s proposal to legalize same-sex marriage. Conceptually, the report argues, the proposal would “alter the intrinsic nature” of marriage as a union between one man and one woman. Notwithstanding the “genuine mutuality and fidelity” often found in same-sex relationships, the report states, the C of E felt bound to resist the proposal both for reasons of Christian faith and the Church’s “commitment, as the established church in England, to the common good of all society.”

The report argues that the government’s proposal, which purports to apply only to civil marriage, raises serious legal questions. The distinction between “civil” and “religious” marriage, an innovation in English law, is likely to be untenable in the long run, the report predicts. English law grants any resident, regardless of his or her religious affiliation, the right to marry in the local C of E parish (a great illustration, by the way, of Grace Davie’s point about religion’s public role in Europe). Once Parliament defines marriage to include same-sex marriages, could a parish church deny this right to same-sex couples? The C of E is doubtful. Even if Parliament were to allow C of E parishes to refuse to perform same-sex marriages, the ECtHR might not. Under existing ECtHR caselaw, once a state legalizes same-sex marriages, those marriages are covered by article 12 of the European Convention, which grants a right to marry, and article 14, the Convention’s anti-discrimination provision. Under these articles, a state church could justify a distinction between “civil” and “religious” same-sex marriages only by “very weighty reasons.” The report is skeptical that the ECtHR would ultimately allow the distinction to stand.

Critics immediately characterized the report as alarmist. Maybe it is. Given the recent vote of the Danish parliament requiring the Church of Denmark to perform same-sex marriages, though, it’s hard to completely dismiss the report’s concerns. It’s possible that, in time, either Parliament or the ECtHR would require the C of E to solemnize same-sex marriages, whatever the C of E’s religious objections. Of course, the problem may lie in the concept of the state church itself; the autonomy of a private church on religious questions would likely be more secure, particularly in light of the ECtHR’s recent Fernandez Martinez decision. But the Brits decided all that under the Tudors.

Posted on by Mark Movsesian

Pope on Redefining Marriage: Reasoned Argument and Pastoral Care

At a meeting with American bishops Friday in Rome, Pope Benedict discussed efforts in Western countries to alter the legal definition of marriage. Not surprisingly, he suggested that Catholics resist such efforts, and do so by making arguments from natural law. After noting “the powerful political and cultural currents seeking to alter the legal definition of marriage,” he stated:

The Church’s conscientious effort to resist this pressure calls for a reasoned defense of marriage as a natural institution consisting of a specific communion of persons, essentially rooted in the complementarity of the sexes and oriented to procreation. Sexual differences cannot be dismissed as irrelevant to the definition of marriage. Defending the institution of marriage as a social reality is ultimately a question of justice, since it entails safeguarding the good of the entire human community and the rights of parents and children alike.

When addressing itself to public debate, in other words, the Church should make reasoned arguments, not proclaim revealed truth. Within the Church, however, the Pope suggested a more pastoral approach. “In this great pastoral effort,” he said, “there is an urgent need for the entire Christian community to recover an appreciation of the virtue of chastity. … It is not merely a question of presenting arguments, but of appealing to an integrated, consistent and uplifting vision of human sexuality.” Of course, these two approaches — reasoned argument and pastoral care  — are not mutually exclusive; I don’t understand him to say that reasoned argument is out of place within the Church, or that more intuitive appeals are out of place in politics. The Pope appears to understand, though, that different appeals may be appropriate in the public square and within the Church itself.

Posted on by Mark Movsesian

Anglican and Catholic Bishops Oppose UK Government’s Plan to Legalize Same-Sex Marriage

Lots of law-and-religion news out of Britain this weekend. Here’s another story: in Catholic parishes in Britain today, worshipers heard a pastoral letter from Archbishop Vincent Nichols, the Catholic primate, warning about the dangers of legalizing same-sex marriage. The letter follows similar statements by Anglican bishops, including Archbishop of Canterbury Rowan Williams and Archbishop of York John Sentamu; Williams is quoted as saying that legalization would force “unwanted change on the rest of the nation.” The bishops’ statements follow reports that the coalition government of Prime Minister David Cameron is considering introducing legislation to legalize  same-sex marriage in Britain. It’s not clear from the reports whether the legislation would  authorize only civil same-sex marriages or actually alter the articles of the Church of England — adopted by act of Parliament — to authorize religious same-sex marriages as well. I assume the former, but I don’t know enough about Parliament’s role in setting doctrine in the Church of England.

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Wilson on Accommodating Religion in Family Law

Robin Fretwell Wilson (Washington and Lee University – School of Law) has posted The Perils of Privatized Marriage. The abstract follows.

Governments around the world continue to struggle with how to accommodate religious minorities in an increasingly pluralistic society, and how to accommodate religion in matters of family law. Efforts to respect religious understandings in family disputes seem at first blush innocuous: they would allow religious groups to define their own norms and celebrate the rich diversity of society. However, the experience of women and children of multiple faiths across the world demonstrates that religious deference extracts an unconscionable price. As the Volume in which this Chapter appears illustrates, such proposals would confer considerable latitude in family matters not only on adherents of Islam, but on Christians, Jews, and members of other faiths.
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Posted on by Marc O. DeGirolami

Witte on Early Protestant Models of Church, State, and Marriage

From the excellent Oxford Journal of Law and Religion (whose content is still available for free) is this extremely interesting piece by John Witte (Emory), Church, State, and Marriage: Four Early Modern Protestant Models.  The abstract follows.

This article recounts the rise of four early modern Protestant models of marriage that emerged in place of the medieval Catholic sacramental model. These are the Lutheran social model of Germany and Scandinavia, the Calvinist covenantal model of Geneva, France, the Netherlands and Scotland, the Anglican commonwealth model of England and its colonies and the budding separationist model of John Locke. Theologically, the differences between these models can be traced to the genesis of these models respectively in medieval Catholic sacramental theology, Lutheran two kingdoms doctrines, Calvinist covenantal constructions, Anglican commonwealth theory and Lockean contractarian theories, respectively. Politically, these differences can be seen in shifts in marital jurisdiction. Medieval Catholics vested exclusive marital jurisdiction in the church. Anglicans left marital jurisdiction to church courts, subject to royal oversight and Parliamentary legislation. Calvinists assigned interlocking marital roles to local consistories and city councils. Lutherans consigned primary marital jurisdiction to the territorial prince or urban council. Locke pressed for a sharper separation of church and state in the governance of marriage. The Article concludes with a brief reflection of the implications of the Lockean synthesis for modern contests over marriage law and its governance.

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Deb on Hindu Child Marriage Law

Shakti Deb (KIIT Law School) has posted A Critical Analysis of Child Marriage Law in India with Special Reference to Hindu Law. The abstract follows.

Child Marriage is considered to be a violation of human rights, according to UNICEF, it represents perhaps the most prevalent form of sexual abuse and exploitation of girls. In many parts of the world especially underdeveloped countries parents give consent to child marriages hoping that it would benefit the girl both economically and socially. This practice is especially common in rural areas and amongst economically backward families, the daughter is married off at an young age to relieve the family from her economic responsibilities.

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Posted on by Marc O. DeGirolami

Ninth Circuit Strikes Down Proposition 8

Today, in Perry v. Brown, the Ninth Circuit affirmed the district court’s determination that California Proposition 8 — in which the people of California had declared marriage to be the union of a man and a woman, which in turn reversed the judgment of the California Supreme Court — violates the Due Process and Equal Protection Clauses of the U.S. Constitution.  In a 2-1 decision, the court, in an opinion authored by Judge Stephen Reinhardt, held that none of the reasons offered by the proponents of Proposition 8 were legitimate under the most deferential standard of review that the court exercises in these kinds of cases — rational basis review.  Throughout the decision, the court repeatedly emphasized that this case was about taking away a right which had already been granted (by the California Supreme Court), rather than extending a right which had not yet been granted.  The dissenting judge disagreed with the court’s conclusions with respect to the rationality of the reasons offered in support of Proposition 8.

Unlike in the district court decision, there is little in this decision which overtly concerns religion.  The court did reject the claim that Proposition 8 protects religious liberty by making it less likely that religious institutions would be penalized for refusing to provide services to same-sex couples.

But the more interesting connections are indirect.  The court held that taking away the right of gay marriage (after it had been provided by the California Supreme Court) bore no rational relationship to the aims of childrearing, responsible procreation, and the promotion of a stable family structure.  It also held that the aim of preserving a tradition — including one based on “sincerely held private belief” — is not rationally related to a legitimate state interest.  Here’s a portion of the court’s opinion at 71-72:

Tradition is a legitimate consideration in policymaking, of course, but it cannot be an end unto itself . . . . A preference for the way things were before same-sex couples were allowed to marry, without any identifiable good that a return to the past would produce, amounts to an impermissible preference against same-sex couples themselves, as well as their families.

Absent any legitimate purpose for Proposition 8, we are left with the ‘inevitable inference that the disadvantage imposed is born of animosity toward,’ or, as is more likely with respect to Californians who voted for the Proposition, mere disapproval of, ‘the class affected.’  Romer, 517 U.S. at 634.  We do not mean to suggest that Proposition 8 is the result of ill will on the part of the voters of California . . . . Disapproval may also be the product of longstanding, sincerely held private belief.

UPDATE: Over at the Volokh conspiracy, Orin Kerr makes a very interesting point that, at least on my reading, the Ninth Circuit did not consider in its panel opinion.  Kerr writes that at least a part of the reason that the people of California might have voted for Proposition 8 was to register — “symbolically,” as the Ninth Circuit says — their disapproval of the California Supreme Court’s decision to extend marriage to homosexual couples.  The point was to issue a rebuke to the California Court.  One can, of course, agree or disagree with that symbolic popular expression.  But to my mind, it is difficult to conclude that a symbolic expression  with that motivation does not satisfy the rational basis standard of review.

Posted on by Mark Movsesian

Israel’s Rabbinical Court Jails Husband Indefinitely for Refusing to Divorce Wife

A fascinating story from Israel. According to the Jerusalem Post, the country’s Supreme Rabbinical Court of Appeals has ordered that a man be imprisoned indefinitely for refusing to grant his wife a bill of divorce, or get, under Jewish law. Tzivya Gorodetzki sued her husband, Meir, for divorce in 2001. Under Israeli law, religious tribunals have exclusive jurisdiction over marriage and divorce, so the case went before a rabbinical court, or beit din, which ordered Meir to give Tzivya a get. Under Jewish law, a divorce is effective only when the husband voluntarily gives the wife a get. Otherwise, the wife is an agunah, or “chained woman,” who may not remarry.

This is where things became interesting. Meir refused to give his wife the get. To punish him for contempt, and to encourage him to change his mind, the rabbinical court sentenced him to prison, where he has been for the last 10 years, the maximum term the rabbis could impose. Prison authorities tried various methods to make him relent, including solitary confinement, but nothing worked. Fearing that Meir would flee the country after his release, Tzivya went back to the beit din and asked it to extend Meir’s sentence indefinitely. In what the Post calls a “groundbreaking ruling,” the rabbinical judges complied. “The keys to your release are in your own hands,” the chief rabbinical judge told Meir at the hearing, “through the fulfillment of your obligations as a Jew. Release your wife and then you will receive your freedom.”

Accommodating religious law in a civil legal system is often problematic. Values clash, and it is difficult to know how much authority to give religious tribunals.  Countries adopt different approaches. From the outside, this particular accommodation seems extreme. Granting religious courts the power to imprison people indefinitely is no small matter. As I understand it, Israel’s Supreme Court has reserved the right to review the decisions of religious tribunals for compliance with Israel’s Basic Law, though rabbinical courts dispute this. I wonder if the Supreme Court will have an occasion to review this ruling.