In January, I traveled to Israel to participate in the Dean’s Travel Study course, an upper-class offering here at St. John’s that allows students to travel and observe foreign legal systems. The trip, led by Professor Keith Sharfman, allowed me to explore the nexus between religion and government. It was particularly valuable for me as a fellow in the Center for Law and Religion and the Center for International and Comparative Law. My fellow students and I met with professionals who not only shared our love of the law, but whose perspective is also shaped by their experiences practicing law in one of the most contentious regions on the planet.
In Jerusalem we had the opportunity to tour the Israeli Supreme Court, attend oral arguments for three different cases, and even meet an Israeli Supreme Court Justice, Justice Elyakim Rubinstein. We heard about the makeup of the current Israeli Supreme Court, the process by which the Justices are selected, and the application of both Jewish Law and State Law in the resolution of the cases that come before the Court. The only Arab justice on the court is also a Christian, and he regularly cites the Old Testament, the Talmud, the New Testament, and the Koran to support his legal positions.
Though Israeli judges can cite religious texts in civil decisions, there are certain contexts in which religious law and civil law are divided into separate and distinct spheres – in particular, in the context of family law. This system is a remnant from the Ottoman Empire – minority religious communities were allowed to maintain their own courts to adjudicate family law disputes within their own communities. This was called the “Millet” system. The geographic area that comprises the modern Israeli state was part of the Ottoman Empire until the early 20th century. After the fall of the Ottoman Empire, the League of Nations established the British Mandate, whereby the United Kingdom was granted authority to rule Palestine. During this time, the Ottoman system of separate religious courts remained in place. The Israeli State also left the Millet system intact.
There are several religious courts in Israel: Jewish rabbinical courts, Christian courts (with separate courts for different denominations of Christianity), Muslim courts, and Druze courts. The religious courts deal primarily with disputes relating to marriage and divorce. Each religious court only adjudicates disputes between parties who are of that faith. For instance, a Jewish rabbinical court only adjudicates disputes between Jews.
In the United States, we consider the free exercise and establishment clauses of the First Amendment to be pillars of our society. Thus, residents of the United States can rest assured that the government will not pass and enforce laws with the purpose of discriminating against people on the basis of their religious beliefs and practices. The laws of this country will not be made on the basis of religious principles if without a secular purpose. Though a line is drawn between religion and government, invariably, religious beliefs do inform much of our public debate. They especially inform much of our public debate in the context of family law. There are few contexts in which this is more apparent than in the recent cases involving same-sex marriage, the outcome of which is that the country has expanded the definition of secular marriages performed by state officials, in which marriage licenses are issued, to include homosexual as well as heterosexual couples.
The State of Israel does not issue marriage licenses at all. It does not perform secular, or civil unions – they do not exist. Instead, marriage is seen as a religious institution in Israel, the parameters of which the state has no role in defining. Religious communities determine marriage’s meaning for themselves. The rabbinical courts define marriage for Jews, the Christian courts for Christians, and so forth.
In Israel, two individuals of different faiths may not legally marry. They are compelled to travel elsewhere (Cyprus is a common destination) to have their marriage performed. Upon their return to Israel, that marriage may be registered with, and will be recognized by, the state.
Israel has thus managed to avoid some of the conflicts that are unavoidable in American society. By delegating the responsibility of defining and performing marriages to religious communities, and of adjudicating marital disputes to their respective courts, Israel has found a way to accommodate conflicting religious traditions, while still recognizing marriages that have been performed outside of Israel, but which do not qualify for religious validation.
The cost of this accommodation is fairly high for Israelis who seek to be joined in matrimony but whose union would not be authorized by any of the designated religious communities in Israel. The Israeli State shifts the responsibility of authorizing marriages to religious communities – but it bears the responsibility for the dearth of options for non-religious or mixed-religion couples.