December 3, 2021

Let’s Talk About Israel’s Blacklist

By Susan Weiss

It’s time to talk about Israel’s blacklist. This state sanctioned registry of “untouchables” — the last public accounting of it in 2004 lists 5,305 Israelis — is a motley crew who fall under three general categorizations:

  1. People who can’t marry any type of Jew (2,835)
  2. “Unkosher” Jews who can’t marry “kosher Jews” but can marry other “unkosher Jews” or converts (235)
  3. “Kosher Jews” with issues that limit who they can marry (2,235)

Included in the first group are: Gentiles; those suspected of being Gentiles; “lapsed” converts whose conversions were repealed because of conduct deemed “wayward” by Israeli state rabbis, and the children of those lapsed converts. In the second category of “unkosher Jews” are mamzerim and suspected mamzerim — children born of their mother’s adulterous relationships, or of their incestuous relationships, even if coerced. These include children born of “consanguineous” incestuous relations (among blood relatives) like a father and daughter, as well as “affinal” incestuous relations (non-blood relatives) like a woman with her sister’s ex-husband, or a widow with her brother-in-law if she had had children with her husband. In the third category of “kosher Jews” whose options are limited are, among others: Cohanim or priests who live with divorcees or converts and whose daughters are not permitted to marry other priests; divorced couples who slept together after divorce and need to redo the get ceremony if they want to marry other people; as well as women suspected of adultery who are barred from marrying their ex-husbands or lovers.

All of the above kinship rules are based on ancient, Biblical and rabbinic laws and have been incorporated into the operative, family law of the land in the State of Israel by way of the Rabbinic Court Jurisdiction (Marriage and Divorce) Law of 1953. In 1976, then Attorney General, and later Chief Justice, Aaron Barak, approved the blacklist, implicitly and prospectively expanding the rabbinic court’s jurisdiction in a matter on which law was silent. In 2003, Barak’s opinion was reviewed by the new Attorney General and re-confirmed.

On the (liberal) face of things, it’s pretty bad. Ancient laws infringe on Israeli citizens’ rights to marriage, freedom of conscience, and privacy. But when you watch it operate up close, which has been my professional lot as the director of the Center for Women’s Justice (CWJ) where we represent people on the list and others, the picture gets even more daunting. It is more than just the state offering up a few unfortunate souls for the sake of the Jewish polity. It’s about how state secular actors like the Attorney General’s Office, the Justice Department, and the Israeli Supreme Court sacrifice, again and again, the democratic heart of the Jewish State, allowing state actors with the violent power of the state behind them to aggressively enter into our bedrooms, kitchens, and the private recesses of our consciences.

Take for example “Miriam”, a recent CWJ client who “found” herself on the blacklist after she was divorced from her husband. When the get was being arranged, her soon-to-be ex-husband told the rabbis that he suspected that she had had an affair with “Yossi”. That suspicion was enough for the presiding rabbi to put “Miriam” on the blacklist. Though she did not want to marry “Yossi”, “Miriam” wanted her name off the (offensive) list. CWJ petitioned the rabbinic court to remove her name. We claimed both that the procedure by which “Miriam” had “found” herself on the list had been flawed and that the court had no jurisdiction at all to put her on the list in the first place. Since “Miriam” had gotten divorced by agreement (i.e. the divorce was not contested), we argued, the issue of whether she had, or had not, slept with “Yossi” during her marriage was not relevant to the divorce proceeding and hence not within the parameters of the Rabbinic Court Jurisdiction Law. The District Rabbinic Court disagreed but was willing to conduct a retrial on the matter. Our client did not want to undergo such a demeaning trial— where her sex life would be discussed— and we appealed the decision to the High Rabbinic Court on both procedural and substantive grounds. When we lost, we appealed to the Supreme Court.

The Supreme Court, headed by Chief Justice Asher Grunis, was not sympathetic. The Court wasn’t willing to help out “Miriam” since she had refused to undergo a retrial. And it also wasn’t willing to accept our principled claim that the rabbinic court had no jurisdiction at all to conduct sex trials in uncontested divorced proceedings, rejecting our request that it examine the Jurisdiction Law with “strict scrutiny.” Instead, the Court deferred to the opinion of the Justice Department attorney appointed to represent the State against us on the matter. That attorney, in response to our substantive jurisdictional claim, referred the Court back to Barak’s 1976 opinion with regard to the blacklist. As for our procedural claim, the Court sent me to the negotiating table to draft regulations with the government attorneys to make sure that blacklisting and sex trials would meet the standards of fair trial and due process. I used the time, unsuccessfully, to try to convince the public servants that they should be working to protect my and my clients’ human rights, not the state’s interest. They used the time, unsuccessfully, to try to get me to lend my hand to the regulations. About 10 days ago, after the Chief Rabbi approved of the draft regulations, the Supreme Court threw out our case, leaving us a somewhat ambiguous opening to challenge the newly minted regulations with another concrete case.

Bottom line: “Miriam” is still blacklisted. We have official regulations authorizing sex trials drafted by the Justice Department and more or less ok’d by the Supreme Court. Ex-husbands are dragging their ex-wives to state rabbinic courts if they apply to marry persons that their ex-husbands suspect that they had slept with during their marriage. Rabbinic courts are hearing these cases and women, sometimes years after their divorce, are bearing the burden of disproving their, often vindictive, ex-husband’s suspicions.

Everything is wrong with this picture. It is a picture of a theocracy gone wild, financed with tax-payer money, regulated and bureaucratized, and supported by a shortsighted, unimaginative, and unfocused secular democratic arm of the state. Max Weber, Ben Gurion, John Stuart Mill, Ahad Ha’am, God Himself, and many others are all rolling over in their graves. This is not what a Jewish State should look like. And it doesn’t have to be this way. It’s time for both Israelis and those interested in Israel’s future to call on the Israeli government to set up a civil rights division in the Justice Department.

susanweiss_smSusan Weiss is the founder and director of the Center of Women’s Justice in Jerusalem and is the Estanne Fawer scholar-in-residence at the Hadassah-Brandeis Institute. This blog first appeared in the Sisterhood Blog of The Forward.

Why We Have the Lonna Kin Situation

By Rabbi Aryeh Klapper

rabbiklapplerOn March 20, Meir Kin married Daniela Barbosa in Las Vegas though he has refused his ex-wife Lonna Kin an Orthodox Jewish divorce. Kin invoked a clause of Jewish law that suspends the prohibition against polygamy if 100 rabbis agree in writing that the cause is sufficient; he claims to have a document to that effect, although it has not been released and only one rabbi – the one who officiated at the wedding – is on record publicly in favor of the remarriage. There is no precedent for permitting the remarriage without requiring the husband to unconditionally deposit a get for the wife to accept whenever she wishes. Meir Kin is said to be demanding $500,000 to authorize the writing and delivery of a get.

Fresh Ideas from HBI asked Rabbi Aryeh Klapper of the Beit Din (rabbinical court) of Boston to share his thoughts on this case.

The case of Lonna Kin legitimately outrages everyone who hears about it. How can a man who is using Jewish law to hold his wife prisoner to a dead marriage be free to marry another woman?

But legitimate outrage is not always the best teacher. If we are to prevent such cases in the future, even as we do everything we can to free Lonna Kin, we must be very careful to understand what happened and why.
So here are three takeaways:

1) The Kins did not sign the RCA prenuptial agreement. This agreement creates a support obligation while the Jewish marriage continues. Many agunah situations develop because the husband sees delaying the get as a risk-free negotiating tactic, essentially blackmail. What begins as a negotiation tactic oftens turns into spite by the end of an antagonistic civil divorce process. Signing the RCA prenuptial agreement makes delaying the get a financially risky tactic, as the husband’s liability increases each day, and generally results in the husband seeking to expedite the get.

MORAL: Friends try not to let friends get married halakhically without the RCA prenuptial agreement. I recall one of my teachers, a leading figure in American halakhah, saying to a prospective bride: “He won’t sign? Don’t marry him!”

2) The Kins initially summoned one another to different rabbinic courts (batei din).
Since contemporary batei din have widely divergent approaches to property and custody issues, it seems reasonable for each side to seek the forum that by repute is most likely to favor his or her interests. This disastrous tactic breeds distrust in the other party and in the halakhic system, generating endless jurisdictional maneuvers, and as in the Kin case, often ends up with the husband withholding the get while honestly claiming to be following the ruling of “his” beit din.

The RCA prenuptial agreement includes a document in which the parties bind themselves to arbitrate before a particular beit din. Such agreements can be signed separately as well, and this should be suggested if couples are unwilling to sign the full prenuptial agreement. It is sometimes useful under such circumstances to note that such agreements were supported by Rabbi Moshe Feinstein of blessed memory (see Igrot Mosheh Even HaEzer 4:107), universally acknowledged as the leading American halakhic authority of the late 20th Century.

Where the parties have not signed such a prenuptial agreement, it is vital that they sign such an agreement at the very outset of the divorce process.

MORAL: Friends make sure that divorcing couples arbitrate their divorce from the outset in a beit din that both parties respect and trust.

3) The Kin case is unprecedented in that a beit din allowed the husband to remarry without requiring him to unconditionally enable his first wife to extricate herself from the marriage.

How could a beit din endorse such outrageous behavior? Part of the problem is that we have no communally enforceable standards for batei din, and so it is very hard to effectively delegitimize idiosyncratic positions. Effective delegitimization would require willingness by all sides to give authority to an institution they trust, even if it delegitimizes positions they favor. Currently, I don’t believe any such willingness, trust or authority exists.

For example, many of those who would like the beit din in this case shut down were or would have been outraged when similar efforts were made in the late 20th Century to shut down a rabbinic court (the “Rackman Beit Din”) by those who saw its standards for dissolving marriages as indefensibly lax. The Rackman beit din annulled the marriages of hundreds of women, allowing them to remarry. Indeed, the rabbis organizing the demonstrations on behalf of Mrs. Kin are the linear successors of those who most strongly opposed the Rackman beit din.

We need to realize that no “systemic solution” can completely solve the agunah problem – there will always be idiosyncratic batei din that reject mechanisms used to release particular agunot, let alone broader solutions. The challenge is to marginalize such batei din so that their rejection becomes practically insignificant for the agunot and any children from their subsequent remarriages. In the absence of trust, and consequently of formal authority, this is a very difficult challenge.

MORAL: Halakhah does not exist in a vacuum, and anarchy always has a cost. We should think very hard as a total Jewish community as to how we can create responsive communal batei din that we will be willing to give genuine authority.

Rabbi Aryeh Klapper is Dean of the Center for Modern Torah Leadership and a member of the Boston Beit Din.
Rabbi Klapper will be an HBI Helen Gartner Hammer Scholar-in-Residence, researching issues pertaining to agunot, in the spring of 2015.

As part of a collaboration between the HBI’s Project on Gender, Culture, Religion and the Law and the School of Law at the School of Oriental and African Studies, supported by the Bridging Voices Program of the British Council, we present a series of invited reflections on the intersection of Gender, Religion and Equality in Public Life from activists and scholars around the world. Contributors have been asked to reflect upon the ways in which conflicts over gender, religion and participation impact their work and inform their understanding of events in the news. They are particularly asked to consider how religious norms around gender shape civil policy making, adjudication and women’s capacity to fully participate in public political and ritual life.

Learning Activism From Susan Weiss

By Lila Kagedan

marriageanddivorceAs an Orthodox teenager, committed and enthusiastic feminist and newly minted high school graduate from a small town, I found myself studying in Israel at a yeshiva for women for what I thought would be a year of the ultimate Jewish learning experience. I planned to immerse in rigorous study of Jewish texts in a beit midrash, study hall, filled with the voices of women. I excitedly anticipated this year from a very young age and set my sights on what was, to my mind, the best place to study with an unparalleled faculty in a community of what I imagined to be like-minded young women.

I also imagined, when planning for this year and carefully selecting an institution that I would find a spirit of activism, and a shared commitment among the students to discuss and engage in pressing issues relating to women and to the experience of women in the Jewish community and beyond.

This is where Susan Weiss entered my life and changed it in ways that she may not even know.

While the yeshiva provided an amazing cohort of brilliant and passionate women, it was Susan Weiss who created the activist experience for me that I had hoped to find there, that I had dreamed of, that inspired me and that truly led me into a life of activism and commitment to studying and serving women, specifically Jewish women.

It all started when I wandered into her basement office which was housed at the Yeshiva. There was a small sign on the door that read Yad L’Isha and it piqued my curiosity. I was devouring books on women and Jewish law at the time and was curious. I remember seeing Susan surrounded by stacks of papers and books sitting behind a small desk. There were posters on the walls which called for justice for agunot (women chained to dead marriages by husbands who won’t grant a religious divorce known as a get) and her phone was ringing off the hook. I timidly knocked on her door and she raised her eyes to acknowledge me while answering a phone call and writing a note on a nearby notepad, She waved me in warmly. We began talking about her work and I was immediately impressed with her energy and spirit as well as her unwavering commitment to women’s rights as human rights.

Susan so profoundly impacted my life that a main undergraduate focus of mine, both scholastically and socially, largely surrounded women and Jewish law. When I returned to Israel later to study at the Hebrew University, once more I contacted Susan Weiss to study with her and volunteer for her in a variety of research areas.

Susan gave me a vocabulary for the feelings I had long been feeling regarding the mistreatment of Jewish women and she was actually doing something about it. She didn’t lament the plight of agunot, rather she decided to work towards changing the law. This experience of Jewish study, leading to the eradication of injustice, was a revelation. Susan Weiss truly embodied the concept of “being the change we wish to see in the world” and continues to inspire me to do the work that so desperately needs to be done to fight injustice and to support women. Her passion and dedication for advocating for women motivates me daily in my work, writing and research.

Please join me in welcoming Susan Weiss to Brandeis on Thursday, Dec. 12 at 7 p.m. Come and be inspired by her as I have been.

Lila Kagedan is a research associate at the HBI Project on Gender, Culture, Religion and Law Research Associate.

HBI is proud to host Susan Weiss for a free, upcoming lecture on Thursday, Dec. 12 at 7 p.m. To learn more, please visit our website. Seating is limited, so please RSVP.

As part of a collaboration between the HBI’s Project on Gender, Culture, Religion and the Law and the School of Law at the School of Oriental and African Studies, supported by the Bridging Voices Program of the British Council, we present a series of invited reflections on the intersection of Gender, Religion and Equality in Public Life from activists and scholars around the world.  Contributors have been asked to reflect upon the ways in which conflicts over gender, religion and participation impact their work and inform their understanding of events in the news.  They are particularly asked to consider how religious norms around gender shape civil policy making, adjudication and women’s capacity to fully participate in public political and ritual life.

A New Form of Domestic Abuse in the Jewish Community

by Layah Lipsker

It always fascinated me that Jewish law allows for divorce, even without cause. With all the hoopla about finding your “bashert,” the one person who completes your soul, it would seem reasonable for the Torah to prohibit divorce. “Stick it out,” you might think the G-d of Israel would say. “The Chosen People should know a thing or two about choosing right the first time.” And yet, there is an entire Talmudic tractate called “gittin” that describes the Jewish way to get out of a marriage. At the center of the Jewish divorce ceremony is the Get, a handwritten writ of divorce given by the husband to the wife. A religious process that facilitates divorce underscores the Jewish values of self-determination, compassion and forgiveness. For most couples, a Jewish closure to their marriage can be comforting and even healing. But sadly, the legal nuances of the Get proceedings can chain some women to dead marriages and leave them vulnerable to abusive spouses. Jewish law requires the consent of both parties to proceed with divorce, but it must be initiated by the husband. In a growing number of cases, men use the threat of Get refusal as a bargaining chip in financial or custodial negotiations.

Just ask Beth, a single mom in Newton, who recently paid $30,000 to her ex-husband in exchange for her Get. Or Hannah of Marblehead, who fled her Israeli husband more than two decades ago, leaving Jerusalem with her newborn child. Her son was 17 when her husband finally granted her a Get. Despite their civil divorces, Hannah and Beth were considered legally married and could not remarry in a Jewish ceremony until receiving their Gets.

Neither of these women is Orthodox. Get refusal is a domestic abuse issue that exists in every segment of our Jewish community. But for religious women, the stakes are even higher. In the Chassidic community in which I grew up, these women cannot even date without a Get in hand. They quietly resign themselves to lives of loneliness.

For most of Jewish history, a classic “agunah” (literally, chained woman) was a woman whose husband never returned from war. Without a body, there was no proof of death, leaving the woman in a tragic state of limbo, unable to move on with her life. With a rising divorce rate in the Jewish community, women often obtain the status of “agunah” by way of Get refusal, a powerful tool in the hands of an abusive spouse. In Israel, where all marriages and divorces must go through the religious rabbinical courts, the rate of Get refusal by both Orthodox and secular men is climbing. In a recent study, one in three women divorcing in Israel is subject to threats of Get refusal and extortion. Sadly, most of these women are young mothers leaving a first marriage. Without a Get, their future is uncertain.

In my experience as an agunah activist, I see women willing to give up financial resources or their right to child support in order to escape bad marriages. The future of these women and their children is compromised, often in the name of Jewish law. As a passionate feminist and observant Jew, that is deeply troubling to me. I am grateful that the rabbinic community is joining forces with advocates to promote solutions for Jewish families. One preventative measure is the use of a prenuptial agreement, requiring a Get if there is a civil divorce. The halachic (Jewish legal) prenup was co-authored by Dr. Rochel Levmore, a rabbinical court advocate, and my partner in creating a website to support agunot and educate women on the Jewish divorce process. As a research associate at the Hadassah-Brandeis Institute, I am working with the HBI and Rabbi Aryeh Klapper of the Boston Bet Din, to create “The Agunah Taskforce of Greater Boston.”

These prenups have been upheld in civil courts in New York and Connecticut. However, not all rabbis require couples to sign the prenup, and this solution is only a preventative measure. Sadly, a systematic rabbinic solution to the agunah problem remains elusive. It is within the power of a rabbinical court to free a woman by invalidating the original marriage contract, thus eliminating the need for the Get (a process known as mekach taut). A rabbinical court can also annul a marriage without the consent of a recalcitrant spouse (hafkaat kidushin). These powers are used sparingly, however, and must meet nuanced halachic standards. Most women suffering from Get refusal have no access to halachic resolutions and some have recently turned to social media to exert pressure on their ex-husbands. In New York, two rabbis were arrested and charged with kidnapping and torturing a husband refusing to grant a Get. These rabbis were hired and paid by the wife, who hoped to finally end her own suffering. In the absence of systematic reform, women will resort to dire measures to obtain their freedom.

Total consensus on a perfect solution may be impossible in the current climate of Jewish legal debate. Nonetheless, I say, “bring it on.” The recent rise of female Torah scholarship adds much needed fuel to the halachic conversation on issues that affect women. Debate is not the problem. It is part of the solution. Our goal must be to create a large enough network such that women threatened with Get refusal will have a place to turn. We must find rabbis who will release them from their dead marriages, and defend their future children from the pernicious claim of illegitimacy under Jewish law. As a mother of four daughters, I cannot afford to stand at the sidelines of this debate. Neither can you.

Please join me on Thursday evening, December 12, at the Hadassah-Brandeis Institute in Waltham, to learn more about what is being done to support women suffering from Get refusal, and how you can help. I also invite you to join me in New York on Sunday, December 8, for a daylong conference on Women and Jewish law, sponsored by the Jewish Orthodox Feminist Alliance. If you would like more information on either of these events, please email me at layah@brandeis.edu.

Lipsker_LayahLike good Jewish women everywhere, Layah Kranz Lipsker wears many hats. She is co-founder and educational director for Chabad of the North Shore, and is currently a research associate at the Hadassah-Brandeis Institute. As a mother of six, she wears her favorite hat at home in Swampscott.

This article is reprinted with permission from The Jewish Journal.

Civil unions won’t break the chains

by Netty C. Gross-Horowitz

marriageanddivorcesmJewish marriage and divorce ceremonies in Israel and the United States, have become news items lately. Obtaining the get , a divorce document, given by the husband of his own “free will,” is handled differently in each country but the root of the problem and its eventual outcome are often the same. It’s hard to say where things are worse in these two large centers of Jewish life; one country won’t get involved in religious disputes; the other country, which views religious law as the law (in these “personal status” matters only) won’t enforce the law.

The heart of the trouble in both cases is in the interpretation of a certain biblical verse, (made for ancient gender identities and interpreted over the centuries by Orthodox rabbis and scholars,) in which only the husband can decide to terminate the marriage by handing his wife a get. (In medieval times, it was established that a wife has to accept the get.)

Continue reading (link opens to The Times of Israel).

This article is reprinted with permission from The Times of Israel.

Netty Gross-Horowitz is a journalist who worked for many years at The Jerusalem Report. She is the co-author, with Susan Weiss of Marriage and Divorce in the Jewish State: Israel’s Civil War, published in the HBI Series’ on Jewish Women and Gender, Culture, Religion and Law with UPNE.

HBI is proud to host Susan Weiss for a free, upcoming lecture on Thursday, Dec. 12 at 7 p.m. To learn more, please visit our website. Seating is limited, so please RSVP.

As part of a collaboration between the HBI’s Project on Gender, Culture, Religion and the Law and the School of Law at the School of Oriental and African Studies, supported by the Bridging Voices Program of the British Council, we present a series of invited reflections on the intersection of Gender, Religion and Equality in Public Life from activists and scholars around the world.  Contributors have been asked to reflect upon the ways in which conflicts over gender, religion and participation impact their work and inform their understanding of events in the news.  They are particularly asked to consider how religious norms around gender shape civil policy making, adjudication and women’s capacity to fully participate in public political and ritual life.

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