Civil marriage is the only way to safeguard basic human rights and these have to take precedence over other considerations .
Coercive religious marriage cannot be reconciled with human rights as it involves irreparable violations of the principles of equality and freedom of religion .
Democracy is obligated to safeguard the basic rights of its citizens, including the right to marry .Can the state promote values of the family even if in so doing it effects a limited infringement of rights.
Is the infringements of human rights resulting from the religious monopoly over marriage and divorce in Israel as Jewish state be proportionally balanced.
There are those who contend that maintaining Israel as a Jewish state is crucial. Others claim that human rights are being compromised more than necessary and propose various ways to balance the Jewish with the democratic character of the state. Three basic approaches to the solution of this challenge are discussed.
The status of the right to marry as a fundamental right is derived from international conventions to which Israel is a signatory and rulings by Israel's Supreme Court.
However, the fact that marriage and divorce are exclusively governed by religious law means that the citizens of Israel face many restrictions when they wish to realize their right to marry: restrictions relating to the identity of the potential spouse, denial of interfaith marriages, the fact that non orthodox rituals are not recognized, structural inequality which does not favor women in marriage and divorce, and more.
For the full discussion see: Ruth Gavison , position paper (p.38) , Aharon Barak.
(צפיה בדעה במקור)Article 23 in the international Covenant on Civil and Political Rights mainly focuses on the protection of the rights of the couple to freedom and equality within a marriage. States which have signed the covenant can put in place different arrangements in the domain of family law, but these must conform to the constraints dictated by human rights. The state does not have the authority to infringe human rights or supersede them regardless of the type of regime in place or the religious and ethnic identity of the couple.
Israel has signed and ratified the covenant, but tendered its reservation regarding article 23 because the religious monopoly over marriage and divorce in Israel imposes restrictions on the freedom and equality of the couple who wish to marry (or divorce).
On the other hand – the first clause in this article is about the “family group unit’s” right to protection – this right places an obligation on society and the state. In light of society’s obligation to safeguard the institution of the family, a question arises whether it ought to also protect the family from the couple?
Another question that arises in this context is what is the status of the individual’s right to a family when weighed against the rights of distinct communities to preserve their culture (which may find unique expression particularly in the way families are defined and delineated)? It seems there is tension between the rights of individuals to build a family and the rights held by the civil society amongst which the family lives. There is also a tension between individuals’ right to a family and collective right of cultural communities – to which the couple belong – to preserve their unique character.
For an expanded discussion see: Ruth Gavison
(צפיה בדעה במקור)The right to freedom of religion is founded in, among other things, Israel’s Declaration of Independence and the Universal Declaration of Human Rights. In matters of marriage and divorce this means that every human being has the right to choose between different religious rituals or choose to marry in a ceremony completely devoid of any religious aspect.
The law in Israel stands in conflict with this principle because it allows for marriage only within the framework of the religious law of the community to which the couple belongs, and does not allow for choice between different rituals or between alternative rituals within the same religion.
(For an expanded discussion see:Daniel Statman , position paper (p.41
(צפיה בדעה במקור)The right to equality as a fundamental right is founded in the international conventions to which Israel is a signatory and in the rulings of Israel’s Supreme Court.
The exclusive jurisdiction given to religious law over matters of marriage and divorce in Israel infringes the principle of equality on several counts: significant gender gaps, infringements of the rights of the couple during marriage and particularly upon leaving the framework of marriage, lack of equality between the various religious texts – those recognized but the state and those which are not, non recognition of the right of people belonging to different religions or same-sex couples to marry.
For an expanded discussion: position paper (p. 42), Ruth Gavison
(צפיה בדעה במקור)
