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Synopsis

Democratic trumps Jewish

Democratic trumps Jewish

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 .

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Jewish trumps Democratic

Jewish trumps Democratic

Maintaining exclusivity religious marriage is the only way

to both guarantee the continuity and cohesion of the Jewish people,

and to safeguard the Jewish character of the state.

 

Proponents: Rabbi Eli Ben DahanRabbi David Stav

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Balancing  the Democratic and the Jewish

Balancing the Democratic and the Jewish

There are three primary variations of how to balance the Jewish and democratic marriage aspects :
Preserving the existing religious course , while allowing for a new civil marriage parallel option.
Introducing a wider choice between a variety of Jewish marriage ceremonies and Interpreting the spirit of Jewish tradition in a way that embodies democratic values.

 

Proponets: Shahar Lifshitz, Shay ZarchiSusan WeissWestreich and Shifman (p’ 38)

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sources

Summary

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.

For an expanded Summary

The Edited Issue

  • Menachem Shechter

    The source of the current system governing marriage and divorce in Israel is the Ottoman law (the “Millet system”), which… The source of the current system governing marriage and divorce in Israel is the Ottoman law (the “Millet system”), which was continued by the British Mandate and adopted by the State of Israel upon its establishment. According to this system, when it comes to matters of marriage and divorce, every resident of the State of Israel is governed by his/her respective religious laws and religious institutions. In the early nineteen fifties, when Israel’s Rabbinical Court Jurisdiction (marriage and divorce) Law was passed (which applied personal status law to Jewish marriage and divorce), it was considered an appropriate compromise between different approaches within the Jewish public and a critical step in averting a rift within the Jewish people, as well as a means to prevent Jews from marrying people from other faiths. In addition, the practical difficulties that resulted from the passing of this law was limited: the number of people who could not marry under religious law was small and various ways to deal with the resulting practical and ideological difficulties were found. In the past few decades, various proposals to change the status quo have been rejected. Primary justifications for rejecting these proposals include: concerns for an increase in cases of bastardy, the need to safeguard the Jewish character of the state as it was defined in the “status quo”, strengthening cohesion and unity between various Jewish groups and the need to prevent intermarriage. For a more detailed discussion see position paper, p.19. (צפיה בדעה במקור)
  • Menachem Shechter

    Present violations of human rights 

    Present violations of human rights 

    (צפיה בדעה במקור)
  • Menachem Shechter

    The status of the right to marry as a fundamental right is derived from international conventions to which Israel is…

    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)
  • Moderator

    Article 23 in the international Covenant on Civil and Political Rights mainly focuses on the protection of the rights of…

    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)
  • Menachem Shechter

    The right to freedom of religion is founded in, among other things, Israel’s Declaration of Independence and the Universal Declaration…

    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)
  • Menachem Shechter

    The right to equality as a fundamental right is founded in the international conventions to which Israel is a signatory…

    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)
  • Menachem Shechter

    Promoting the values of the collective while infringing the rights of the individual

    Promoting the values of the collective while infringing the rights of the individual

    (צפיה בדעה במקור)
  • Menachem Shechter

    Serious and widespread infringements of human rights in the service of important cultural goals cannot be justified. In accordance with this,… Serious and widespread infringements of human rights in the service of important cultural goals cannot be justified. In accordance with this, even if religion’s monopoly over marriage and divorce contributes to the Jewish character of the state, there is no justification for the pervasive violation of human rights that it causes, and it must be changed. .(For an expanded discussion see: position paper (p.44 (צפיה בדעה במקור)
  • Menachem Shechter

    The State is permitted to favor certain forms of marriage, so long as it also upholds rights for other kinds… The State is permitted to favor certain forms of marriage, so long as it also upholds rights for other kinds of couples (common-law couples). The article in full. (צפיה בדעה במקור)
  • DR. Meir Buzaglo

    The institution of marriage is not private but public and therefore reflects society’s perspectives on marriage and the family. The institution of marriage is not private but public and therefore reflects society’s perspectives on marriage and the family. (צפיה בדעה במקור)
  • Menachem Shechter

    There is no justification for even the slightest infringement of individual rights in the service of values promoted by the… There is no justification for even the slightest infringement of individual rights in the service of values promoted by the State. For an expanded discussion (צפיה בדעה במקור)

Main Sources