Al-Jazeera – 28 February 2014
A one-year-old baby is at the centre of growing controversy that has pitted the rights of individual Israelis to follow their conscience against the formidable powers of the country’s Orthodox rabbinical establishment.
The hold of the religious authorities over Israelis’ private lives has been thrust into the spotlight after a rabbinical court ruled that a Jewish woman, identified only as Elinor, must circumcise her son against her wishes. She has been ordered by the rabbis to pay a fine of $140 a day until the procedure is carried out. Following public disquiet, the judgment was frozen, pending a hearing before the country’s supreme court.
There is no law requiring circumcision, but the overwhelming majority of Israeli Jewish parents follow the traditional practice of inviting a mohel, or circumcisor, to remove the foreskin of a newborn son. Rabbis regard the procedure as a commandment from God.
The case, which is likely to fuel tensions between the country’s secular and religious populations, highlights the lack of civil institutions in Israel regarding personal status matters such as marriage and divorce. It also comes in the wake of recent moves in various European countries to ban ritual circumcision, provoking an outcry in Israel that Jewish identity is under attack.
According to lawyers involved in the case, it is the first time the rabbinical authorities have sought to impose a ruling on circumcision, and would constitute an extension of their powers into a new area of Israeli Jews’ lives.
Organisations promoting religious freedom hope that the supreme court, which is due to hear a petition on the case, will push back against the entrenched powers of the rabbis.
“It is quite astounding that in 2014 there is a still a battle over the ABCs of democracy in Israel,” said Uri Regev, the director of Hiddush, a movement lobbying for religious freedom and equality in Israel. “The country’s core identity – whether it should be a state governed by secular laws or a theocracy – is still undecided.”
‘Monopoly of power’
At the founding of Israel in 1948, Israel’s secular leaders conceded a deal known as the status quo agreement. According to Mickey Gitzin, director of Israel Hofshit, a grassroots group lobbying for the separation of religion and state, the agreement gave the religious authorities a “monopoly of power” to interfere in many areas of Israeli Jews’ lives.
Only Orthodoxy, a very strict interpretation of Judaism, received official status, while other streams, such as the more liberal Reform movement, which dominates in the United States, were sidelined.
Two Orthodox chief rabbis and their officials have exclusive powers over marriage; divorce; burials; conversion procedures; food inspection (kashrut); enforcing the closure of businesses during the Sabbath; and controlling the curriculum of religious schools, which are now attended by a majority of Jewish children.
Officials belonging to 170 religious councils based in population centres enforce these powers at a local level. Most controversially, rabbinical courts were incorporated into the justice system with sole jurisdiction over marriage and divorce proceedings.
Palestinian Christians and Muslims, comprising about a fifth of Israel’s population, are subjected to similar courts run by their own religious authorities.
According to estimates, about one in four Israeli Jews prefer to avoid rabbinical supervision of their marriage and instead travel abroad for the ceremony, typically to Cyprus or Prague. The wedding is then registered on their return.
In divorce cases, women often find themselves subject to religious traditions deemed degrading by many. One of the most controversial is the exclusive power of the husband to decide whether to give his wife a “get” – a divorce agreement. Some women spend years waiting for a husband to issue a get, leaving unable to remarry.
Responsibility for related marital issues such as alimony, child custody and child support is shared between the religious and civil courts. In practice, a chaotic system has emerged known as the “jurisdiction race”, in which the religious or civil court gets to decide a case based on which one is approached first. Typically, women choose the civil courts while men prefer the religious courts.
In the circumcision case, the rabbinical court judges have claimed an additional right: to force circumcision on a child as part of a divorce settlement. During the proceedings, the father raised his concern that the couple’s year-old son had not been circumcised.
Amnon Givoni, a lawyer from the justice ministry’s legal aid department, which is helping to represent Elinor, said the case was the first of its kind. “We know of no other cases in Israel where two parents have disagreed about circumcision as part of a divorce proceeding and the rabbinical courts have stepped in to make a ruling. It’s unprecedented.” Givoni added that the justice ministry’s position was that jurisdiction on an issue such as circumcision should reside with the family courts, part of the civil judiciary, not rabbinical judges.
According to religious practice, the circumcision ceremony – or brit milah – is carried out when a baby is eight days old. If performed later, the circumcision is usually considered a medical procedure.
Elinor told the rabbinical court she originally did not allow the brit milah because her son was born prematurely and she was concerned it would be dangerous. Later, she decided she did not want the procedure carried out because of the harm it would cause the baby. “I don’t believe in religious coercion,” she told Israeli TV in November, when the case was first publicised. Her face was not shown.
Rabbi David Golinkin, a professor of Jewish law at the Schechter Institute, said the circumcision case was complicated, because in Jewish religious law the obligation to carry out the brit milah rested with the father. At Elinor’s appeal in November, a panel of three rabbis said there was a religious obligation for the couple to circumcise their son, adding: “If the mother is given the opportunity to prevent the circumcision… we could find ourselves facing a flood of cases like these.”
In February, Israel’s attorney general, Yehuda Weinstein, issued an advisory opinion in which he said the rabbinical court had “exceeded its authority”. He urged the supreme court to overturn the rabbis’ decision. Givoni said the family court might reach the same decision as the rabbinical judges but that its ruling would be based on the best interests of the child, not religious considerations.
Fears of anti-Semitism
Emotions over the case have been heightened by broader arguments about the legitimacy of circumcision, following a ruling by German courts in 2012 that the practice caused “bodily harm”.
At Elinor’s appeal hearing, the judges made explicit reference to the growing opposition in Europe and the United States to circumcision: “The public in Israel stands united against this phenomenon, seeing it as another aspect of the anti-Semitic acts that must be fought.”
The German ruling has been widely seen in Israel and elsewhere as an attack on Jewish identity. One rabbi in Berlin was quoted at the time as arguing that the ruling marked “perhaps the most serious attack on Jewish life in Europe since the Holocaust”. A short time later, Germany passed a circumcision law that allows for the practice – but only with strict safeguards and if carried out as a medical procedure.
In recent weeks, Israeli legislators and European rabbis have taken their arguments to European legislative bodies, fearful that widespread sentiments in Germany may soon spread further.
Arik Ascherman, a rabbi with the liberal Reform movement who is a leading member of Rabbis for Human Rights in Israel, said circumcision was a sensitive subject for all Jewish parents. “Even as a rabbi, I can see that circumcision is illogical and tribal. But it is burnt into our hard drives. It is an essential part of Jewish identity – whether you see it as a commandment from God or simply a cultural thing to do.”
Nonetheless, Ascherman said he was against rabbis in Israel forcing people to do anything against their principles, whether in relation to circumcision, marriage or divorce. “What is important is that there is choice. There should not be a situation in Israel where somebody is coerced to follow a religious procedure against their wishes.”
‘Enemies of Jewish people’
However, Reform rabbis such as Ascherman are under increasing attack both from senior politicians and from the Orthodox rabbinate as they try to challenge its powers. David Rotem, chairman of the Israeli parliament’s constitution, law and justice committee, sparked uproar this month by calling the Reform movement “another religion”, and adding that its members were “not Jewish”.
He was backed by Uri Maklev, of the Orthodox religious party United Torah Judaism, who alleged that the Reform movement were “the enemies of the Jewish people”.
Opinion polls conducted by Hiddush show about two-thirds of Israeli Jews support stripping the rabbinical authorities of most of their powers. A map produced by the same organisation ranking freedom of marriage around the world classified Israel with the lowest rating possible.
Mickey Gitzin, of Israel Hofshit, said resentment against the rabbis was particularly strong among the more than one million Russian speakers who immigrated to Israel in the 1990s following the collapse of the Soviet Union. The Jewishness of hundreds of thousands of them is not recognised by the rabbinical authorities, making it difficult for them to marry in Israel.
“It’s really an insane situation,” said Gitzin. “Also, no women are represented in the rabbinical courts or most of the religious institutions. These are state-funded institutions. It’s outrageous.”
Regev, of Hiddush, said he was disturbed by the fact that a party such as Jewish Home, which believes Israel should be governed by halakha, or religious laws derived largely from the Torah, was in a powerful position in the government. The party’s leader, Naftali Bennett, is the economy minister.
“Bennett’s party does not accept the legitimacy either of the state’s secular laws or of the civil judiciary. It is using its position in the government to influence the state’s character, to turn it into a theocracy.”
Rabbi Golinkin said religious coercion was a bad idea, pointing out that two religious injunctions on Jews – circumcision and the day-long fast of Yom Kippur – were the most widely observed in Israel precisely because there was no legal enforcement:
“You can be sure that if Israel allows coercion on circumcision, then tens of thousands of couples will vote with their feet and refuse to do it.”