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Unchaining the Agunot: Enlisting the Israeli Constitution in the Service of Women's Marital Freedom

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Unchaining the Agunot: Enlisting the Israeli Constitution in the Service of Women's Marital Freedom Unchaining the Agunot: Enlisting the Israeli Constitution in the Service of Women's Marital Freedom Karin Carmit Yefett INTRODU CTION ............................................................................................... 442 I. JEWISH DIVORCE, ISRAELI-STYLE: A CRITICAL ANALYSIS ......................... 444 A. Asymmetrical Divorce Grounds and Their Biased Application .... 445 B. Unequal Religious Alternatives Faced by a Chained Spouse ....... 447 C. Unequal Secular Alternatives When Religious Divorce Is U navailable .................................................................................. 450 D. Progress in the New Millennium? Proposals Calling for Divorce R eform .......................................................................... 452 II. THE RISE OF THE ISRAELI CONSTITUTIONAL ENTERPRISE ........................ 453 A. The Birth of the Constitution: A Judge-Created Constitutional R evolution .................................................................................... 4 54 B. The Content and Application of the Constitution: Scope and B oundaries ...................................................................................455 C. The Benchmarks of Israeli Constitutional Review ........................ 459 III. VIEWING DIVORCE LAW THROUGH A CONSTITUTIONAL LENS ............... 461 A. The Right to Marital Freedom: Outlines of its Constitutional P rofi le .......................................................................................... 4 6 1 B. Constitutional Dimensions of the Current Divorce Regime .......... 473 1. Limitations on the Interpretive Techniques of Divorce Law and the Adoption of New Religious Doctrines ...................... 474 " For all the agunot, victims of miscarriages of justice, who still seek a remedy. Our collective soul is marred by this injustice. J.S.D. Candidate, Yale Law School; LL.M., Yale Law School; LL.M, Bar-Ilan Law School, summa cum laude; LL.B., Bar-Ilan Law School, summa cum laude. This work is dedicated to my friend and mentor, Israeli Supreme Court Justice Jacob Turkel, who has devoted his life to combating human suffering and who holds the plight of the agunot close to his heart. I would like to extend my deep gratitude to Professors Akhil Amar and James Whitman for their thoughtful comments, and to Professor Shahar Lifshitz, for his seminal scholarship and contribution to the development of Israeli family law in general and to this piece in particular. I am also indebted to former Chief Justice Aharon Barak for stimulating my research and for his patience. Special thanks to Kristin Macleod-Ball and Mark Shawhan for their untiring assistance and dedication, and to Frieda Cohen, of blessed memory, and Benjamin Cohen, for reading and commenting on previous drafts of this piece. Last but not least, I thank the ISEF Foundation, whose generosity, support, and ideals made this work possible. Copyright © 2009 by the Yale Journal of Law and Feminism Yale Journal of Law and Feminism [Vol. 20:441 2. New Legislative Tactics Aimed at Alleviating Women's M arital Plight ......................................................................... 475 C. Constitutional Assessment of Potential Developments .................. 478 1. The Gavison-Medan Covenant: A (Re)Call for Fault-Based D iv orce ..................................................................................4 79 2. The IDI Model: Experimentation with a No-Fault Concept of D ivorce .............................................................................. 484 3. The Ministry of Justice Model: A Lenient No-Fault V ariation ................................................................................ 494 C O N C LU SIO N ................................................................................................... 50 1 INTRODUCTION Throughout Israel's turbulent history, not a week has gone by without her being a focus of world attention.' The situation of Israeli women, however, has rarely captured the spotlight. In most fields of law, Israeli women enjoy a strong suite of rights and an egalitarian status compared to their sisters in other nations. 2 However, in the domain of divorce law, women are subject to a blatantly discriminatory regime, in which their strictly-limited right to obtain a divorce is grossly inferior to the corresponding right held by Israeli men. Israeli law accords Orthodox rabbinical courts exclusive control over marriage and divorce, and those courts in turn grant full control over divorce to men.3 No one-not the government, not the courts, not even a rabbi-is 1. Roger 1. Zakheim, Israel in the Human Rights Era: Finding a Moral Justificationfor the Jewish State, 36 N.Y.U. J. INT'L. L. & POL. 1005, 1031 (2004). 2. See RUTH HALPERIN-KADDARI, WOMEN IN ISRAEL: A STATE OF THEIR OWN 20, 24-65 (2004); Yoav Dotan, The Spillover Effect of Bills of Rights: A ComparativeAssessment of the Impact of Bills of Rights in Canada and Israel, 53 AM. J. COMP. L. 293, 311-16 (2005); S.I. Strong, Law and Religion in Israel and Iran: How the Integration of Secular and Spiritual Laws Affects Human Rights and the Potentialfor Violence, 19 MICH. J. INT'L L. 109, 160-62, 183 (1997). 3. The Israeli courts, unique among modem legal systems, combine both civil and religious institutions. While the civil courts have jurisdiction over most legal questions, religious courts retain exclusive jurisdiction over certain areas of family law. Israelis must thus move between two completely different judicial systems, depending on the legal issue that brings them into court. For Jews, the religious courts, known as the rabbinical courts, retain exclusive jurisdiction over matters of marriage and divorce. See The Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 1953, S.H. 165 arts. 1-2. The civil system of family courts has parallel jurisdiction to handle questions of custody, child support, property distribution, and all matters not related to the narrow issue of getting married or divorced. See The Family Court Law, 1995, S.H. 393 arts. 1, 3-4; see also Dan Arbel & Joshua Gaifman, The Family Court Act 1995, 43 HAPRAKLIT 431 (1997) (providing an instructive overview of the family court and its functions). The concurrent jurisdiction has produced a "race to the courthouse" phenomenon, whereby men try to raise issues in the rabbinical court, which is generally more favorable to men, while women try to win jurisdiction in the family court, which is generally a more women-friendly court. Menashe Shava, The Relationship Between the Jurisdictionof the Family Court and the Jurisdiction of the Rabbinical Court, 44 HAPRAKLIT 44 (1998). The rabbinical court system consists of trial courts (regional rabbinical courts) and an appellate court (the High Rabbinical Court). For a general discussion of the rabbinical court's origins, jurisdiction, 2009] Unchaining the Agunot authorized to divorce a couple except for the husband. The judicial act of divorce is not constitutive, but merely declarative-the rabbinical court can merely declare that the husband must divorce his wife, and in limited instances, can apply coercive measures in hopes of persuading the husband to grant the divorce.4 This leaves wives estranged from their husbands yet unable to remarry due to their legal inability to terminate their present marriages. Such 5 women are called agunot: "chained" wives. While divorce law has remained stagnant, the opposite is true of Israeli constitutional law. For nearly half a century, Israel had no constitution. In the last decade of the twentieth century, however, the nation experienced a constitutional revolution. The Supreme Court, by means of a decision in an ordinary case, transformed existing legislation and effectively created a formal constitution with American-style judicial review.6 Thus, while other nations may debate the proper interpretation and scope of their constitutions-Israel also debates whether its Constitution actually exists. Its lack of publicity and prominence notwithstanding, the new Constitution has swept through Israel's legal landscape, leaving a substantial mark throughout Israeli law, with a notable exception: divorce law. 8 Though the field administration, and procedures, see HALPERIN-KADDARI, supra note 2, at 233; M. Chigier, The RabbinicalCourts in the State of Israel, 2 ISR. L. REV. 147 (1967); and Natan Lerner, Religious Liberty in the State of Israel, 21 EMORY INT'L L. REV. 239, 254-55 (2007). On the Orthodox hegemony in Israeli law, see Gidon Sapir, Law or Politics: Israeli ConstitutionalAdjudication as a Case Study, 6 UCLA J. INT'L L. & FOREIGN AFF. 169, 184-87 (2001). 4. HALPERIN-KADDARI, supra note 2, at 236-37; J. David Bleich, Modern Day Agunot: A Proposed Remedy, 4 JEWISH L. ANN. 167, 171 (1981); see Heather Lynn Capell, After the Glass Has Shattered: A ComparativeAnalysis of Orthodox Jewish Divorce in the United States and Israel, 33 TEX. INT'L L.J. 331, 337 (1998); Erica R. Clinton, Chains of Marriage:Israeli Women's Fightfor Freedom, 3. J. GENDER RACE & JUST. 283, 289 (1999). 5. This term was originally used for galley slaves whose arms and legs were bound together (the singular of agunot is aguna). For the definition of aguna, see M. Chigier, Ruminations Over the Agunah Problem, 5 JEWISH L. ANN. 207, 210-11 (1981); and Clinton, supra note 4, at 295-96. See also Mark Washofsky, The Recalcitrant Husband: The Problem of Definition, 5 JEWISH L. ANN. 144 (1981) (noting that in the history of Jewish law, the problem of the agunot has been the greatest challenge
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