Civil regulation of religious marriage from the perspectives of pluralism, human rights, and political compromise

INTRODUCTION In many areas, Israeli law is modern, liberal, and Western. An exception to this is marriage and divorce law, which is subject to the authority of religious courts and religious law; civil marriage and civil divorce do not exist. Israeli secular law has developed certain civil alternatives to marriage that grant the couple some rights similar to those vested in married couples, but these solutions are not comprehensive, and many problems remain. This state of affairs has given rise to sharp liberal criticism focusing on human rights and on the liberal values of equality and freedom, and to proposals for the establishment of civil marriage. The present chapter addresses the debate in Israeli legal literature and the public discourse on the nature of civil marriage to be established. Currently, the discussion is divided between two polar views. According to one approach (the exclusively civil track), once instituted, the civil option would be the only one for marriage and divorce, and the civil marriage and divorce law would apply equally to all Israelis. According to a second approach (parallel tracks), two separate tracks would be established, a civil one and a religious one, both recognized as state systems. Couples who married in the civil track would fall under the jurisdiction of the civil courts, whereas couples who married under religious law would be subject to the jurisdiction of the rabbinic courts and religious law in matters of marriage and divorce. I consider this debate from three liberal perspectives: 1. a liberal-pluralist perspective that (under certain conditions) regards an increase in the number of frameworks for establishing spousal relationships as a liberal value; 2. an outlook that seeks to protect the right to religious marriage and divorce for those who consider religious marriage and divorce their only legitimate option; and 3. a perspective that recognizes the non-liberal, national-religious arguments of those who support a track for religious marriage, and explores the ability of liberals to reach political compromises with those who do not share their liberal values.