MESOPOTAMIA NEWS SPECIAL : NOTHING DIVERSE IN ISRAEL Gender discrimination back in vogue under Israel’s conservative judges
READ IN: עברית – Yossi Beilin November 26, 2018 – Article Summary – Israeli democracy suffered a heavy blow this week when conservative justices appointed by Justice Minister Ayelet Shaked denied a woman who cheated on her husband her half of their apartment. According to Justice Minister Ayelet Shaked, her main mission is staffing the Israeli courts with those who share her worldview: conservative, religious and pro-settler judges. This became clear at the end of a pathetic Nov. 19 press conference in which she and Education Minister Naftali Bennett announced that they had no plans to quit the coalition. She ended her remarks by saying that she will attend a meeting of the Committee for the Appointment of Judges this Friday, though none of the journalists asked what she was planning to do next. Shaked makes no effort to hide that she has sought to fill the courts — the Supreme Court in particular — with conservative and traditional justices. Her main goal is to pack the court so that it will not block the political right from annexing the West Bank when that becomes feasible. I hope that we never reach that point, and if we do, that the Supreme Court would oppose this clear violation of international law and of Israel’s international commitments.
Israeli Justice Minister Ayelet Shaked delivers a statement to members of the media, at the Knesset, Israel’s parliament, in Jerusalem November 19, 2018. REUTERS/Amir Cohen – RC111FFCA050
Both Israeli society and Israeli democracy have already suffered severely from Shaked’s appointments. Last week, the Supreme Court adopted a ruling by the Great Rabbinical Court that denied a woman who had an extramarital affair her half of the apartment she shared with her husband. The ruling runs counter to the common practice of applying civil law to the division of assets in cases of divorce.
In Israel, only religious courts rule on marital status; only rabbinical courts can validate Jewish marriages or divorces. But divorcing couples can choose between a religious or civil court for the division of assets and the court approached first will rule in the case. Even if the case is treated wholly by a rabbinical court, the separation of assets must follow Israeli civil legislation.
In the case at hand, two justices supported the rabbinical ruling, with one justice dissenting. These two judges, David Mintz and Alex Stein, were appointed by Shaked (who by law heads the Committee for the Appointment of Judges). As such, she bears personal responsibility for the enormous damage caused by this ruling to the lives of free people in Israel. Nevertheless, I still want to believe that she did not take a strange ruling like this into consideration in her frenzied rush to appoint conservative justices. I want to believe that she clenched her fists in frustration when she saw the disgraceful outcome of her hard work. Still, it will be hard to turn back the wheel.
There is just one democratic country in the entire world in which all legislation pertaining to marriage and divorce are based on religious law. That country is Israel. It is inherently detrimental to the rights of women (since religious laws were written by men who, for example, considered a woman’s infidelity to be a grave crime, whereas infidelity by a man is not a sin at all, unless his transgression involves a married woman). Until now, the Supreme Court has used its authority to apply civil law to the division of assets in divorce cases. Over the years, in a concerted effort, the court was able to reduce the scope of this chilling discrimination against women.
For example, a ruling from almost a quarter century ago, Bavli vs. High Rabbinical Court, determined that when dealing with the division of assets in cases of divorce, rabbinical courts must base their decision on civil law exclusively. Another ruling determined that even though assets acquired by one of the partners before their marriage would not normally be divided in divorce proceedings, such properties would be divided between the couple if the plaintiff can prove they were clearly intended for use by both.
By knocking down these two rulings last week, the Supreme Court gave religious courts wide leeway to reinstitute discrimination against women.
The case in question involved a couple that had been married for 30 years. For the past 20 years, they lived together in a home built on a plot of land that the husband inherited. It doesn’t take judicial expertise to know that if a couple gets married, has children and lives together for decades, their original intent was to share their property. Today, in the 21st century, the fact that one of the partners had an extramarital affair is no business of the state. It is an issue for the couple to deal with. The cheated-on partner could decide to forgive or to end the marriage. At that point, the offended partner could sue for divorce. What that partner cannot do is take revenge on the spouse, deny the spouse a roof or even an equitable share of their common property.
Dissenting Supreme Court Justice Yitzhak Amit followed the Bavli precedent and ruled that the Great Rabbinical Court’s decision was based on religious law and therefore violated the Supreme Court’s ruling that civil law alone would be the basis for the division of assets. Amit made it clear that a decision that accepted the rabbinical court’s ruling could lead to women being subjected to tracking, even stalking, in an effort to prove that they cheated on their husbands in order to deny them their share of jointly held property.
The rulings of the other two justices are extremely problematic. After prevaricating at length, Mintz reached the conclusion that while the woman’s infidelity should not affect her rights to any commonly held assets, the rabbinical court’s ruling was based on other considerations rather than her infidelity per se.
Stein took the issue further, returning us to the dark days in which according to Jewish law, an act of infidelity would be grounds to deny women rights to jointly held property, since property obtained by her husband before she married him is a kind of prize that is awarded to her as a result of her marriage. Such an award, he continued, should not be granted to women who cheat on their husbands.
Is there anything that can be done about this, apart from separating religion and state? This will not happen, given the structure of the coalition and Prime Minister Benjamin Netanyahu’s dependence on ultra-Orthodox parties to preserve his majority. One option is to pass new legislation encoding the Bavli ruling into law. That way, there would be no question of the rabbinical courts using religious law when dividing a couple’s assets in divorce proceedings. This point-specific solution, however, would run into countless problems. Regardless, the religious parties would put up a fierce fight against any such move.
A second option would be easier and more inclusive: increase the number of justices once the next government is formed, allowing the appointment of more liberal justices. It could even be done as a provisional measure to restore a little light in these benighted times.