One author noted of Revolutionary Turkey that “The reality facing the nation building elite was a climate where even the most anti-Islamic minded reformists had to negotiate with the representatives of a people who very much defined themselves around their religion.” NOTEREF _Ref231205810 \h \* MERGEFORMAT This statement resonates in Israel, but perhaps in application to both camps – the religious and the non-religious – rather than to only one or the other. Those individuals not belonging to the Orthodox Jewish faith find themselves in a nation founded in large measure on Orthodox Jewish identity. While seeking basic religious and human rights of their own, they must therefore also be mindful and respectful of the predominant religious tradition, to “negotiate” through thoughtful discourse. On the other hand, those political and religious leaders belonging to the Orthodox Jewish faith may also need to recognize the realities of Israeli society as it currently is—realities that may require some change—and also engage in thoughtful discourse to address those realities within the legal system.
The Turkish provision for civil marriage in the 1926 Code allowed for an orderly system that could regulate important aspects of society affected by family law, such as taxes, government aid, legitimacy, etc., while still leaving the predominant faith free to continue according to its tenets and precepts. The added layer of civil marriage did not destroy the religious identity of the people but simply codified rules of family law seen to be necessary for a healthy and orderly society, such as a minimum age of consent. The religious customs and rites surrounding marriage were left untouched and those customs and rites continued to be practiced and embraced by the people. Having observed the Turkish experience, Israeli leaders might work to develop a system of family law that will provide order and regulation for the thousands of individuals and their children who are currently excluded by the law, but which at the same time will respect and protect the religious freedoms, traditions, and identity of Israeli Orthodox Jews. We do not presume to prescribe the content of such a system of law, but rather to point to the great need for discourse among those who know the laws, culture and dynamics of Israel well and who are in a position to prescribe effective legal solutions.
There may be concern on the part of some about the “slippery slope” phenomenon – the fear that providing for civil law marriage will open the door to a host of unwanted results. However, the Turkish model can be instructive on this point as well. As mentioned, the 1926 Code proved to be stable but moldable. Revisions to the law were rejected as unnecessary or undesirable for approximately 70 years after the law was established. Only when parliament found proposed changes necessary and acceptable was the law molded to fit the need. Until that time, the Turkish government opted to let society transition and adjust to the new law, making ancillary laws and provisions to aid in that process of transition. On the other hand, because the Code was indeed amendable, the Turkish government could arguably have made larger changes and revisions to the law had it discovered that the law was not serving Turkish society well or producing the results it was expected to produce. The Turkish example illustrates that even a move to an exclusively secular system for regulating marriage and divorce need not be disruptive of religious identity and tradition. No doubt, there was a shift in power, away from the religious courts to the civil, but this did not bring with it a marked decline in religious identity or affinity. As members of the various parts of Israeli society continue to actively engage in the public discourse and the development of the law, this discourse can act as a guiding hand upon the law, ensuring that Jewish culture and identity are respected within the laws while at the same time allowing basic religious and human rights for others.
IV. United Kingdom
A. A Brief History and Legal Framework for Marriage and Family Law in the United Kingdom
Until the mid 1700s, marriage law fell under the exclusive jurisdiction of the Church of England and its ecclesiastical courts. NOTEREF _Ref231205810 \h \* MERGEFORMAT In medieval times, a marriage was considered to have validly taken place when two people who were legally free to marry uttered wedding vows. NOTEREF _Ref231205810 \h \* MERGEFORMAT Observing the ease with which a marriage could be formed, the Church determined to better regulate marriage by imposing several formalities. NOTEREF _Ref231205810 \h \* MERGEFORMAT Publicity of marriage was considered “necessary to the order and good government of society.” NOTEREF _Ref231205810 \h \* MERGEFORMAT New rules therefore required that marriage vows be made in public and be solemnized by a priest. NOTEREF _Ref231205810 \h \* MERGEFORMAT However, many evaded this rule, opting instead for a “clandestine marriage.” NOTEREF _Ref231205810 \h \* MERGEFORMAT One significant reason for clandestine marriage was religious objection. That is, since marriage fell under the province of the Church and therefore only Anglican clergymen were authorized to perform marriages, individuals belonging to other religious groups were compelled to seek clandestine marriages if they wished to be married under the rites of their own faith. NOTEREF _Ref231205810 \h \* MERGEFORMAT Others who wished to avoid public marriage included domestic servants, who risked dismissal if their marriage was known to their master, and also individuals whose union was discouraged or forbidden because of differences in age, social status, religion, or for other cause. NOTEREF _Ref231205810 \h \* MERGEFORMAT Many simply sought to avoid the fee required for public marriages. NOTEREF _Ref231205810 \h \* MERGEFORMAT
These widespread clandestine marriages were opposed by many, including wealthy parents who feared undesirable channeling of property and inheritance, clerics who stood to lose the income they could gain by performing marriages, and lawmakers who pointed to the difficult tangles in property rights that would result from clandestine marriages. NOTEREF _Ref231205810 \h \* MERGEFORMAT Efforts were made again and again to pass a law that would restrain clandestine marriage. All proposals were defeated, however, until the Marriage Act of 1753, or Lord Hardwicke’s Marriage Act. NOTEREF _Ref231205810 \h \* MERGEFORMAT This Act constituted the first ever intervention of the state into marital regulation. NOTEREF _Ref231205810 \h \* MERGEFORMAT
The Marriage Act of 1753 required that “with an exception for persons professing to be Quakers or Jews, all marriages must be celebrated in a parish church or chapel of the Church of England within prescribed daylight hours, after the required publication of banns NOTEREF _Ref231205810 \h \* MERGEFORMAT and in accordance with the form of words found in the Office of Matrimony in the Book of Common Prayer. Entries had to be made in an official parish register. Thus, Protestant dissenters and Roman Catholics were compelled to marry according to the Anglican rite, or not at all.” Clandestine marriages were no longer valid under the Act.
As one might expect, the Act did not escape criticism. Some predicted that the law would cause “flight from marriage, declining population, increasing fornication and illegitimacy.” NOTEREF _Ref231205810 \h \* MERGEFORMAT Others pointed to the confusion it caused by putting into question the validity of many existing marriages. NOTEREF _Ref231205810 \h \* MERGEFORMAT Those not belonging to the Church of England opposed the virtual monopoly given to the Church by the Act. NOTEREF _Ref231205810 \h \* MERGEFORMAT The wealthy simply continued to evade the law by traveling outside of England to be married, a practice that continued for nearly a century until legislation was passed to make such marriages invalid unless inconvenient requirements were met. NOTEREF _Ref231205810 \h \* MERGEFORMAT
It was not until 1836, however, that opposition to the law arising from several fronts culminated in the passage of a new Act. The impetus of this change stemmed partly from the growth of the Methodist and Baptist congregations, joining with other groups, such as Protestant non-conformists, Roman Catholics, and those with no religious affiliation, none of whom were allowed exemption from the law. NOTEREF _Ref231205810 \h \* MERGEFORMAT The result of combined lobbying on the part of these groups was the Marriage Act of 1836, which still serves as the fundamental framework of marriage law in the United Kingdom today. NOTEREF _Ref231205810 \h \* MERGEFORMAT
The Marriage Act of 1836 left intact the provisions for Anglican marriages for those who desired to be married within that religious tradition, while allowing others to marry according to the rites of their own faith upon obtaining certificate and license from civil registrars – a newly formed office. NOTEREF _Ref231205810 \h \* MERGEFORMAT Secular marriages were also made available for those with no religious belief. With the passage of this Act “citizens had a choice of religious or civil marriage, and the registration of marriages became a civil act, rather than an ecclesiastical exercise.” NOTEREF _Ref231205810 \h \* MERGEFORMAT
The United Kingdom currently recognizes four types of marriage ceremonies under the Consolidated Marriage Acts of 1949-1986, which build upon the framework of the Marriage Act of 1836. NOTEREF _Ref231205810 \h \* MERGEFORMAT The first is a Church of England ceremony, the second are Jewish and Quaker ceremonies conducted according to the rites of those faiths, the third are ceremonies of religious groups other than the Church of England, Jewish or Quaker, and the fourth are secular ceremonies. In addition to this provision for recognizing four types of marriages, marriage law in the United Kingdom also specifies other basic elements required for the validity of marriage. These include issues of age, mental state of the individuals, consanguinity, and current marital status (for purposes of prohibiting bigamy).
Though the state has made provision for those not belonging to the Church of England as well as those without any religious affiliation to marry, the Church of England, as the established church, still holds a privileged position in the nation’s marriage law. The authority of the clergy of the Church of England to marry is equal to the authority of superintendant registrars. To illustrate, a couple being married civilly must be married by a superintendant registrar and must also have a registrar present to register the marriage. NOTEREF _Ref231205810 \h \* MERGEFORMAT A couple marrying in a religious ceremony other than in the Church of England (or Church in Wales) may be married by an authorized officiator of their own faith, but must still arrange to have a registrar present to register the marriage. NOTEREF _Ref231205810 \h \* MERGEFORMAT Couples of both civil marriages and non-Anglican religious marriages are also required to give formal notice, in person, to the superintendent registrar in the district(s) in which they reside. NOTEREF _Ref231205810 \h \* MERGEFORMAT A couple being married in the Church of England, however, has no need to involve a superintendent registrar or registrar at any point in the proceedings. NOTEREF _Ref231205810 \h \* MERGEFORMAT
An additional illustration of the Church of England’s continuing privileged position in British marriage law are the rules concerning the venue at which marriages take place. Civil marriages must take place at a registrar’s office. A civil marriage can also be held at another approved premise, such as a stately home or hotel, but may not be held at a location that is in any way religious. NOTEREF _Ref231205810 \h \* MERGEFORMAT A religious ceremony not of the Church of England must take place in a building registered both as a place of worship and as a place approved for the solemnization of marriage, and the state provides specific rules and procedures on qualifying and registering for both statuses. NOTEREF _Ref231205810 \h \* MERGEFORMAT The venue for marriages in the Church of England, however, is legislated and determined internally by the Church of England itself. Describing the most recent legislative process in its own words, the Church of England stated:
The Church of England has been considering for some time possible alternatives to the calling of banns and widening the choice of places in which couples can marry. The Marriage Law working group was established by the Archbishops Council in October 2002 following the debate in the General Synod in July 2002 on The Challenge to Change. The details of the proposals and the means by which the Marriage Law working group envisaged that church legislation would give effect to them were inextricably bound up with Government proposals to reform the civil registration system. However, when the Government decided not to proceed with their reforms, the group embarked on a more limited programme of reform regarding the place of marriage and certain ecumenical issues relating in a new marriage measure.
In July 2007, the General Synod overwhelmingly passed the Church of England Marriage Measure and it received the Royal Assent on 22nd May. The Archbishops have now signed an instrument bringing all the provisions of the Measure into force from 1st October 2008. NOTEREF _Ref231205810 \h \* MERGEFORMAT
This new legislation provided that rather than being limited to the church of the parish where one or both parties to the marriage reside, couples may choose to be married in any church where either of them have a “qualifying connection,” NOTEREF _Ref231205810 \h \* MERGEFORMAT such as having been baptized or confirmed in that church or having resided in that parish at one time for a period of at least six months. NOTEREF _Ref231205810 \h \* MERGEFORMAT This power of internal determination, though subject to royal assent, shows an independence and privilege in matters of marriage law on the part of the established Church of England that it appears no other group, religious or non, enjoys. Additionally, if a Church of England priest feels unable to perform a marriage (because it is a remarriage after divorce or for other reasons of conscience) the priest is permitted by law to refuse to perform the marriage and can also prohibit the use of the church or chapel of which they are a minister for the marriage. NOTEREF _Ref231205810 \h \* MERGEFORMAT This right existed well before the Marriage Measure of 2008.
B. Possible Insights from the United Kingdom Model
Like the Orthodox Jewish Church in Israel, the Church of England originally had exclusive jurisdiction over marriage and divorce. Once the state began to intervene for the sake of order and regulation, it did so by simply codifying the established Church’s complete monopoly on marriage. Although it took the state nearly a century, England gradually recognized that social realities required that provision be made for those not belonging to the Church of England. Israel has already recognized this to some extent in providing for Muslims, Christians, and Druze to be married within the rites of their respective faiths. However, England also recognized at that time under the Marriage Act of 1836, that there was a need for secular marriage for those who claimed no religious affiliation. It is conceivable that Israel could follow a similar road to providing a means of marriage for those who do not fall into one of the categories of people currently able to marry. The English experience, however, illustrates that an “all or nothing” approach is not necessary, and a system can be developed through gradual and careful steps.
For example, in contrast with Turkey, where marriage by an imam has no legal standing and all marriages must be performed in a civil ceremony to be valid, the United Kingdom has continued to give its established church a privileged place in the rules and laws of marriage while still allowing basic freedom for others. This model might be adapted by Israel by continuing to provide the Orthodox Jewish Church with legal authority to regulate marriage among its adherents, while still providing a way for those who do not belong to the Orthodox Jewish faith, or to one of the other three churches currently provided for, to marry.
It is not tenable to maintain that religious freedom is respected when the very ability to legally marry is limited based upon one’s religious status. The problem is particularly acute for several categories of people. First, for those who are not religious, the possibility of being legally married in Israel does not exist (or is at least severely limited). Reliance upon foreign marriages and other mechanisms are not sufficient long-term solutions. Second, similar restrictions exist for those who belong to religions other than the four recognized churches that are permitted to perform marriages. Third, couples of mixed religious affiliations are limited by the rules of the churches of their respective spouses. Fourth, even couples that consider themselves as belonging to one of the four recognized religions may find themselves ineligible for marriage based upon the rules of their church. This amounts to what has been described as a system characterized most prominently by coercion (for those who are eligible to be married) and exclusion (for those who are ineligible to be married). NOTEREF _Ref231205810 \h \* MERGEFORMAT
It is preferable for solutions to sensitive social and political issues such as marriage to come from the legislative branch rather than the judiciary. As Aristotle maintained over two millennia ago, laws are best when they are enacted by legislators, who can think generally and prospectively, rather than dictated by judges, who decide based upon particular cases and looking backwards. NOTEREF _Ref231205810 \h \* MERGEFORMAT Israeli courts have shown an admirable deference to the political branches of government to find a solution to the marriage conundrums facing Israel, but it is unrealistic to expect that their patience will be unlimited. A solution that is broadly acceptable within Israeli society seems more likely if it comes from the political branches.
There is an important, constructive role for religious groups to play in constructing a civil marriage system in Israel. In Spain, religious freedom became a reality when the Catholic Church, bolstered by the commitments to religious freedom that emerged from the Second Vatican Council, took a leadership role in creating a legal and cultural landscape that was respectful of religious freedom. By many measures, the Catholic Church in Spain is a healthier institution today than it was when it was closely identified with a particular political party, and when there were strong anti- and pro-clerical swings in government policy that accompanied political change. In Israel, one important (perhaps the) key to the prospect of addressing the marriage conundrum lies with Orthodox Jewish leaders. The Orthodox Church will likely be more comfortable with the political outcome if they are constructive rather than obstructionist in their stance.
Both the United Kingdom and Turkey have found ways of creating a mechanism for civil marriage while maintaining significant involvement for churches in marriages involving their adherents. Most importantly, for ecclesiastical purposes, churches should be allowed to have autonomy in deciding who is eligible to be married within the rites of that church. If a civil marriage system exists, it is easier for religious groups to resist state pressure to marry people that the religion does not consider eligible for marriage within their religious tradition. Churches are better off if they are free to resist political pressure to make their marriage rules conform with societal trends or fashions.
Monopolies and oligopolies can be expected to fight to protect their privileges. In countries with a dominant historical religion, including the Russian Orthodox Church in Russia and the Greek Orthodox Church in Greece, the dominant religion makes numerous arguments that their special status should be preserved in the name of national unity, cultural identity, and so forth. Many of these arguments are very similar to the types of arguments that are made by industrial monopolists and oligopolists. As the analogy to industrial monopolies also suggests, sometimes churches are better off if they are able to compete in the market place of ideas. A church that is overly dependent upon the state, or too closely identified with it, may find itself enervated and dependant. As Roger Williams observed in the context of established churches in colonial America, a wall of separation of church and state may be warranted to protect the “garden of the church” from the wilderness of the world.
Looking to other models of civil marriage can only be suggestive rather than prescriptive. The solution that will be found in Israel will be forged by Israelis, working together and in good faith. It is unlikely that the solution in any one place will serve as a template or road map that can be used to navigate very different terrain. The particular challenges in Israel are as complex and multifaceted as any place in the world – if not more so.
One of the most important approaches that we can take when dealing with difficult social and political issues is to think about the issue from the point of view of the minority (when we find ourselves in the religious or political majority) and from the point of view of the majority (when we are in a political or religious minority). Ultimately, all of us benefit from the realization that, when it comes to religion, we all belong to a religious minority. In the flat, crowded and dangerous world in which we live, there is no such thing as a religious majority. Even Christians, with their billion or so, and Muslims, with their billion or so, are a religious minority when we think from a global perspective. Remembering the rights and interests of minorities is especially important at times when we find ourselves in temporary or localized majorities. Our claims to be treated fairly and with respect when we are in the minority will be stronger if we treat others fairly and with respect when we are in the majority.
NOTEREF _Ref231205810 \h \* MERGEFORMAT J.D. 2008, J. Reuben Clark Law School, Brigham Young University. Publications Project Manager, International Center for Law and Religion Studies, BYU Law School. I would like to express special thanks to Quinn.
NOTEREF _Ref231205810 \h \* MERGEFORMAT Justice Barak’s presentation has not been published. The account given here is based upon contemporaneous notes taken by our colleague Lynn Wardle.
NOTEREF _Ref231205810 \h \* MERGEFORMAT Yuval Merin, The Right to Family Life and Civil Marriage Under International Law and Its Implementation in the State of Israel, 28 B.C. Int’l & Comp. L. Rev. 79, 80-81.
NOTEREF _Ref231205810 \h \* MERGEFORMAT Andrew Treitel, Conflicting Traditions: Muslim Shari’a Courts and Marriage Age Regulation in Israel, 26 Colum. Hum. Rts. L. Rev. 403, 408 (1995).
NOTEREF _Ref231205810 \h \* MERGEFORMAT Treitel, supra note __, at 411.
NOTEREF _Ref231205810 \h \* MERGEFORMAT Treitel, supra note __, at 411, citing Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, S 1,7 L.S.I. 139 (1953). As explained by Treitel, “Exclusive jurisdiction was also granted for alimony decisions even if filed in proceedings unconnected to divorce proceedings. Rabbinical court jurisdiction is not exclusive for personal status matters such as guardianship or administration of property. For complete control over these matters, these courts need the consent of all parties concerned. The Rabbinical courts also have jurisdiction under the Adoption of children Law, and the Succession Law. There is a Rabbinical Court of Appeals which sits in Jerusalem.” Id. at 411-12 (internal citations omitted).
NOTEREF _Ref231205810 \h \* MERGEFORMAT Daniel Friedman, Perpetual Dillemma book review, 92 Harv. L. Rev. 952, 956 (1979).
NOTEREF _Ref231205810 \h \* MERGEFORMAT Treitel, supra note __, at 412.
NOTEREF _Ref231205810 \h \* MERGEFORMAT Treitel, supra note __, at 412. “Similarly, with consent, the Christian courts mayu proclaim jurisdiction over personal matters of foreigners with the single limitation that they cannot decree the dissolution of foreign subjects’ marriages.” Id. (internal citations omitted).
NOTEREF _Ref231205810 \h \* MERGEFORMAT Treitel, supra note __, at 413 (internal citations omitted).
NOTEREF _Ref231205810 \h \* MERGEFORMAT See, e.g., S. Zalman Abramov, Perpetual Dilemma (Jerusalem: World Union for Progressive Judaism, 1976), at 194 (citing examples that religious marriage and divorce laws protect national unity and national identity).
NOTEREF _Ref231205810 \h \* MERGEFORMAT Friedmann, supra note __, at 956. Friedman cites as an example, the Jewish Karaite community, which is excluded from getting married because the Orthodox Rabbis do not recognize as valid the manner of Karaite divorce (get). Id. at n.21.
NOTEREF _Ref231205810 \h \* MERGEFORMAT The following list of those disqualified from getting married in Israel is adapted from Merin, supra note __, at 135.
NOTEREF _Ref231205810 \h \* MERGEFORMAT This includes not only anyone who is not a Christian, Muslim, Jew, or Druze, but also anyone who may consider themselves as being a part of any of these categories who is not recognized by the religious courts as belonging to those groups.
NOTEREF _Ref231205810 \h \* MERGEFORMAT “Under Jewish law, a marriage between a Jew and a non-Jew is