(May 2, 2017) On February 28, 2017, Israel’s Supreme Court, sitting as a High Court of Justice, in a five-to-two decision, rejected an appeal lodged by two Jewish husbands against (separate) rulings by rabbinical courts to subject the men to the application of 12th century social/religious sanctions not expressly authorized under Israeli law. (HCJ 5185/13 Anonymous and Gez v. the Great Rabbinical Court in Jerusalem (decision rendered Feb. 28, 2017), State of Israel: the Judicial Authority website.) The sanctions, known as Rabeinu Tam’s Distancing Rules (RTDR), were originally proposed by Rabbi Yaakov Ben Meir as a way to pressure Jewish husbands, when ordered by a rabbinical court to divorce, to present their wives with a get (Jewish bill of divorce). (Questions and Answers Part, Ch. 24, SEFER HAYASHAR LE RABEINU TAM 42 (Ephraim Zalman ben Menahem Mannes Margolioth & Ferdinand Rosenthal eds., 1898 ed.), available online at HATHITRUST.)
Facts of the Case
The Supreme Court’s decision was rendered in response to two joined petitions presenting similar legal questions. The petitioners in each case were Jewish husbands who fled Israel after having been ordered by rabbinical courts there to divorce their wives. One petitioner fled to the United States and the other to Belgium, where he was arrested pending extradition proceedings. The regional rabbinical courts concerned issued various injunctions against both husbands in accordance with the authority given them under Israeli law. The injunctions included an order to Israeli consulates in the United States not to provide assistance to the first petitioner and an order requiring the second petitioner to deposit his passport at the relevant regional court. The second petitioner managed to leave Israel, however, possibly by using a fraudulent identity. (HCJ 5185/13, Justice Elyakim Rubinstein opinion, ¶¶ 1-18.)
In the divorce decisions they rendered, both rabbinical courts also made reference to religious sanctions originating from the RTDR, such as recommending in the case of the first petitioner, that the public should refrain from “doing him [the husband] good and/or adding him to a minyan [a quorum of ten men over the age of 13 required for traditional Jewish public worship], and/or negotiating with him and/or burying him [according to a Jewish burial ceremony] … .” (Id. ¶-4.) In the case of the second petitioner, the relevant rabbinical court expressly referred to the RTDR, recommending these and additional social religious sanctions in accordance with the RTDR. (Id. ¶ 11.)
According to Justice Elyakim Rubinstein, ruling with the majority, although the RTDR are unenforceable, as there is no legal mechanism to implement them in the State of Israel there is no reason why rabbinical courts cannot recommend that the rules be applied. (Id. ¶ 21.) Rubinstein recognized the lack of equality under Jewish law in the ability of husbands as compared with wives to obtain a divorce. In his opinion, even though the RTDR are not expressly included in Israeli legislation, the recommendation to use them reflected recognition of the right of a woman to dignity, liberty, and family life of her own, in accordance with Basic Law: Human Dignity and Liberty. (HCJ 5185/13, Rubinstein opinion, ¶ 36; SEFER HAHUKIM [BOOK OF LAWS, the official gazette] 5752 No. 1391 p. 150.)
Unlike other RTDR religious sanctions, however, preventing the Jewish burial of a husband who had refused to divorce his wife against the decision of a rabbinical court, in Rubinstein’s opinion, contradicted section 1 of the Capacity and Guardianship Law, 5722-1962, which provides that “[e]very person shall be capable of having rights and obligations from after his birth until his death.” (Capacity and Guardianship Law, 5722-1962, § 1, SH 5722 No. 380 p. 120, as amended.) Just as upon death a person’s debt (as an individual, as opposed to that of his or her estate) expires, the duty of a husband to give a get to his wife similarly expires upon his death, and his wife becomes a widow. (HCJ 5185/13, Rubinstein opinion, ¶ 38).
Justices Uri Shoham and Isaac Amit, concurring with Rubinstein, opined that the petitioners lacked “clean hands” because they had unlawfully fled Israel. (Id. Amit opinion ¶ 1; Shoham decision, ¶ 2.) Without making a decision on the authority of the rabbinical courts to recommend application of the RTDR, Justice Esther Hayut agreed that the petitions must be rejected on the ground of lack of clean hands. (Id. Hayut opinion, ¶¶ 1-7.) Justices Hendel and Amit, however, disagreed with Rubinstein’s argument that the petitions should be denied with regard to the RTDR’s recommendation to deprive the petitioners of a Jewish burial. (Id. Hendel opinion, ¶ 14, & Amit opinion, ¶ 17.)
Based on the majority opinion, the Supreme Court held that the rabbinical courts were authorized to recommend application of the RTDR in response to the unlawful behavior of the petitioners and their refusal to give their wives a get in violation of the judicial decisions requiring them to do so. The petitions were therefore rejected by the Court, except with regard to voiding the RTDR-based recommendation to deprive the petitioners of a Jewish burial upon their death. (Id. Summation, ¶¶ 1-2.)