Zionism vs Islamism, both seem to be premodern
April 15, 2017 § Leave a comment
In Israeli law
In the modern State of Israel, the law concerning matters of marriage, divorce, and personal status, is partially under the jurisdiction of religious courts. For example, there is no civil marriage in Israel. The Jewish religious regulations concerning mamzerim are thus also the national laws imposed on Jews living in Israel, including secular Jews. Because of the severe impediments to marriage which mamzer status accords in Jewish law, Israeli civil law has taken the position that the paternity of a child born within a marriage cannot legally be challenged in civil courts, in order to avoid creating a body of evidence that might be used to declare the child a mamzer, or create difficulties for a future marriage.
The existence of mamzer status as a category in Israeli family law has been criticized. An extensive review and opinion advocating the adoption of civil marriage in Israel, written by Prof. Pinhas Shifman and published in July 2001 by the Association for Civil Rights in Israel, mentions Mamzer among the categories of Israelis which Professor Shifman believes should have a right to marry a spouse of their choice and argues current Israeli law interferes with and denies that right. Professor Shifman and ACRI advocate ending the religious monopoly over marriage in Israel and cite the existence and difficulties of mamzer status as an argument against the use of religious law in marriage cases.
Israeli religious courts resolve mamzer status by generally ruling that the child was born within the marriage despite the existence of evidence to the contrary. This convenient formula sometimes causes difficulties for lovers or subsequent spouses who wish to assert paternity over a child which may be biologically theirs. A 2006 case, in which a child born eight months and two weeks after a divorce, was declared the former husband’s child rather than the child of the wife’s subsequent husband, and this was reported as causing a dilemma for the subsequent couple.
Israeli law resolution of the mamzer status by declining to consider claims that someone other than the husband might be the child’s father is not inconsistent with the way a number of other countries. For example, in 1989 the United States Supreme Court upheld the constitutionality of a California law similar to the restriction Israel imposes on its courts, requiring children born within a marriage to be regarded as being children of the married couple and requiring courts to refuse to entertain paternity claims and evidence brought by a third party. The US Supreme Court held (in Michael H. v. Gerald D., 491 U. S. 110 (1989)) that such a law does not violate peoples’ civil rights as the United States Constitution understands the term, holding that society’s interest in the regularity of marriage outweighs individual rights in such cases. American law in this matter has also been criticized. The US Supreme Court decision was 5-4, with the court’s members nearly evenly divided in their opinions on whether the practice of California and many other U.S. states violates civil rights (as understood in the United States) or not.
Nonetheless, the existence of the category of Mamzer, and the marital impediments inherent to it, is one of the arguments frequently used by Israeli secularists in calling for separation of religion and state and for the institution of civil marriage. In 2014 the Center for Women’s Justice announced it would petition the Israeli Supreme Court to bar secret blacklists of mamzerim by Orthodox rabbinical courts, claiming they are an invasion of privacy.