The system of divorce as prescribed by Jewish law is fundamentally flawed.
There is simply no other way to judge a set of rules that grants such overwhelming power to the male divorcé who must grant his former wife a get, a Jewish divorce, if she is to continue living a Jewish life of any significance.
Without a get, a divorced woman may not remarry a Jew in a religious ceremony, and any future children she gives birth to are automatically deemed Jewish outcasts. It is bad enough that Jewish law considers a fair balance of power unnecessary. What’s worse is that the modern-day rabbinic arbiters have not recognized the need to overturn the stance of our earliest lawmakers on this issue.
There can be no alternate opinion on the subject of Jewish divorce laws. Even those who would argue that Jewish law was never meant to be “feminist,” that the there is a paternalistic foundation to God’s Torah, have no grounds to argue in favour of the status quo. The granting of a get isn’t about empowering females, it is, simply, about protecting one’s basic human rights.
Considering how unwilling Jewish lawmakers have been to change the laws of divorce, many people will be celebrating the Supreme Court of Canada’s recent ruling in favour of Stephanie Bruker, a Jewish woman from Montreal who sued her husband for damages because he had refused to give her a get in the 15 years after their 1980 civil divorce. Previously, the Quebec Court of Appeal had decided it had no jurisdiction over a case whose essential nature was based on a separate set of religious laws. But the Supreme Court reversed that decision, awarding Bruker $47,500 in damages at the end of December.
Long-suffering ex-wives and champions of balancing the powers of the sexes in Jewish law are no doubt celebrating this ruling. I don’t think there’s any reason to consider the Bruker case a victory. Consider this: the court’s decision doesn’t mean that Jewish divorce laws have been altered, only that the risk of facing a lawsuit might force those few odious men to reconsider if they would otherwise withhold a get from their ex-wives without fear of punishment. But the basic weakness of the Jewish law remains exposed.
If anything, the Bruker ruling should cause us all to lower our heads in shame. We – Judaism – lost. We knew there was a problem and yet did nothing to fix it. And to make things worse, lawmakers outside of our community were forced to use their rules to fix our rules. If laws of Jewish divorce are deplorable, we are all the more so for allowing them to stand, even as an outside force threatened to change the rules unilaterally.
Worse still, I fear we may look back on the Supreme Court’s ruling on the get as the moment when we lost our ability to self-govern based on our own set of rules. Now that the court has seen fit to wade into religious waters, what, for example, will happen when someone claims that ritual circumcision constitutes a cruel punishment?
And all this because we were too weak, too pathetic, to fix our own problems, too afraid of change, even when we knew that change was desperately necessary.
The Supreme Court decision should be a wake-up call to all Jews – rabbis and laypeople alike – to act immediately to deal with the agunah issue. The shame of inaction can now never be undone. Those in charge of our system of laws must have the courage to institute change, even at the expense of tradition and written law, to emancipate Jewish women from the tyranny of our divorce system. The rest of us must show unflinching resolve to force our leaders to make those changes – not only to keep the civil courts out of our traditions, but for the sake of those Jewish women whom we continue to fail.