Karl Marx got many things wrong, but not this: “Social progress can be measured by the social position of the female sex.”
My Hebraic ancestors, following the customs of the regions they lived in, practiced polygamy and concubinage, but before long the principle of one man, one wife emerged, with rights and responsibilities assigned to each party. The Talmud’s halacha —the “fence around the law”—parsed the often cryptic utterances of the Torah to extrapolate a litany of customs designed to promote sexual purity before—and sexual dignity within—marriage.
The Torah’s first commandment to humankind—“Be fruitful and multiply”—was recognized as the primary goal of marriage. The rest is commentary, strategies to enhance the sanctity of family life. For most of its history, Judaism’s treatment of women was exemplary by comparison with its neighbours. In one respect today, however, Orthodox Judaism remains far behind the times.
Divorce is permitted under Jewish law and may be initiated by either party. But at this point Orthodox Judaism, which otherwise sails by the same moral compass as Western democracies, runs aground on a vestigial legal sandbar.
A religious divorce in Judaism is doctrinally complete only when the wife receives a get—the document officially releasing her from the marriage—from the husband. If he refuses to issue it, he cannot be compelled. Even though civilly divorced and free to remarry in Canadian law, few observant Orthodox women are willing to enter a (religiously) adulterous state and bring momzerim—bastards—into the world with all the marginalizing stigmas she and her children would endure from their community, not to mention the legal quagmire awaiting in Israel, should they wish to live there.
Until last week, this intractable and hotly debated moral dilemma in the Jewish community flew under the general public’s radar. But on Dec. 14, the Supreme Court of Canada ruled that Stephanie Bruker—a Jewish woman whose husband, Jason Marcovitz, had for many of her fertile years denied her a get, despite promising to do so under the terms of their civil divorce—had been legally wronged, and should be awarded $47,500 in damages.
Although some voices will be raised in protest at this seeming intrusion into religious affairs, this precedent should be welcomed with relief by the Canadian Orthodox Jewish community as a face-saving excuse for retirement of the get law.
I say relief because there isn’t a single Orthodox Jew of conscience who can defend the quintessential unfairness of the custom. No man nor woman should exert sway over an ex-spouse’s future sexual and emotional relations once their own are dead, especially not when its effect is to flout the Torah’s fruitfulness injunction.
Jewish law has frequently changed to accommodate evolving historical enlightenment. The Torah permits slavery, animal sacrifice and death by stoning, all of which were superannuated centuries ago. Moreover, one of the most admirable features of talmudic Judaism is the recognition that ordinances must respect the limits of human beings’ capacity to fulfill them without undue suppression of their natural instincts. That is why celibacy is discouraged even for spiritual reasons, and the sexual desires of women were taken into consideration in the development of halachic principles around marriage.
Slavish adherence to outmoded templates of male-female relations is a charge we often level at still-tribal cultures in which women are degraded to chattel status. The fact that Jewish women are not in physical danger from their husbands (or shouldn’t be under Jewish law) is no argument. A lesser evil is still an evil.
The injustice of the get law has ramifications beyond the Orthodox community. There are many secular and non-Orthodox, but culturally committed Jews who take their values and inspiration from Judaism’s raison d’etre: the creation of a just society. The glaring anomaly of the get‘s endorsement of male power over existential female fulfillment is a source of shame to us. It is time for Canadian Orthodox Jews to put an official end to this undignified and immoral practice. Where there is a will in religious legal circles, there is always a way.
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