Achieving Equality without a Constitution: Lessons from Israel for Queer Family Law
Laura T. Kessler, Achieving Equality without a Constitution: Lessons from Israel for Queer Family Law, in Queer and Religious Alliances in Family Law Politics and Beyond (Nausica Palazzo & Jeffrey A. Redding eds., Anthem Press) (2022 Forthcoming)
30 Pages Posted: 8 Mar 2022 Last revised: 3 Oct 2022
Date Written: January 9, 2022
How might the United States reconcile conflicts between equality and religious freedom in the realm of family law? To answer this question, this chapter considers recent developments in family (personal status) law in Israel. While Israel may at first blush appear to be the last place that feminists and queer theorists should look for solutions to modern conflicts between democratic and religious values, this chapter argues that the Israeli experience has much to offer critical family scholars working to develop pluralistic legal approaches to family regulation. Israel is a country with a diverse population and unique political and legal context that has generated a rich (if imperfect) set of compromises among its religious, secular, and ethnic populations in the realm of family law. These solutions have emerged despite—or perhaps because of—Israel’s lack of a written constitution guaranteeing its citizens a basic right to equality. As such, Israel serves as a potentially generative case study to examine the possibility of developing pluralistic legal responses to family regulation in contexts without robust, universal, constitutional protections for women and LGBTQ citizens, a circumstance that the United States is increasingly approaching.
This chapter begins with an explanation of Israel’s personal status system and the Jewish and Sharī‘a laws on divorce. It then examines recent examples of self-reform undertaken by religious authorities and courts in Israel to address some of the injustices of religious divorce law. Specifically, the chapter examines the decision by some rabbinical courts to permit annulment when a husband refuses to grant a wife a divorce and a recent decision by Israel’s Sharī‘a court permitting the appointment of female qadis. The chapter concludes with a broader consideration of the implications of these developments for family law in the United States. In particular, this chapter suggests that the Israeli experience helps to illuminate conditions that may incentivize cooperation between religious and queer/feminist/secular communities around issues of family diversity absent strong constitutional protections for family equality. Drawing on the Israeli experience, it also explores how American reformers might facilitate greater legal pluralism to address queer families’ legal needs through private dispute resolution or other mechanisms that are less dependent on the state for their validity and enforcement than constitutional rights litigation.
Keywords: personal status, law, Israel, marriage, divorce, LGBTQ rights, same-sex marriage, human rights, family law, legal pluralism, multiculturalism, rights, religion, gender, queer theory, alternative dispute resolution, arbitration, courts, feminism
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