The Spousal Covenant (Brit Hazugiut), or the Covenant with the Status Quo

The Spousal Covenant (Brit Hazugiut), or the Covenant with the Status Quo

Sylvie Fogiel-Bijaoui

ABSTRACT: In 2010, the Knesset passed the Spousal Covenant Act, which enables Israelis ‘lacking religious affiliation’ to marry and divorce in Israel. Using the ‘twin tolerations’ theory, I present the process and the actors involved in the legislation, pointing out that in Israel the twin tolerations are reflected in the so-called status quo. On the basis of that analysis, I argue that the spousal covenant, initially aimed at solving the problem of all individuals forbidden to marry in Israel, but especially ‘non-Halakhic’ Jews from the FSU, ended up as a marginalizing law, excluding those non-Halakhic Jews from the Jewish-Israeli collective. I further argue that non-Halakhic Jews from the FSU no longer contest the Israeli religious regime of inclusion and instead use the ‘established bypasses’—cohabitation and civil marriage abroad—both to get married and to be part of the national collective.

KEYWORDS: civil marriage, FSU, religious affiliation, spousal covenant, status quo, twin tolerations

The legal regime of human rights entitles individuals and groups to claim equality and liberty as against the state and as against social and political institutions. It enables plurality of belief and religion and abolishes inequal-ities of status under the law. It entitles individuals and groups to legal protection against the hegemony of the political majority, of the religious establishment and of other powerful social actors. (Raday 2008: 633–634)

On 22 March 2010, the Knesset passed the Spousal Covenant Act (Brit Hazugiut, or the Act on Spousal Covenant for Persons Having No Religious Affiliation). As has been pointed out in the extensive literature, because

Israel Studies Review, Volume 28, Issue 2, Winter 2013: 210–227 © Association for Israel Studiesdoi: 10.3167/isr.2013.280213 • ISSN 2159-0370 (Print) • ISSN 2159-0389 (Online)

The Spousal Covenant | 211

Israel lacks separation between religion and state in many areas of family law under the status quo arrangements, marriages and divorces in the country can be carried out only under the auspices of the religious com-munity to which a couple belongs: Jewish, Muslim, Christian, or Druze (Barak-Erez 2009; Barzilai 2010; Fogiel-Bijaoui 2005; Halperin-Kaddari and Yadgar 2010; Lifschitz 2006; Raday 1995; Shifman 1995; Triger 2005).1 Con-sequently, 300,0002 Israeli citizens from the former Soviet Union (FSU), who are classed as being without religious affiliation (Cohen 2006; Cohen and Susser 2009), had been unable to marry. The new law’s purpose was to enable them to do so by entering into a spousal covenant. This law, however, is different in spirit and content from the original 2001 bill, which was conceived of as a civil option, in line with the status quo,3 for those who could not have or did not want a religious marriage (Lifschitz 2006). Moreover, it seems that the spousal covenant is not popular among the Russian-Israeli couples classified as ‘lacking religious affiliation’. The first marriage by spousal covenant did not take place until 12 April 2011 (Efraim 2011), and by July 2012, only 37 couples had made use of the law.4

In this article, I describe the tortuous path that the bill traversed until it became the Spousal Covenant Act. I also analyze and explain the atti-tudes toward the law among immigrants from the FSU who lack religious affiliation. To that end, referring to Knesset and other official documents, I divide my analysis into three parts. In the first part, I invoke the ‘twin tolerations’ theoretical approach (Driessen 2010; Stepan 2000, 2010) to explain the essence of the status quo agreements. According to this con-cept, state and religion may co-exist democratically if there are mutual tolerations whose boundaries are constantly and consensually constructed and reconstructed.

I suggest that Israel’s status quo agreements—that is, the accommoda-tions between religion and state that have been agreed upon to preserve the state as Jewish and democratic—are the country’s twin tolerations. The status quo, however, is not only ‘unfinished business’, which, accord-ing to Stepan (2000: 53–54), all twin tolerations are. It is also a problematic issue and certainly one that is intolerable from a democratic-liberal per-spective, for it prevents hundreds of thousands of people from marry-ing in their own country, in violation of the UN Universal Declaration of Human Rights. At the time of the post-Soviet immigration, the issue grew particularly acute because the number of people who could not marry in Israel rose dramatically. Thus, there was a need, at both the legal and political levels, to rethink the status quo (Lifschitz 2006).

In the second part, I outline the history of the political struggle over the law and present the motives of the main actors—the secular, Orthodox, and ultra-Orthodox parties. In the beginning, in 2001, several secular parties

212 | Sylvie Fogiel-Bijaoui

and the Orthodox National Religious Party (NRP) formed an alliance to promote the spousal covenant. Each of these actors, for its own political reasons, was willing to redefine the Israeli twin tolerations on the mar-riage issue. But this fragile alliance lasted only until the middle of the 16th Knesset (2003–2006) because the ultra-Orthodox parties had grown in power and were committed to maintaining the boundaries of the status quo. A new compromise had to be reached, this time between secular and ultra-Orthodox parties. That compromise was ultimately reflected in the Spousal Covenant Act.

In the third part, I analyze how ‘non-Halakhic’ Jewish-Russian Israelis have reacted to the Spousal Covenant Act. I argue that alternative insti-tutional arrangements recognized in Israel, such as marriage abroad and cohabitation, function de facto as civil marriage (Barak-Erez 2009; Triger 2005) and offer these new Israelis better and more practical solutions than does the spousal covenant. I also argue that these institutional arrange-ments enable these Russian Israelis to resolve their marriage issues as many Jewish Israelis do. This makes them part and parcel of Jewish-Israeli society, in contradistinction to their marginalization as ‘non-kosher’ (non-Halakhic) Jews by the new law, which effectively excludes them from the Jewish-Israeli collective.

In my conclusion, I consider the future of the spousal covenant and how new generations of Israelis without religious affiliation but with a growing sense of Jewish-Israeli identity (Leshem 2008) will react to this law. One possible scenario is the construction of a new status quo that will transform the twin (in)tolerations in Israel.

Contextualizing the Issue

Recently, an increasing number of scholars have pointed out the existence of many state-religion arrangements that allow religion a central role in political life while maintaining a high level of democratic rights and free-doms (Driessen 2010; Fox 2006; Neuberger 2007, 2012; Stepan 2000, 2010). This consensual arrangement functions as long as twin tolerations exist—that is, as long as the boundaries of the state’s freedom from religion and religion’s freedom from the state are institutionalized. These boundaries guarantee at least three kinds of freedom: (1) the freedom of elected gov-ernments from any constitutionally privileged influence from religious institutions, (2) complete freedom of worship, and (3) the freedom of reli-gious people to express their values in both civil society and politics so long as they do not impinge on the liberty of others. This consensual arrangement requires constant adjustments by both religious and secular


actors, who must learn to share the public domain through the “constant construction and reconstruction of the ‘twin tolerations’” (Stepan 2000: 42). As Stepan concludes (ibid.: 43): “If we are looking for the defining charac-teristics of democracy vis-à-vis religion, ‘secularism’ and the ‘separation of church and state’ are not an intrinsic part of the core definition, but the ‘twin tolerations’ are.”

In Israel, the twin tolerations are called the status quo, but to a greater extent than in liberal democracies, Israel’s arrangement is highly contro-versial and perennially challenged because it impinges on people’s liber-ties, allowing Israelis freedom of religion but not freedom from religion (Barak-Erez 2009; Neuberger 2007; Triger 2012).

The status quo, which refers to the status of (Orthodox) Judaism in Israel as a Jewish and democratic state, has its origins in the pre-state period (Boaz 2002; Herzog, forthcoming) and is symbolized by the arrangements agreed upon by Israel’s first prime minister, David Ben-Gurion, and the leadership of the ultra-Orthodox sector. Over the decades, this compro-mise has been reinforced by further agreements between the Orthodox and secular sectors, represented generally by the National Religious sector and the Labor movement respectively. These arrangements have affirmed the inherent link between Orthodox Judaism, citizenship, and nationhood in the Jewish state, on the one hand, and the state’s Jewish ethno-reli-gious regime, on the other, implying limits to the integration of non-Jewish Israeli citizens into the new state (Barzilai 2010; Bystrov 2012; Levy 2011; Peri et al. 2012).

Family law is among the pillars of the status quo. A specific judicial sys-tem has been consolidated in which marriage and divorce are conducted in rabbinical courts for Jews and by the relevant religious authorities for members of other faiths. Civil marriage is prohibited. When these con-cessions were first made, they were accepted by (Jewish) secular Israelis mainly because they prevented inter-faith marriages (especially between Jews and Arabs) and the ‘splitting of the Jewish people’ (Barak-Erez 2009; Fogiel-Bijaoui 2005; Triger 2005).5

However, as Barak-Erez (2009) demonstrates, the status quo has under-gone many changes in its role of promoting stability. With regard to family law, this has been made possible by the dramatic reduction of the applica-bility of religious law, as the result of the gradual imposition of constitu-tional principles on the religious courts. As the Supreme Court has become more involved in status quo issues, Israeli law has developed a variety of alternatives to marriage that circumvent the status quo. The most promi-nent are civil marriage outside Israel and cohabitation (yedu’im batzibur). True, they do not solve the problem entirely: in the case of divorce, a non-religious marriage must still be dissolved according to religious law, and


even if a couple obtains a civil divorce abroad, rabbinical authorities may consider the couple still married (Triger 2012). But the alternatives vest the couple with a range of civil rights that are very similar to those of married couples. For instance, cohabitation, as a legal alternative for inter-faith, bi-national, and LGBT couples, includes the obligation to share mutual assets accumulated during the relationship and the right to pension funds of a deceased partner, while children born to a cohabiting couple have the same legal rights and status as a child of married parents (Barak-Erez 2009; Fogiel-Bijaoui 2005; Lifschitz 2008; Rosenblum 2013; Shifman 1995).

Nevertheless, marriage and divorce remain areas that are controlled almost exclusively by religious law, and interventions by civil law are minimal (Triger 2012). In recent years, however, the tradition of compro-mise has been eroded, and actors in status quo controversies now aim for resolutions in which there are winners and losers instead of compromises (Barak-Erez 2009).

The thousands of Israelis who for decades have not been permitted to marry in the Promised Land6 include secular people seeking a civil mar-riage; members of different religions (inter-faith marriages); male Cohanim (descendants of Jewish priests) wishing to marry divorcées; same-sex couples; mamzerim; agunot (women whose husbands refuse or are unable to grant them a get, the Halakhic bill of divorce), and a small category of people unaffiliated with any religion. With the waves of immigration from the FSU, this problem became acute, as the number of religiously unaffiliated people who were not allowed to marry grew to hundreds of thousands. The status quo game became a zero-sum game.

The Politics of the Status Quo

Those who initiated the Spousal Covenant Act wanted it to be a consen-sual agreement.7 As Lifschitz (2006) reminds us, it was Yossi Beilin of the Labor Party, serving as the justice minister in the Barak government (1999–2001), who asked him and Pinchas Shifman to think of a ‘creative solution’. It had to suit both the spirit of human rights and the NRP.

A basic document was drafted in 2001, but the legal process was not completed. In 2003, with the formation of the second government led by Ariel Sharon, the issue returned to the fore because it was included in the coalition agreement between the four coalition parties—Likud (right), Shinui (middle-class liberal and secular party), Ihud Leumi (far-right alli-ance of religious and secular nationalist parties), and the NRP (Khanin 2004)—with Shinui demanding that a legal solution be found. Thus, the Bar-On Commission was formed with members from all four parties.


In July 2004, the then justice minister Tommy Lapid (Shinui) presented the government with a draft based on the commission’s work, according to which there would be a separate status for people who entered into a spousal covenant (Yuval and Alon 2004). The covenant was not to be construed as a marriage but would be as similar as possible to the institu-tion of marriage. The innovation was the legalization of civil unions, as opposed to civil marriages or religious marriages. Thus, the validity of the contract derived from the free will of the couple and not from any religious factor. The bill never progressed further, partly because the NRP, which was never unanimous on the issue (Cohen 2006; Marciano 2004), stepped back and joined with the ultra-Orthodox MKs, who strongly opposed this proposal, emphasizing its threat to the status quo and to the unity of the Jewish people (Hareuveni et al. 2004). Another possible reason was that Ihud Leumi and the NRP left the government as a result of Sharon’s disengagement plan.8

On 4 December 2004, Shinui left the coalition because it did not support the coming year’s budget. But before that, on 8 November 2004, Shinui MK Roni Brizon introduced the Spousal Covenant Bill (Knesset 2004). It was rejected, as were proposals introduced earlier that year by Meretz (a social-democratic left-wing party), Likud, and Shinui MKs (Lifschitz 2006: 57). Only in 2006 was another bill—actually two—introduced, one by an MK of the centrist Pensioners of Israel Party (Gil) (Knesset 2006a) and the other by an MK of Yisrael Beiteinu (the far-right, secular ‘Russian’ party) (Knesset 2006b).9 Ehud Olmert had succeeded Sharon as prime minister, and the coalition in power included the ultra-Orthodox (Mizrachi) Shas Party, but not Shinui, which was in decline (Levy 2011). The bill met strong opposition from Shas and received no support from Kadima, the leading party of the coalition,10 even though it had signed a coalition agreement with Yisrael Beiteinu on this issue (Marciano 2006a).

This scenario was repeated with two bills in 2008 (Meranda 2008). This time, the bills were introduced by MKs of Yisrael Beiteinu (Knesset 2008a) and Gil (Knesset 2008b). The sole difference was that Yisrael Beiteinu had left the coalition.

In 2009, following the election of the 18th Knesset, Benjamin Netanyahu formed a coalition that included Shas, United Torah Judaism (ultra-Ortho-dox), and Yisrael Beiteinu. Thus, a compromise had to be found between the secular ‘Russian’ party and the ultra-Orthodox ones. It was inspired by the agreement reached in July 2007 by the then justice minister Daniel Friedman and the Chief Rabbi of Israel, Shlomo Amar. The compromise, drafted by the then justice minister Yaacov Neeman (Ministry of Justice 2009), was a limited bill for civil marriage in Israel that would apply only to Israelis without religious affiliation. It was voted into law on 15 March


2010, and on 22 March 2010 it became the spousal covenant that allows people without religious affiliation to marry in Israel and subsequently to divorce. But the law also stipulates that the religious courts have the right to oppose the registration of a couple if they find that one of the partners is “a member of the religion of the religious court or if there is doubt about that” (Articles 2, 5, 6).11

The Actors

For the secular Shinui (Levy 2011) and Yisrael Beiteinu (Khanin 2004) par-ties, the expanded version of the spousal covenant—which included peo-ple unwilling or forbidden to marry under religious law—was a move toward reconstruction of the status quo, part of a strategy for redefining state-religion relations in a more secular direction. This move was bolstered by the fact that Shinui had succeeded in attracting Russian-Israeli voters, and that Yisrael Beiteinu was created expressly to defend the interests of the immigrants from the FSU. These voters had arrived in Israel with a sec-ular, ethnic Jewish identity and very little experience of Jewish religion and traditions. They were typically shocked by the semi-theocratic nature of Israeli institutions and way of life (Remennick and Prashizky 2010). They were also angered by the intervention in their private lives by religious forces that, inter alia, prevented them from marrying in their new country. Thus, both Shinui and Yisrael Beiteinu saw their ideological and electoral interests in promoting a spousal covenant that was conceived of as serving their constituents’ needs.

Perhaps most important, however, secular and Zionist parties like Shinui and Yisrael Beiteinu saw it as their ‘national mission’12 to solve the per-sonal problems encountered by the newcomers in such matters as marriage, burial, and conversion and to integrate the Russian Israelis into the national collective, whether or not they were halakhically Jewish. This ‘mission’ was, of course, related to the ‘demographic competition’ between Israeli Arabs and Jews and to the way in which the post-Soviet immigration helped main-tain the Jewish majority in Israel. As Cohen and Susser (2009: 64) argue: “Ex-Soviet Jews, whether Halakhic or not, strengthen the Jewish character of the State. Retaining the 80-20 relationship between the percentages of Jews and Arabs in Israeli society is of decisive importance for the Zionist project—especially given the high Arab birth rate” (see also DellaPergola 2011; Kravel-Tovi 2012). This ‘mission’ also enabled the ultra-nationalist party Ihud Leumi, which has both religious and secular members, to sup-port and even promote the spousal covenant—at least in the beginning.

But the actors in Israel’s vibrant civil society, especially promoters of human and civil rights, opposed the bills, even in their expanded version.


Free Marriage in Israel,13 a non-profit organization representing 30 lead-ing human rights associations, including LGBT, feminist, and religious groups, advanced several reasons:

• The bills strengthened the sole jurisdiction of Orthodox Judaism and ignored the Conservative and Reform movements.

• A spousal covenant law might undermine the validity of de facto civil marriages by contravening laws pertaining to cohabitation. Each bill stipulated that it would replace these civil laws, except in certain cases (Lifschitz 2006), although the final version of the law dropped this stipulation.

• The bills did not provide for same-sex marriage. • The rights of individuals who entered into a spousal covenant,

although similar to those of individuals who were married by cler-ics, were to come into effect only after 18 months, which meant that they were discriminated against up until then.

Thus, the secular Zionist parties Shinui and Yisrael Beiteinu lacked suffi-cient support and political leverage from the civil society. Moreover, their natural allies, the secular Zionist parties Kadima and Labor, feared losing the ultra-Orthodox parties’ support in any present or future coalition, and so declined to take a clear stand (Marciano 2006a, 2006b; Meranda 2008, 2009), while Meretz steadfastly opposed the bills, demanding full civil marriage.

After Shinui’s demise, Yisrael Beiteinu remained the only political actor (occasionally bolstered by Kadima) to champion the spousal covenant and give it political prominence, especially during the 2009 elections, although it opposed the same bill when Kadima proposed it (Meranda 2009).14 Despite the lack of political backing, and in order to preserve its repre-sentative status in the eyes of its constituency, Yisrael Beiteinu ultimately supported and promoted the ‘thin version’ of the 2010 law.

The law finally passed with 56 MKs voting for it, including Tzipi Livni and most of the Kadima MKs, some Labor MKs, and some from the vari-ous Religious Zionist parties, including what was left of the NRP (Cohen 2011). However, many MKs, including Arab and ultra-Orthodox MKs, were away on the day of the vote. The only opponents were three MKs from Meretz and one from the Communist Party (Knesset Protocols 2010).

The opposite approach was taken by the ultra-Orthodox parties, includ-ing Agudat Yisrael and Degel Hatorah (Ashkenazi) and Shas (Mizrachi), which is by far the largest and most influential of the three. For these par-ties, which would like Israel to become a Jewish theocratic state, family laws must be Halakhic because, in their view, the Jewish family has kept


the Jewish people alive. These laws are seen as essential to limit the num-ber of mamzerim, to prevent inter-faith marriages, and to maintain moral standards. Moreover, in their view, Jews are only those whose mother is Jewish or who have converted according to Halakhah (Barzilai 2010). The ultra-Orthodox parties saw the spousal covenant bills (until the final draft) as attempts to bypass the status quo by removing non-Halakhic Jews from ultra-Orthodox jurisdiction and enabling them to marry—to which the response was an inflexible refusal. This inflexibility was fueled by additional factors:

• The ultra-Orthodox parties feared that Yisrael Beiteinu’s victory on this issue would lead directly to other demands (regarding burial, divorce, and conversion) and to other victories, thus dismantling the status quo in all spheres, both private and public (Kravel-Tovi 2012; Levy 2011).

• Shas feared that this process would strengthen the ‘Russian’ party and its Ashkenazi and ‘non-Jewish’ constituency, again tipping the ethnic balance against Mizrachi Jews, just as they were making inroads into the echelons of power (Levy 2011).

• Above all, it was the ‘demographic threat’ that reinforced their inflexible approach. For the ultra-Orthodox, this refers to the grow-ing number of non-Jews in Israel, a category to which they assign non-Halakhic Jews (Kravel-Tovi 2012; Lustick 2011). Instead of fortifying the Jewish character of the state, non-Halakhic Jews are seen as eroding the fragile numerical superiority of Jews in Israel. Along with migrant workers and Falash Mura immigrants from Ethiopia—and, of course, Palestinian citizens of Israel—these goyim are contributing to the formation of a multi-ethnic and multicul-tural society, signifying the transformation of Israel into a de facto ‘normal’ immigration state (Kemp 2007). The fact that only about 5 percent of non-Halakhic Jews have successfully completed an Ortho dox conversion (the only kind legally accepted in Israel) and that among some 4,000 converts per year (the average for 2000–2003) just under 1,000 were Russian-speaking immigrants did not help to change their stance (Remennick and Prashizky 2010: 9).

The NRP’s approach differed from that of the secular parties and of the ultra-Orthodox parties, but it agreed with both. The Orthodox NRP held basically the same view as the ultra-Orthodox parties on family issues. This is not surprising, because for years the NRP had been the gatekeeper of the status quo (Cohen 2011; Levy 2011). But as a Zionist party, the NRP was fully aware of the invaluable contribution of the immigrants from the


FSU to the demographic competition between Israeli Arabs and Jews and to maintaining the Jewish majority in the Promised Land. So the NRP’s ‘national mission’ was to explore pragmatic routes of accommodation, as opposed to the inflexibility of the ultra-Orthodox parties, while maintain-ing the status quo—as has been done, although not without problems, with regard to the issue of conversion (Kravel-Tovi 2012).

The motivation for compromise was reinforced by fear of what Cohen (2006) has described as ‘sociological conversion’. This is the process whereby non-Halakhic Jews, through their adoption of Jewish-Israeli cul-ture, their military service, and their contribution to every aspect of eco-nomic and social life in the country, become part of the Jewish national collective without religious procedures, thus demonstrating that religious conversion is not a sine qua non for joining the Jewish people (Cohen and Susser 2009; Leshem 2008; Yakobson 2010).

But NRP members did not unanimously support compromise. More-over, from June 2004 to August 2005, Sharon’s disengagement plan was the major political issue. Both Ihud Leumi and the NRP left the govern-ment in 2004 over the plan, thus pushing the spousal covenant bill to the bottom of the agenda. The ensuing years saw incessant crises and splits in the NRP and in the National Religious camp. In the 2009 elections, the NRP received its death blow and ceased to exist, even in name (Cohen 2011). On the day of the vote on the ‘thin version’ of the bill, very few National Religious MKs were present, as if they had had no role in its for-mation (Knesset Protocols 2010).

I now turn to the reaction of Russian Israelis without religious affiliation to the Spousal Covenant Act.

Alternative Marriages: A Path to Inclusion

It could be argued that the reaction of non-Halakhic Jews to the Spousal Covenant Act is a mixture of anger and irritation, coupled with an affir-mation that they have already become (Jewish) Israelis. This response is expressed in the fact that so few of them, as noted above, have made use of the law. Their anger derives, first, from the negation of their Jewish identity. Although about 10 percent of non-Halakhic Jews self-identify or are registered as Christians (Cohen and Susser 2009: 57), many of the oth-ers are children of a Jewish father and a non-Jewish mother. As Yakobson (2010: 220) explains: “They often bear distinctly Jewish family names and are quite likely to have suffered from anti-Semitism in the former Soviet Union. Many of them were officially registered as Jewish and/or regarded themselves as Jewish in their country of origin” (see also Lerner 2011).


The law itself is also a source of irritation. First, it offers a solution only to an average of 170 couples annually because most non-Halakhic Jews marry ‘kosher Jews’ (i.e., Halakhic Jews), and it is rare for one non-Halakhic Jew to marry another.15 So for the non-Halakhic Jews, the law is but a shadow of the previously proposed bills that, if enacted, would have enabled hundreds of thousands of them to marry in their new country. Second, those who consider themselves Jewish find it insulting to have to undergo further scrutiny by the rabbinate to ensure that they are in fact religiously unaffiliated (Articles 2, 5, 6), and that legislation designed to provide an alternative to religious marriage is subject to the approval of religious authorities.

Some new immigrants have left because of this and other problems of absorption (Lustick 2011). But for the bulk of non-Halakhic Jews, the solution is to use the ‘established bypasses’ to the marriage prohibition (Remennick and Prashizky 2010) as a means to affirm their normative Israeli identity. They can choose to cohabit, as do 5 percent of Israeli couples (CBS 2012), or they can choose to marry abroad (e.g., in Cyprus or Prague), if they can afford the costs involved. In 2002, 7,089 Israelis—constituting 8.2 percent of all Israelis who married that year—married abroad. Of these, half were born in the FSU and about one-fifth had no religious affiliation; most married (Halakhic) Jewish partners (CBS 2005). This trend seems more or less stable, for although the number of civil marriages abroad has decreased (and cohabitation has increased), in 2008, of 5,028 couples who married abroad, 1,277 grooms and 1,347 brides lacked religious affiliation (Ettinger 2011). This trend is even reflected, at least for the moment, in the way that the approximately 170 couples allowed to marry annually in Israel under the Spousal Covenant Act actually choose to marry. Consid-ering that as of July 2012 only 37 couples had entered into a spousal cov-enant, it seems that most have chosen either to cohabit or to marry abroad.

Thus, instead of acting politically to challenge the hegemonic defini-tion of Judaism or to contest the Israeli religious regime of inclusion, these individuals are using the established bypasses (Fialkova and Yelenevs-kaya 2006; Remennick and Prashizky 2010). One reason, as can certainly be argued, is that all political attempts to change the situation, such as vot-ing en masse for Shinui and Yisrael Beiteinu, have failed. Another reason is that the established bypasses on family status matters are also paths of inclusion: on the one hand, the bypasses enable them to behave like many other Israelis, thus ending their marginalization; on the other hand, the established bypasses that allow them to solve their problems at the per-sonal level do not prevent them from being Israeli patriots at the collective level. In many cases, this is expressed by their tendency to be ‘more Israeli than the Israelis’ in their ethnocentric politics (Cohen and Susser 2009: 63).


Thus, the bypasses enable them to accept the status quo of rabbini-cal control of family laws as the price for being Israeli and for becom-ing part of the national consensus. As Leshem (2008) explains, there has been a change in the Israeli identity of the FSU immigrants and the rela-tive importance of that identity, as compared to their Jewish and Russian identity. These components have increased, together with their sense of interdependence and shared destiny with the State of Israel and its inhab-itants. In this process, Russian Israelis have adopted meaningful religious rites and duties, for instance, celebrating Jewish holidays in line with the accepted Israeli behavioral code (Remennick and Prashizky 2010). More-over, as Remmenick and Prashizky conclude (ibid.: 52): “[O]ne can assert that Russian Israelis have become part of the national consensus on the controversial matter of state-religion merger—despite the fact that they are the party most directly affected by it. In other words, after two decades in Israel, Russian Jews have completed—with partial success—their trans-fer from State Socialism to State Judaism.”

Conclusions

I have presented the process and the actors leading to the passage of the Spousal Covenant Act in 2010 (Ministry of Justice 2010). My main conclu-sion at this stage in my research is that the influx of immigrants from the FSU, both Halakhic and non-Halakhic Jews, will not change the status quo regarding family laws, despite the fears and hopes that their presence would help transform the Israeli twin (in)tolerations into more democratic ones. The 2013 elections seem to confirm this. With the ultra-Orthodox parties out of the government, the status quo now has an ‘old-new’ gate-keeper. This is Naftali Bennett and his Jewish Home party, an alliance of what is left of the NRP and other Religious Zionist parties with a new face, which attracted a considerable number of new voters. This ‘old-new’ gate-keeper is willing to allow some cosmetic adjustments to the status quo, but balks at real democratic change (cf. Ettinger 2013).

In the near future, however, the situation might change, should the cur-rent sporadic protests over issues such as the status quo with regard to the Israel Defense Forces and what is termed ‘equality in sharing the burden’ (i.e., the drafting of ultra-Orthodox men) or public transportation on the Sabbath become a mainstream protest movement, unlike the left-leaning movement for social justice in the summer of 2011, in which immigrants from the FSU generally did not participate (Lyan 2011). This, together with the changing identity of the immigrants from the FSU, could lead to the transformation of the status quo. But that is beyond the scope of this article.


ACKNOWLEDGMENTS

I am grateful to Evgenia Bystrov, Larissa Fialkova, Hanna Herzog, Oleg Komlik, Gal Levy, Shahar Lifshitz, Frances Radai, Larissa Remmnick, Reina Rutliger-Reiner, Hadas Tagari, and Zvi Triger for their insightful comments and suggestions.

SYLVIE FOGIEL-BIJAOUI is an Associate Professor at the College of Man-agement, Rishon Le-Zion. Together with Reina Rutlinger-Reiner, she is the head of a Van Leer Institute research project titled “Family and Individu-alization: Gender, Religion, Nation, and Human Rights.” She received her PhD in Political Sociology from Paris X-Nanterre University and the Ecole des Hautes Etudes en Sciences Sociales. Her most recent book, Democracy and Feminism: Gender, Citizenship, and Human Rights, was published (in Hebrew) in 2011.

NOTES

1. Israel’s status quo has been extensively documented and analyzed in count-less works. Among other studies, see Barak-Erez (2009), Barzilai (2010), Boaz (2002), Cohen (2006), Fogiel-Bijaoui (2005), Halperin-Kaddari and Yadgar (2010), Herzog (forthcoming), Lifschitz (2006), Raday (1995), Shifman (1995), and Triger (2005). It has become the basis for state-religion regulation of many variegated aspects of (Jewish) life, including the Sabbath, Jewish dietary laws, family laws, education, military service, conversion, immigration, and burial, and it affects all Israeli inhabitants. For the spousal covenant legislation, see http://www.justice.gov.il/NR/rdonlyres/8EC3AA4C-CB5B-4916-A7AB-0E50BAA5E487/23579/ChokZugiyutEn.doc.

2. According to the Central Bureau of Statistics (CBS 2008: table 1.20), in 2008, 282,900 people were “not classified by religion.” This category derives mainly from the Law of Return, which was understood as a Jewish repatriation law when it was enacted in 1950. In 1970, it was amended in a way that greatly expanded the circle of those entitled to immigrate to Israel by including not only Jews but also those with Jewish ancestry and their spouses. Because of the amendment and because of the substantial rates of intermarriage among Russian Jews (Lerner 2011; Remennick 2007; Remennick and Prashizky 2010), it is not surprising that a sizable and growing segment of this population con-sists of immigrants who are not deemed Jewish according to Halakhah. They are eligible for immediate citizenship and state financial support, but they are not registered as Jews in the census (Cohen and Susser 2009), nor are they entitled to state-sponsored religious services, such as marriage and burial.


3. From its inception, the spousal covenant was a civil option, in line with the status quo (Lifschitz 2006). For that reason, many civil rights and human rights activists opposed it. As will be explained further, even in its initial version it did not support inter-faith or same-sex marriage and strengthened the sole jurisdic-tion of Orthodox Judaism, ignoring the Conserva tive and Reform movements.

4. http://news.walla.co.il/?w=/90/2547567, 7.7.2012 [in Hebrew]. 5. The very real problem of divorce in Israel is outside the scope of this article. 6. Under Jewish law, a mamzer (mamzerim, pl.) is a child born from forbidden

sexual relations, including those between a married woman and a man, single or married, other than her husband. When a couple marries according to Jew-ish law and subsequently undergoes a civil (rather than religious) divorce, a child born of the woman’s subsequent union is liable to be considered a mamzer and suffer severe limitations under Jewish law, including restrictions regarding whom he or she may marry. These limitations continue for 10 gen-erations. From the religious point of view, this issue splits the Jewish people into two groups of people who are forbidden to marry one another.

7. It is impossible to recount here all the political and legal steps leading to the Spousal Covenant Act. I have selected the most relevant.

8. Israel’s unilateral disengagement plan, implemented in August 2005, evacu-ated all Israelis from the Gaza Strip and from four settlements in the northern West Bank. As an outcome of the enactment of the plan (in principle), two NRP ministers resigned, leaving the government with a minority in the Knes-set. Later, the entire faction quit after its calls to hold a national referendum were ignored.

9. On 1 February 2006, just before the elections, Yisrael Beiteinu split from Ihud Leumi to run alone.

10. Kadima is a centrist and liberal party. It was established in November 2005 by Sharon and moderate Likud MKs to support the Gaza disengagement and was soon joined by like-minded Labor politicians. With Olmert as party leader following Sharon’s stroke, it became the largest party in the Knesset after the 2006 elections, garnering 29 of the 120 seats, and led the new coalition government. Although Kadima also won the most seats in the 2009 elections under Tzipi Livno’s leadership, it became an opposition party after a Likud-led government was formed.

11. See http://www.justice.gov.il/NR/rdonlyres/8EC3AA4C-CB5B-4916-A7AB-0E50BAA5E487/23579/ChokZugiyutEn.doc.

12. Kravel-Tovi (2012) uses this terminology in her examination of the conver-sion process.

13. On this subject, the organization published an internal document, Haforum Lema’an Behira Hofshit Benisuin, dated 25 May 2001. It sent a letter to Lapid on 16 February 2003 and one to the Knesset Constitution, Law, and Justice Committee on 2 March 2010. For the last document and more information about Free Mar-riage in Israel, see [in Hebrew] http://www.acri.org.il/he/?p=19464.

14. During the 18th Knesset, there were other bills not limited to individuals without religious affiliation. One was introduced by Yisrael Beiteinu in 2009


(Knesset 2009), and two were introduced by Kadima—in 2009 (Meranda 2009) and in 2010 (Knesset 2010). All three were rejected.

15. See the letter sent by Free Marriage in Israel to the Knesset Constitution, Law, and Justice Committee, 2 March 2010, at http://www.acri.org.il/he/?p=19464 [in Hebrew].

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The Spousal Covenant (Brit Hazugiut), or the Covenant with the Status Quo

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