Lisa Joffe

In February of 2020, the Committee on Jewish Law and Standards of the Conservative/Masorti Movement published two halakhic opinions (teshuvot), by Rabbi Pamela Barmash and Rabbi Gail Labovitz, responding to the question: "May kiddushin, the traditional form of Jewish marriage, and the Jewish marriage ceremony, be made into an egalitarian form for a male-female Jewish couple? Is there an egalitarian form for the ketubah?" Both opinions explore the history and meaning of kiddushin and offer recommendations for new marriage documents and rituals that address the gender inequality in ketubah and kiddushin. Rabbi Pamela Barmash 's teshuvah argues for an egalitarian reinterpretation of kiddushin. Rabbi Gail Labovitz's teshuvah sees kiddushin as fundamentally inegalitarian and recommends the adoption of two alternatives to kiddushin. Seeing these opinions, drafted by two female-identifying rabbis, as an important development, Nashim invited Rabbis Barmash and Labovitz to reflect on the process and the nature of their disagreement, and we invited seven additional experts to respond to them as well.

The last decade has seen the publication in North America of a plethora of academic books and articles about polygamy. The most important texts on the subject, however, are two court rulings evaluating the constitutionality of criminal prohibitions against the practice of polygamy. Informed by and in dialogue with this academic discourse, these courts arrived at dramatically different conclusions. In Reference re s. 293 of the Criminal Code of Canada, the Supreme Court of British Columbia determined that while Mormon fundamentalist polygamists had religious freedom rights under Section 2 of the Canadian Charter of Rights and Freedoms to practice this aspect of their bona fide religious faith, the government of Canada was justified in limiting this right under Section 1 of the Charter. Prohibiting polygamy was necessary, the court found, in order to prevent the real and substantial risk of harm that it posed to women and children.1 Conversely, in the United States, a trial-level court in Utah issued a summary judgment finding that a criminal prohibition against polygamous religious marriages violated the rights to freedom of religion under the First Amendment, and due process rights guaranteed by the 14th Amendment to the US Constitution. This judgment focused on the state's duty to tolerate minority religious practices, while downplaying the potential risks of polygamy to practitioners and their children.2

The distribution of powers between the state and religious groups plays an important role in shaping how controversies over multicultural toleration and women’s rights under religious law can be resolved. Some structures encourage dialogue while others make it difficult. In Israel, the presence of multiple systems of personal religious law limits the possibilities for the transformation of discriminatory religious laws. There is no civil marriage or divorce in Israel. When the modern State of Israel was created, exclusive power over family law disputes involving Jewish citizens was placed in the hands of rabbinical courts. This arrangement has been called one to retain the ‘status quo’. However, it was not a continuation of Jewish tradition or of the arrangements in place during the long period of Ottoman rule in Palestine. It reflected strengthened powers that had been given to rabbinical courts during the period of the British Mandate for Palestine. This article will trace the ways in which British policies for colonial rule and the interests of Jewish religious leaders coalesced to create a regime of religious family law that is resistant to feminist demands for change.

Can the law act as a catalyst to change minority practices that discriminate against women? Can civil law merely impose remedies from outside the minority culture or can legal mechanisms be devised which spur internal change? Theorists of gender and multiculturalism have argued that civil law can play a role in creating the conditions which allow, and indeed compel, cultural communities to engage in internal dialogue to transform their norms into more egalitarian ones. This article explores this thesis through considering the development of Canadian civil family law remedies to alleviate the plight of women whose husbands use their power to withhold divorce under Jewish law to extort advantages in civil divorce settlements. It considers whether the process of negotiating, drafting and implementing amendments to the Divorce Act has supported the renegotiation of norms in the Canadian Orthodox Jewish community regarding the issuance of divorce decrees, the development of novel solutions or the re-invigoration of traditional forms of religious legal authority. In particular, the article evaluates whether these civil law strategies have had the effect of generating the sort of transformative dialogue about norms envisioned by theorists of multiculturalism and gender.

The recent implementation of the Gender Recognition Act marks a
dramatic change in the regulation of transsexualism in the United
Kingdom. The author argues, however, for a cautious reading of this
development. She suggests that Corbett v. Corbett [1971] P. 83 (U.K.) and
its progeny have sought to contain the troubling effects that recognition of transsexual and intersexual embodiment might have for prevailing gender
norms. The article proposes a novel re-reading of Corbett in the context of
a little noted line of cases involving intersex spouses. Contrasting
responses to the spouses in these cases suggests that courts have been
unsympathetic to transsexuals who make manifest their agency in choosing
gender transition, while demonstrating sympathy to those whose transition
is made necessary by ambiguity or a medical mistake regarding their true
sex. She cautions that the new recognition regime continues this strategy of
containment by delegating the power to identify the true sex of transsexual
and intersex individuals to medico-legal experts rather than allowing
transsexual individuals autonomy to choose their gender identity.