A Jurisprudential Quandary: Jewish Marriage in Post-Separation France

• In Event: Legal Constructions of Gender and Marriage

Abstract

In the wake of the 1905 law separating church and state, both the civil and rabbinic courts in France struggled to resolve tensions and contradictions between civil and Jewish law in the thorny area of marriage. Marriage was a particularly complex area with regard to the principle of the religious neutrality of the state because marriage was both a civil institution that fell under the jurisdiction of the state and a religious ritual that fell under the jurisdiction of the rabbinate. Additional problems arose because foreign law technically applied to the thousands of foreign Jewish nationals residing in France in matters relating to personal status even after 1905, and as a result, they could not rely on French civil authorities to terminate their marriages.

In my paper, I will explore how the French courts struggled to balance the dictates of French law, which promoted the secularization of marriage, and foreign law, which often reflected the principles of religious law. In a review of the relevant case law, I will demonstrate how the courts, to the consternation of the Jewish community, were slow to resolve these tensions, which led to the denial of civil protections to foreigners in France. At the same time, I will address the innovative halakhic efforts of the French rabbinate in the wake of church-state separation to harmonize Jewish and civil divorce law. I will analyze the debates surrounding the 1907 controversial rabbinic proposal to institute conditional marriage. Under this never-implemented plan, a Jewish bridegroom would stipulate that if, in the event of a civil divorce, he refused to grant his spouse a religious divorce, the marriage would be retroactively voided. Had this proposal been instituted, it would have resolved the contradiction between the civil and religious status of a woman whose husband refused to grant her a religious divorce following a civil decree of divorce. Thus, the continuing adherence of civil courts to foreign law and rabbinic courts to Jewish law demonstrate how both civic equality and the principle of the secularization of marriage remained elusive long after the separation of church and state.

author

• Zvi Jonathan Kaplan, Touro College