Game Changer

Sometimes, what you thought was long ago settled can become an issue again. In 2015 the Supreme Court ruled that the Constitution protected same-sex marriage. Since that time, states have adjusted their procedures for obtaining marriage licenses and thousands of couples have gotten married under the new rules. The recent court decision overturning a right to abortion, however, has thrown this status quo into doubt.

Marriage equality now has strong majority support in the polls, and some have argued that a concern that the Supreme Court would overturn it is overblown. But the court has also made it quite clear that public opinion is irrelevant in legal decisions and Justice Clarence Thomas argued in his concurrence to the recent Dobbs case allowing states to ban abortion that the court should review and potentially overturn previous cases such as Obergefell which established a right to same-sex marriage.

Given the fact that many, including nominees to the Supreme Court, argued that a right to abortion was settled law all the way until it was overturned, the House of Representatives decided to pass a law that would protect marriage equality. Why wait for the court to take away a right? Of course, justices might rule that law unconstitutional as well, but they would have to be willing to overturn the democratic process. Now it turns to the Senate to pass the bill and Republicans will have to decide if they are willing to go against clear public opinion to reject it in an election year.

Sometimes, what you thought was settled can become an issue again not because of politics, but because of technology. On the marriage front in Israel, a court there ruled that the government must accept the validity weddings obtained by couples who get married online through the state of Utah. In Israel itself, only religious authorities recognized by the state can perform marriages.

In the case of Jews, the official Orthodox rabbinate has total monopoly over this process which means that thousands of people cannot or will not wed in the country. Those whose Jewish status is not accepted by the rabbinate or those unwilling to follow the strictures of Orthodox practice had been forced to travel abroad to get married. Upon their return to Israel with a valid foreign marriage, the government would recognize the union.

When COVID hit, Utah County was already prepared to make the entire marriage process, including the ceremony, available online. This was expected to help local residents and was of great benefit during the pandemic, but it was also discovered by Israelis who were unable to travel abroad for their weddings. Suddenly the Israeli Interior Ministry had to decide whether to accept these foreign weddings where the couples never left their homes.

Unsurprisingly, the Orthodox Interior Minister at the time blocked the registration of these marriages because he correctly feared that it would lead to a de facto civil marriage in Israel. While the rabbinate may not like couples flying to Cyprus to get married, they were willing to tolerate it because the numbers are relatively small. Online weddings, however, could be a game changer. Suddenly avoiding the Orthodox authorities is not just an option for the well off.

Now a judge has ruled that the Israel’s bureaucracy must accept these digital foreign marriages, giving couples more options for their weddings. It is yet to be seen if the case will stand, but it is another small step in favor of civil marriage and religious freedom. Both in the United States and in Israel, there is a strong desire to let couples, regardless of sex, gender, or religion, decide whom they would like to spend their lives with. Politicians are learning they had better get out of the way.

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