Between Social and Legal Legitimations: Weddings outside the Rabbinate in Israel

Abstract

This article examines the case of Israeli Jews who choose to marry in ceremonies outside the state-authorized rabbinical establishment. Formally speaking, these private marriages are not recognized by the State. We focus on the ways in which these marriages become legitimate. The study is based on interviews with forty such couples. Our findings show that these couples tend to attach far more weight to achieving social legitimacy for their marriage than legal recognition and legitimacy. While most sociological and legal analyses of these concepts do not distinguish between the two types of legitimacy, our study reveals a more nuanced and complex interplay in which these processes are perceived as separate (by the couples) while, in fact, they are interconnected. We show that couples are able to experience their weddings as socially legitimate due to the social recognition of their weddings as “traditional.” Additionally, their de facto relations as cohabitant partners grant them similar rights to those of formally married couples in the eyes of the State. Thus, our study demonstrates that, ironically, those who challenge the State’s marriage establishment rely on the very same elements that constitute formal Jewish marriages in Israel.

1. Introduction

Over the past two decades, there has been a steady increase in the number of Israeli Jewish couples who hold wedding ceremonies outside the auspices of the Chief Rabbinate, Israel’s Jewish religious establishment. The Rabbinate (Rabbanut), as the Chief Rabbinate is commonly referred to, has exclusive control over state-sanctioned marriage procedures available to Israeli Jews, which it conducts according to the Orthodox interpretation of halakha (Jewish religious law). Some of the couples who hold wedding ceremonies not recognized by the state have no alternative. This is the case, for instance, of Israelis who are not recognized as Jews according to the Rabbinate’s halakhic standards, many of whom are migrants or children of migrants from the former Soviet Union (Prashizky and Remennick 2016). Same-sex couples also turn to private ceremonies because they are not granted access to the Rabbinate’s marriage procedures (Prashizky 2017).

This paper focuses on those couples who are eligible to marry through the Rabbinate but have chosen a private ceremony instead.1 That is, different-sex couples who are recognized as Jews by the Rabbinate. Formally speaking, these private marriages are not recognized or registered by the State. Beyond legal recognition, marriage through the Rabbinate system is considered the only “true” marriage in popular Israeli imagination (Ferziger 2014). The decision to hold private marriage ceremonies, then, calls for a closer look. This paper joins studies that examine how marriage transformations challenge religious establishments (Madera 2022; Rejowska 2022). Our focus is on the legitimation aspect of this phenomenon; that is, on the ways in which wedding ceremonies and forms of marriage that challenge social and religious convictions gradually become legitimate.

This article analyzes data from interviews with forty couples who chose to marry outside the Rabbinate in Israel. Most of the couples we interviewed (65%) did not seek to register their marriages formally. Instead, they are recognized as de facto partners (yedu’im batzibur).2 We build upon findings from a larger research project, which highlighted that couples who marry outside the Rabbinate tend to attach far more weight to achieving social legitimacy for their marriage than legal recognition and legitimacy (Fuchs et al. 2022). The current paper delves further into these findings and seeks to explore why many of these couples attach greater importance to achieving social legitimacy than legal legitimacy, and how they establish the social legitimacy of their weddings and marriages.

For the purpose of our analysis, we treat legitimacy as the recognition of a thing (a person, an action, or a situation) as worthy (Lamont 2012). The question of social legitimacy is especially relevant when examining phenomena related to marriage, since one of the most powerful motives for marriage is the desire for social recognition of the relationship between two individuals, and for social appreciation of this relationship (Ocobock 2020). This issue is especially salient in struggles led by LGBT activists who wish to open the institution to same-sex partners, under the slogan of “marriage equality” (Chauncey 2005; Fichera 2016; Haddad 2016). In this sense, the struggle for marriage equality can be seen as a battle to promote the rights of minorities suffering from legal and social discrimination. The Israeli case is different; the LGBT community is indeed part of the issue, by virtue of the fact that its members cannot officially marry in Israel. However, the local struggle is led mainly by individuals who are not barred from marriage, i.e., different-sex couples whose Jewish affiliation is not doubted. What is clearly common to both struggles, in Israel and outside of it, is the pursuit of legitimacy.

In examining marriage-equality battles, scholars have mostly focused on activists’ legal efforts to include same-sex relationships within the formal institution of marriage (Lyon and Frohard-Dourlent 2015; Ocobock 2020). These studies often treat legal legitimacy as an inseparable part—and sometimes even a precondition—of social legitimacy (Johnson et al. 2006; Ocobock 2020). This paper adds the interesting angle of a case in which social and legal legitimacies can be perceived as independent of one another.

To understand this observation, we must look more deeply into the concept of legal legitimacy within the context of marriage. Studies of marriage equality struggles often fail to notice that legal legitimacy is multilayered. Israeli law of family relations presents an unusually rich field demonstrating this observation, precisely because of the lack of state-sanctioned civil marriages within Israel.3 The question of whether a ceremony is legally binding or not, reflects one layer of legal legitimacy—that of assuring protection, rights, and obligations through the ceremonial act. This may, or may not, be manifested in a formal state document or registration. Formal marriage registration is obviously an expression of legal legitimacy and could be perceived as the ultimate form of legal recognition or legitimacy, but it does not necessarily correspond to the former layer of whether or not the ceremony is binding.4 Adding to the complexity is the fact that the recognition of a ceremony as legally binding is not the only basis for conferral of protection, rights, and obligations. These may be accorded on the basis of other legal grounds, such as contractual doctrines, which form the basis for the recognition of de facto relations (Goossens 2021).

Our study explores the various dimensions of legal legitimacy that come into play in the case of couples who choose non-state marriage. Our findings show that couples wish to receive social legitimacy for their unions and that this legitimacy is more important to them. They are able to experience their weddings as socially legitimate due to the social recognition of their weddings as “traditional,” and they stress this aspect of the ceremonies they conduct. Additionally, their de facto relations grant them similar rights to those of formally married couples in the eyes of the State. In practice, these rights are upheld despite the fact the relationship is not classified as a formal “marriage.” This combination of legal rights and the social legitimation of their relationships renders full-fledged, ultimate legal legitimacy, reflected in formal registration as described above, less important or pressing; it is the social legitimacy for their marriages that is given priority.

Thus, our study demonstrates that, ironically, those who challenge the formal marriage institution in Israel rely on the very same elements that constitute formal Jewish marriages in Israel: a wedding ceremony that is perceived as “traditional” and the assurance of legal rights. These seem to be fundamental to couples’ understanding that the alternative path they chose is a legitimate way of becoming married in Israel.

2. Conceptualizing Social and Legal Legitimacies

The question of legitimacy lies at the center of this paper. Legitimacy is a concept taken from multiple fields. Consequently, various definitions for legitimacy can and do conflict (Modak-Truran 2013). In Max Weber’s political theory, legitimation refers to the belief, of rulers and of the ruled, in the validity of a form of a regime (Weber [1922] 2000). Weber identified three such justifications, or sources, of legitimacy: legal, traditional, and charismatic. The first he associated with the bureaucratic administration in modern states and organizations. The latter two he associated with pre-modern societies (ibid.).5 A more recent theoretical thread considers legitimacy and legitimation as processes of value and evaluation (Lamont 2012).

Our analysis is inspired by both these approaches. We analyze how different layers of legal legitimacy come into play in the Israeli case-study. We also explore ways that evocations of “tradition” serve to legitimize these marriages and examine what is included within “tradition” that couples find worthy and valuable.

While inspired by Weber’s theory, our understanding of “tradition” is somewhat different. We do not examine “tradition” as a source of legitimation where prerogatives continue from the past into the present, as Weber did (Weber [1922] 2000, p. 101). Instead, we rely on more recent sociological and anthropological views of tradition as a dynamic process of generation and transformation, in which past and future are interlinked (Asad [1986] 2009; Clifford 2004; Yadgar 2011).

Yadgar’s (2011) theorization of tradition in Israeli society is particularly relevant to us. Yadgar considers tradition as an attitude towards the past that nevertheless belongs in the present (ibid., p. 10). Tradition, therefore, tells us more about the present than about the past. This perspective has guided our investigation of ways in which couples evoke, utilize, and mobilize “tradition” as they construct their weddings and marriages as socially legitimate.

This view of tradition allows us to study social legitimation as a process. We focus on how a new social phenomenon becomes legitimate. Thus, we adopted Modak-Truran’s (2013) definition of legitimization as a process by which a given situation is challenged and a new adjustment is incorporated into it in order to explain, adapt, or justify it (p. 1). Along the same lines, Zelditch (2001) treats social legitimation as “a process that brings the unaccepted into accord with accepted norms, values, beliefs, practices, and procedures. By definition, it therefore depends on consensus” (p. 9). In other words, general acceptance of an issue, an idea, or a mode of conduct, is vitally important to its social status. This is a dynamic and constantly evolving process by which the “unacceptable” becomes “acceptable” (Cipriani 1987; Rosman-Stollman 2018).

Johnson et al. (2006) offer a model of analyzing the process by which an innovative practice becomes legitimate—whether in an organization, community, or society. They argue that the new practice initially becomes legitimate if accepted within the immediate social circles of those seeking to legitimize it. This local validation can occur, they argue, when a process or an action are perceived as strongly connected to a certain tradition: not as an innovation or a change, but rather as a return to what has always been accepted and done (p. 60). When seeking to legitimize an action, framing it in traditional terms can bolster its acceptance (ibid.). Following this line of thinking, we examine our interviewees’ evocations of “tradition” as part of the social legitimation of marriages outside the Rabbinate in Israel.

As outlined above, most sociological studies treat social acceptance and legal legitimacy as interdependent, but the actual content of legal legitimacy remains rather obscure. Legal writings, on the other hand, appear to come from a somewhat different angle. It seems that the focus there has mostly been on the relationship between morality and legality, as reflected in the old dispute between legal positivism and natural law, and less on questions of social acceptance.6 They argued about the question of morality and the intriguing interaction between morality and legal legitimacy, but the actual meaning of morality was somewhat left vague. Thus, sociologists relied on the elusive concept of legal legitimacy, while legal philosophers referred to the obscure concept of morality, each discursive group leaving the definition open-ended. However, when looking more deeply into those discussions of moral justification as a basis for legal legitimation among legal philosophers, it becomes clear that their understanding of moral justifications corresponds with the sociological discussion of social legitimation.

A recent theoretical example for this circular process can be found in an influential article by Richard Fallon (2005), wherein, after arguing that the term “legitimacy” is not sufficiently analyzed, he offers a distinction between substantive legal legitimation, which stands for the law’s internal reasonability or correctness; and authoritative legal legitimation, which expresses the external duty to obey the law regardless of its reason (Fallon 2005). He also discusses sociological legitimacy in a sense that is similar to substantive legal legitimation, as they both depend on the public’s view of the law as justified or appropriate (Fallon 2005, pp. 1974–75). Thus, substantive legal legitimation is closely linked to social acceptance of the legal norm and seems to correspond to social legitimation. Another way to put it is to say that social legitimation may predate and anticipate (substantive) legal legitimation. Eskridge’s analysis of the phenomenally rapid success for marriage equality is a good practical demonstration of this point, arguing that “[t]he swiftness of the constitutional triumph was only possible because public opinion underwent a sea change in that period” (Eskridge 2021, p. 1449).

This conceptual construction of social and legal legitimation could explain the conflation of the two concepts which is found in many legal studies regarding marriage equality, where legal and social legitimacy are used interchangeably/simultaneously (Lyon and Frohard-Dourlent 2015; Shipman and Smart 2007). By referring to “legitimacy” in general, as the ultimate goal of the struggle for marriage equality, they seem to mean both social acceptance as well as legal recognition, entailing protection and rights. In the absence of a clear legal framework to assign rights and provide protection to cohabiting couples who live together without marriage, as is the case in most countries besides Israel, the need for legal recognition is clear.7 Marriage equality proponents, then, seek social acceptance as well as legal legitimacy in its fullest sense, of both formal registration and assurance of protection and rights.

Our study raises the option of separating social legitimacy from legal legitimacy, at least to some extent. As we explain in the next section, the peculiar legal situation in Israel guarantees substantial legal recognition to un-married cohabitants, regardless of the question of whether they can marry or not. Couples seem to be content with having that level of legal recognition which allows them to perceive social legitimacy as independent of legal legitimacy.

3. Jewish Marriage in Israel–Social and Legal Contexts

As a remnant of the millet system introduced during the Ottoman rule over pre-State Palestine, maintained by the British Mandate and by the State of Israel, the only official way to marry in Israel is religious; marriage and divorce can only take place via the laws of an individual’s religion, and only by the official State-recognized religious institutions.8 As a result, anyone who is not formally religiously affiliated, or is barred from marriage according to their religion’s laws, cannot be officially married in Israel; the option of civil marriage simply does not exist.9

The exclusivity of religious weddings in Israel as the only officially recognized way to marry has problematic implications (Perez et al. 2017). Within the Jewish population, this exclusivity is harmful first and foremost to those who are not eligible to marry. These include those whom the Rabbinate does not recognize as Jews by halakhic standards, those whom halakha bars from marriage,10 interfaith couples, and same-sex couples. At the same time, some couples who are eligible to marry via the state-recognized religious route wish to marry in a ceremony that is more meaningful to them than the religious ceremony. Others seek to avoid a state-sanctioned religious marriage, which subjects them to the jurisdiction of the religious courts, especially in case of divorce. The absolute control wielded by the religious courts over marriage and divorce is especially harmful for those who cannot terminate their marriages due to religious constraints. This is specifically harsh for Jewish women, since halakha gives control over divorce to the husband, who can refuse to grant it, leaving the wife in the status of an aguna.11

It seems that in recent years, more and more Israelis are “voting with their feet,” marrying via private ceremonies, outside the jurisdiction of the Rabbinate (Ettinger 2019; Perez and Rosman 2022).12 As far as their affinity with the halakhic ceremony is concerned, these ceremonies range from including elements of the halakhic kiddushin (i.e., a wedding ceremony which is valid according to the halakha) to fully secular ceremonies. From a purely legal perspective, if those ceremonies are conducted in a halakhic valid manner, then they are nominally valid under Israeli law, even if they are not formally registered (Halperin-Kaddari 2018).

Over the years, couples who belonged to such “groups of discontent” have searched for ways to gain legal recognition of their partnerships while circumventing the Rabbinate’s monopoly over marriage in Israel. The civil legal system has developed various “escape routes” that bypass the exclusivity of religious marriages in Israel (Ben-Porat 2013). There are two main legal institutions which achieve this. The first is the aforementioned institution of de facto partners, which grants cohabiting couples recognition and rights above and beyond what is afforded in other countries.13 The second is obtaining a civil marriage outside Israel, which allows couples (including same sex couples) to marry abroad, and then gain official recognition by registering the marriage in the Israeli Population Registry. The scope of protection and rights of de facto partners in Israel is very similar to that of couples married according to religious laws, to the extent that this legal institution is considered almost equal to marriage, although it is not registered (Lifshitz 2005; Halperin-Kaddari and Shmueli 2020).14 Likewise, the status of couples married in a civil ceremony overseas is identical to those married in Israel through the Rabbinate, and they are registered as married.15

As mentioned above, the two institutions developed by Israeli jurisprudence in response to the marriage crisis in Israel (namely the institution of de facto couples and the recognition of civil marriage abroad) provide reasonable solutions to the questions of the rights, protections, and obligations of couples who marry outside of the Rabbinate. The question of the relationship’s termination is more complex and is also related to the halakhic view of the various wedding ceremonies. Couples who hold a private ceremony (whether religiously valid or not) and also register as married following a civil marriage overseas, and later on wish to terminate their marriage, must terminate their marriage via a rabbinical court. In other words, official recognition results in placing the marriage within the rabbinical courts’ jurisdiction. But the legal situation in cases of couples who did not substantiate their private religious ceremony through a civil marriage overseas that allows them to register as married in Israel, and then wish to dissolve the union, is not at all clear (Halperin-Kaddari 2018, pp. 15–27). To complicate matters, an amendment to the Law of Marriage and Divorce (Registration)-1929 from October 2013 extended the already-existing criminal penalty for not registering a marriage or a divorce to those conducting a private wedding ceremony and increased the punishment to two years imprisonment. Perceived by many as a political reaction to the increase in private ceremonies undermining the Chief Rabbinate’s monopoly, this move drew criticism, and the amendment itself was narrowly interpreted by the Assistant Attorney General, and to date was never enforced.16

Clearly, the aforementioned legal situation is very complex. It can hardly be expected that about-to-be-married couples would master its intricacies and be able to accurately ascertain the legal implications of the path they choose. Nevertheless, our findings indicate that many couples are aware of the complexity, and are preoccupied by these issues to varying degrees. To our surprise, the criminal aspect of the private path hardly played any role in the considerations. Our discussions shows that while couples perceive the social and legal legitimations of their marriages as separate processes, and privilege the former over the latter, it is the form of legal legitimation they enjoy as de facto partners that contributes to the overall legitimation of their marriages.

4. Materials and Methods

The findings presented below are based on a qualitative research design of semi-structured in-depth interviews. These interviews included questions focusing on the motivations of the couples leading to a wedding outside the Rabbinate; the pros and cons of this choice; their surroundings’ reactions; the nature of the ceremony; whether they held a civil ceremony overseas and registered as a married couple in the Ministry of Interior; and their views regarding related political and social issues. These gave a broad perspective regarding how couples viewed their marriage in terms of both social and legal legitimacy.

The sample included forty different-sex couples who are eligible to marry via the Rabbinate but chose not to, and either chose to remain unrecognized in the eyes of the State, or were married in an additional civil ceremony abroad and then registered as married upon their return. Most interviewees were in their early to late thirties during the time of interview, with several couples in their mid to late twenties and others in their forties and early fifties (oldest interviewee were 51 years old). Interviewees live in diverse Israeli locations, some in large cities such as Tel Aviv, Haifa, Jerusalem, and Be’er-Sheba, and others in more peripheral towns and rural settlements.

A number of snowballs were utilized, with interviewees located both electronically, through Facebook groups dedicated to weddings outside the Rabbinate, and through researchers’ personal connections and referrals by other interviewees. The third author conducted the interviews. Interviews were held between 2019 and 2021, with the first eight held in-person and the rest conducted via Zoom due to Covid-related restrictions. The interviews were recorded and transcribed and all identifying details were changed (the names mentioned in this paper are pseudonyms). Following transcribing, researchers identified and extracted repeated themes. The themes that were most pertinent to the research questions were further analyzed to attain more nuanced data. The study was authorized by the Ethics Committee of Bar-Ilan University.

An examination of the eighty participants presents the following demographics: forty-five defined themselves as “secular”, nineteen as “religious”, twelve as “formerly religious” or “traditional” (masorati), and four as “Reform” or “Conservative.” In addition, the interviewees responded to questions regarding their ethnic (Jewish) descent: fifty-seven respondents were of Ashkenazi (European) descent, five of Mizrahi (Middle Eastern and North African) descent, fifteen of mixed Ashkenazi and Mizrahi descent, and three respondents did not supply information regarding their origins. Some of the Mizrahi interviewees were raised in religious or traditional families. These interviewees told us that their decision to marry outside the Rabbinate was a conflicted one, due to their families’ objection. However, a similar objection was also displayed in religious Ashkenazi families. The ethnic affiliation in itself, therefore, had no significant bearing on interviewees’ marriage decisions; it was, rather, a parameter in a more complex matrix of social identifications.

At first glance, it seems that the distribution of respondents does not necessarily reflect the demographic and social distribution of these groups in the general Jewish Israeli population. During the data collection phase, we actively sought out couples from demographic and ideological groups that were underrepresented in our sample (such as couples who chose this path without a concrete ideological agenda, Mizrahi couples, and couples who deliberated between marrying through the Rabbinate and a private ceremony). Our active search for these groups yielded very few interviewees. We therefore believe that the sample offers a comprehensive range of perspectives that reflect the prominent motivations, conflicts, and debates that play out in couples’ decisions to marry outside the Rabbinate.

5. “A Wedding for All Intents and Purposes”—Tradition as a Social Legitimation Process

Until recently, marriage struggles in Israel focused on promoting civil marriages in campaigns that are mostly perceived as “secular” struggles against the “religious coercion” of the Chief Rabbinate (Ben-Porat 2013). Our study portrays a different process. While over half of our interviewees identified as secular (45 out of 80), the remainder (35 out of 80) identified differently (i.e., as either religious, formerly religious, traditional, Jewish Reform or Jewish Conservative). This demonstrates that weddings outside the Rabbinate are not synonymous with a secular cause. Moreover, most of the couples we interviewed (37 out of 40) chose a ceremony that included elements from the halakhic ceremony or even a fully halakhic ceremony, irrespective of their level of religious observance.

Weddings outside the Rabbinate allow couples greater freedom in designing their ceremony than the State route. Accordingly, our sample shows diversity in terms of the contents, form, and characteristics of wedding ceremonies. And yet, most couples viewed their wedding ceremony as a “traditional Jewish ceremony” or as a ceremony that closely related to “tradition.” Based on Johnson et al.’s (2006) model of social legitimation, we argue that couples’ emphasis on “tradition” contributes to the acceptance of these weddings as socially legitimate within the social circles of these couples.

Many of the couples contended that their ceremonies were “traditional” because they included elements from the halakhic ceremony that is identified with Orthodox Judaism in Israel (Prashizky 2017). This is true for those who chose a fully halakhic ceremony as well as those who integrated only a few halakhic elements in their ceremony, religious and secular interviewees alike.

As explained above, halakhically-binding ceremonies, meaning those that include kiddushin and two eligible male witnesses, are also legally-binding in terms of Israeli law, regardless of whether the couple registered as married or not. It is no wonder, therefore, that couples whose ceremony followed halakhic standards considered their ceremonies as legitimate, both socially and legally. These couples, however, valued the halakhic “stamp” not only because of its legal validity but also for its social legitimacy.

Approximately half of the couples we interviewed married in ceremonies they viewed as halakhic. We do not analyze the halakhic status of these ceremonies; rather, we examine how couples perceived their ceremonies. These ceremonies included kiddushin and two male witnesses yet differed from one another in other aspects. The degree of women’s participation was the aspect that varied most between ceremonies. Some couples sought to integrate women as much as possible within the realm of what they perceived as a halakhic ceremony, while others did not include women, as per Israeli Orthodox conventions.

Couples in this group valued halakha for various reasons. Some couples emphasized that the social implications of a halakhic ceremony were as important as its legal–religious implications. Take, for example, Avshalom and Tehila, both in their mid-thirties and Ashkenazi. They were married over a decade ago. Tehila’s father, a Conservative rabbi, officiated the ceremony. Avshalom was born in Israel to a religious-Zionist family of a liberal-Orthodox orientation. Tehila was born in the U.S. and immigrated to Israel with her parents when she was a teenager. Both identify as religious and observant Jews. However, both were very critical of the rabbinical establishment in Israel, and when they decided to get married, they did not want to utilize the State route.

Tehila explained that they wanted a ceremony that would reflect their egalitarian worldview and lifestyle and that would allow greater participation for women than the conventional Orthodox ceremony. At the same time, she said, they wanted a “halakhic ceremony,” that would allow them “to maintain as many traditional elements as possible.” The traditional elements, she said, were necessary so the ceremony would be “familiar” to them. Avshalom concurred: “Our guideline was that it would have to look like and feel like the traditional ceremony, only that its guiding values would have to change.”

At the time, they did not have many role models who had designed a more egalitarian halakhic ceremony to turn to and had much “leg work” to do when designing their ceremony. To them, a traditional ceremony meant, first and foremost, a halakhic ceremony. However, it was halakha as they interpreted it, rather than the halakhic ceremony that is offered in the Rabbinate’s route. Avshalom’s words above demonstrate that halakha signified “tradition” to them in more than one way. They cared about the halakhic validity of the ceremony but also that it would be “familiar” and would “feel like and look like” the traditional (i.e., halakhic) ceremony. Hence, the appearance of the ceremony and the sensations it evoked were critical dimensions of its social legitimation.

Meital and Na’or are another example. Both were in their early thirties at the time of the interview, and were born in Orthodox, religious-Zionist households, attended religious schools, and consider themselves religious. They married in 2019 with the help of Chuppot, a non-for-profit organization that offers private weddings according to halakha. Both did not want to marry through the Rabbinate’s route: Na’or because of his political criticism of the religious establishment as “undemocratic,” to use his words; Meital for her feminist worldview. It was clear to them that they wanted a halakhic ceremony, nevertheless. The fact that there was an organizational route that offered halakhic weddings outside the Rabbinate helped them in choosing this path.

Their decision to marry outside the Rabbinate was not accepted easily by their Orthodox families. Meital said that the harshest reaction was from her grandfather, who was “in tears” when he heard of their decision. To him, Meital said, a wedding outside the Rabbinate was a “disruption of the chain of generations.” At first, they considered cancelling their plan and marrying through the Rabbinate instead. Eventually, after deliberating with family members, they decided to go along with their plan but to “keep quiet about it.” That is, they agreed not to publicize the fact that their wedding would not be through the Rabbinate and that the ceremony would not contain elements that would be considered controversial by Orthodox standards. This mostly meant that Meital gave up her wish to have women recite some of the blessings under the Chuppah. This is how she described it:

Because the step we took was so subversive, it was important to us that the whole process, the whole ceremony, be very-very traditional. I always wanted women to recite the blessings at my Chuppah and it did not happen […] It was very important to us that [the officiator] would be a rabbi who looked like a rabbi […], that no one would be able to say that there was any halakhic flaw with our wedding.

And Na’or confirmed: “Nobody knew that it [the wedding] was outside the Rabbinate, except for the people we told, because it looked ordinary.”

To Na’or and Meital, it was not enough that they viewed their ceremony as halakhically binding and thus “traditional”; it had to be recognized as such by their families and friends. The halakhic “appearance” of the ceremony—the rabbi who looked like an [Orthodox] rabbi, the exclusion of women from the Chuppah—is what gave the ceremony its social legitimation in the eyes of their families and social circles, despite the fact it was not conducted through the State Rabbinate.

As mentioned above, couples who married in a ceremony which only included some elements from the halakhic ceremony, or who modified the ceremony in various ways, still tended to describe their weddings as “traditional.” For example, Ran and Nili, both Mizrahi and in their early thirties at the time of the interview. They were married in 2019. When asked for a preliminary definition of their religious orientation, they identified as “secular”. Yet, tradition was a primary theme in their wedding story. When asked to describe what was important to them as they were planning their wedding, Nili recounted:

One of the things that we cared about the most was tradition. It was beautiful to acknowledge that our parents and grandparents got married in a ceremony that is ultimately identical to ours. It passes from generation to generation […] And it characterizes us as a Jewish people. We wanted to preserve this.

Nili and Ran wanted to “preserve” a sense of continuity with how they believed Jewish weddings were held in previous generations. At the same time, they wanted to amend the ceremony, so it better reflected their values and lifestyle. They contacted a female Reform rabbi, and with her help, modified the ceremony to reflect greater gender equality. The ceremony did not meet halakhic criteria of kiddushin but maintained the basic elements of the ceremony such as a Chuppah, the traditional seven blessings, blessing over the wine, the giving of a ring, and breaking a glass. Ran said, “I think that if it was a man [officiator], our ceremony would have been very similar to the ordinary ceremony and people would not have noticed any difference.”

To Ran, a “traditional” ceremony was one that resembled the “ordinary” ceremony. By “ordinary,” he referred to the conventional Orthodox ceremony with a male rabbi and with key elements from the Orthodox ceremony. According to them, these elements allowed them to design a ceremony that was “identical” (in Nili’s words) to what was practiced by previous generations. Such a ceremony allowed them to feel part of an imagined community (Anderson 1983) of Jews in the past and in the present. We say it is imagined because whether or not Ran and Nili are historically accurate in their conviction that their wedding was “identical” to weddings of previous generations of Jews is irrelevant. What is important to our analysis is their perception that maintaining core elements that are recognized in today’s Israel as essential to Jewish weddings allows them to continue Jewish “tradition.” Anat and Itai are another example. They identified as secular and Ashkenazi, and at the time of the interview were in their late forties. They were married in the mid-1990s in a non-halakhic ceremony held by a female Conservative rabbi. They are de facto partners and have adult children. Although they are from secular homes, they emphasized that it was important for them to hold a traditional ceremony. When asked how they perceived their status, Anat said: “married”. When asked what this self-perception was based on, she said:

We got married. We simply got married. A wedding for all intents and purposes. Before we were single and afterwards, we were married. We exchanged rings, we broke a glass. It was a wedding, for me. And it really was a wedding.

Anat and Itai, as well as the two previously mentioned couples, demonstrate the vital importance of Judaism and Jewish tradition in Israel, even for people who identify as secular. Customs that are perceived as “religious” or “traditional” are considered legitimate. Accordingly, weddings that combine “religious” or “traditional” customs are considered legitimate even when they lack halakhic or legal validity.

This finding is somewhat surprising because in the cultural and social imagination of Israeli Jews, the Rabbinate is perceived as representing “true” Judaism (Ferziger 2014; Prashizky 2017). And yet, to the couples we interviewed, their wedding ceremonies were “traditional” despite of their divergence from the Rabbinate. In fact, a few interviewees considered this divergence as essential to a traditional Jewish wedding. To them, the traditional aspect of their ceremony connoted a sense of continuity with Jewish culture while the Chief Rabbinate has “disrupted” this continuity. Nurit, one of our interviewees described it succinctly when she said: “The Jewish people have had a route to marriage. The Rabbinate has ruined it.”

According to Nurit, Jewish communities through history relied on communal resources and on religious communal authorities to conduct weddings. In Israel, the authority to officiate weddings and to administer the formal aspects of marriage has been allocated to state institutions and officials. This, to her and to other interviewees, is a violation of “traditional” Jewish marriage.

Going back to sociological and anthropological understandings of tradition as attitudes towards the past that tell us about the present of a specific community (Clifford 2004; Yadgar 2011), these findings regarding weddings outside the Rabbinate demonstrate the significance of “tradition” in current struggles for social legitimacy of marriages outside the Rabbinate. Our interviewees’ narratives accentuate the paradoxical consequences of this reliance on “tradition.” By connecting their ceremony to tradition, we argue they are signaling that their action is “within the fold” and therefore legitimate in social terms (Johnson et al. 2006). Hence, in their efforts to establish the legitimacy of weddings outside the Rabbinate, those who oppose the Rabbinate utilize “traditional” elements identified with Orthodox weddings, similarly to weddings conducted by the Rabbinate.

6. “You Are Married and That’s It!”—De Facto Relations as a Form of Legal Legitimation

Tradition has contributed to the social legitimation of weddings outside the Rabbinate across cases, regardless of couples’ religious observance. Among couples who chose not to be registered as married, we found that the rights and benefits granted to them as de facto partners also contributed to their self-perception as married and to the overall social acceptance of their wedding as a legitimate way to be viewed as a married couple.

Overall, we found that full-fledged legal legitimation, i.e., the formal recognition of the State, was less important to our interviewees than social legitimation. Twenty-six of the couples we interviewed (65%) stated that they do not plan to register as married in the Ministry of Interior’s Population Registry. Instead, these twenty-six couples are considered by the State as de facto partners.17

Couples who chose to remain de facto partners told us that they did not encounter any bureaucratic or societal obstacles due to their decision. Furthermore, they told us that they considered themselves married and that they are accepted as such by their families, friends, and even by wider social circles. Osnat and Yotam are one of these couples. Both are Ashkenazi and in their late thirties. They have two young children and have been married for over ten years. They married in a halakhic ceremony conducted by an Orthodox rabbi. When asked whether they had considered registering in the Ministry of Interior, Osnat said they thought about it, but in the end decided to make do with signing a cohabitation agreement. This is how she described the institutional and societal recognition of their marriage, although they are not officially married:

We have two children, we have joint property, it really doesn’t matter [that we are not officially married] […] On the other hand, we don’t have the same surname, so we have all kinds of funny situations. For instance, for reserve military duty, I didn’t have where to register him [Yotam]. In the beginning, they put him under “brother,” they didn’t have the right rubric for him. In the end they said, enough! you are married and that’s that! So as far as the military is concerned, I’m married.

This quote demonstrates what we heard from many couples—that as de facto partners, their lives are similar to those of married couples in terms of legal rights and in terms of societal recognition of their relationships.

It is also clear that for the couples we interviewed, who were all well informed as to the course of de facto relations, official state-recognition was not a priority. Most of these couples were not opposed to the state’s recognition of their marriage in principle. On the contrary, they said that they would be interested in registering if there were an official route which was completely detached from the Rabbinate and the rabbinical courts. Since no such route exists in Israel, they chose not to register because they did not want to “tie their fate” to the Rabbinate, as one of our female interviewees put it. All the interviewees—including those who registered at the Ministry of Interior—were aware that the State’s official recognition would mean that should they divorce, they would have to do so in the Rabbinate’s courts. Many interviewees, mainly the women, stated that they wanted to avoid these courts due to women’s vulnerability in religious divorce cases.

Granted, we do not argue that being de facto partners is identical to being married. Several couples told us that as de facto partners they had to go through bureaucratic procedures which would have been avoided were they married. Einat and Arik, for example, married a decade ago in a halakhic ceremony officiated by a male relative. Both are in their mid-thirties and were raised in Orthodox households. They recounted that when they had a child, they had to formally declare that Arik was the child’s father in order to be registered as such in the Population Registrar records. For married couples, the husband is automatically registered as the father of the child. But even when considering this bureaucratic hurdle, Einat and Arik maintain that being de facto partners had no implications for their daily lives. They told us that even their parents, who originally objected to their decision to marry outside the Rabbinate and remain de facto partners, were placated once the children were born and were now “proud” of that decision. This is how Einat had summarized this issue:

Who remembers that event [the wedding]? Who remembers the arguments we had with our parents? […] It does not impact our lives. We have two children, we fulfil our obligations, we are granted with all the rights […]. At the end of the day, it is meaningless.

This case is only one example. We heard similar accounts from other interviewees who chose to remain de facto partners. These couples self-identify as married and are accepted as such by their families and social circles. They are not formally recognized as married but enjoy sufficient rights and benefits to render their legal status acceptable. The extent of the legal recognition they enjoy is enough to contribute to the societal acceptance of their relations.

In considering the social and legal implications of de facto relations versus marriage, it is important to also consider couples who did seek a formal recognition in their status as married. Fourteen of the couples we interviewed (35%) sought to be registered as married at the Israeli Ministry of Interior following a civil wedding ceremony overseas.18 Most of these couples explained that their decision was due to pressure from their families, who wanted them to be legally married, or concerns regarding potential bureaucratical complications. For those who did register, the Rabbinate’s potential involvement in the case of future separation was considered a “necessary evil” to be endured in order to gain State recognition. While this might be viewed as a wish for legal legitimacy, it seems to originate more from external factors (such as the interviewees’ parents), thereby signaling that the social aspect of legitimacy is a strong factor in legal legitimacy as well.

Perhaps the most significant finding regarding this issue is that couples who married overseas because they wanted the State’s official recognition considered the wedding they had in Israel their “real” wedding which changed their status from “single” to “married”. Civil marriage, whether before or after the wedding in Israel, did not affect their self-perception. See, for instance, Shlomit and Yogev. Both are in their late twenties and identify as secular. They were married in 2019 in a civil marriage in Cyprus and registered in the Ministry of Interior. A few months later, they had a wedding in Israel with a ceremony incorporating elements from the Jewish ceremony. They told us that they did not wear their wedding rings after their civil ceremony in Cyprus; only after their Israeli wedding, which was not recognized by the authorities, did they start wearing rings. When asked about their wedding date, they reply with the date of the Israeli wedding.

Another couple, Re’ut and Micky, responded similarly. They are in their early thirties and identify as secular. They held a private wedding in Israel in 2020 and the following year travelled to Cyprus to marry in a civil ceremony so they could formalize their status. This is how Re’ut depicted her two weddings:

I considered the Cyprus wedding as means to an end. The end being to be formally recognized as married […] The wedding in Cyprus was secondary. It is funny because that was the ceremony that ultimately gave us the “stamp.”

Other couples who married abroad replied similarly: the wedding that “counted,” they all said, is the ceremony they planned and designed in Israel, and that was attended by their families, friends, and colleagues. Following that ceremony, they began to self-identify as married and were recognized as such by their families and social circles. They view their Israeli weddings as a public declaration of their status as married that was more valuable to them than the wedding ceremony that had actually formalized their status. In this sense, social legitimation seems independent of legal legitimation and is ranked above it.

However, we maintain that the option to be recognized as de facto partners is a crucial factor in couples’ decision to forego State legal recognition. Couples who have remained de facto partners may claim not to be bothered by the State’s recognition, but without the de facto venue they would not be able to take that position. This demonstrates our formulation of the different layers of legal legitimacy: the couples can afford to forego the ultimate legal legitimacy in the form of registration only because they are guaranteed legal legitimacy in the form of conferral of protection, rights, and obligations.

7. Conclusions

Marrying through the Rabbinate, which automatically entails the formalization of marriage status, is still the “default” path for most Jewish couples in Israel. And yet, our study shows that many of the couples who choose otherwise do not seek to formalize their marriage through registration, nor do they feel that they need this layer of legal legitimation. Ostensibly, it seems that the most important element in the legitimacy of their marriages is the social aspect: it is imperative for the couples that their social circles accept their marriages as legitimate irrespective of the formal dimension. In other words, they seem to distinguish between legal and social legitimacy, and accord greater importance to the latter.

As our discussion shows, this legitimacy is enabled by the acceptance of these weddings and marriages as continuing Jewish “tradition” and by the legal rights and recognition secured to them as de facto partners. This layer of legal legitimacy plays a key role in couples’ preference towards social legitimacy. This insight offers a new angle to understanding processes of social and legal legitimations. As outlined in the Introduction, most sociological and legal analyses of these concepts do not treat them as separate. Our study reveals a more nuanced and complex interplay in which these processes are perceived as separate (by the couples) while, in fact, they are interconnected.

The salience of “tradition,” which we have portrayed in our analysis above, is not unique to our case study. Debates about what counts as “legitimate” Jewish religiosity, and about who gets to decide what it consists of, prevail in the public discourse in Orthodox society (Kravel-Tovi 2017; Leon 2014; Ferziger 2014). We therefore recognise that what people consider as “tradition” in a specific place and time teaches us about their present more than it teaches us about the past (Yadgar 2011). As our discussion demonstrates, in certain social circles in contemporary Israel, a wedding that circumvents the authority of the State is considered socially legitimate as long as it is “traditional.” “Tradition,” therefore, is a valuable currency in struggles for social legitimacy in today’s Israel, utilized both by state institutions and by those who challenge them.

Ultimately, our study demonstrates how the social definitions of a married couple acquire new meanings. A couple’s social environment, and even official institutions, can consider them married after a ceremony which is not legally recognized. Future studies are needed in order to examine the social and legal ramifications of this new development, which, despite its presently limited scope, reflects a change in the social conventions related to marriage, and one which is developing in the heart of the consensus of Israeli Jewish society.