In 2009, a couple from the village of Tayibe in central Israel were in the midst of a bitter separation. Their marriage had already dissolved in acrimony, with various legal battles under way, when the husband turned to the Islamic court and sued for arbitration.
The husband’s appeal to Islamic law was not a sign of his or his wife’s piety. For Israeli citizens of all faiths, divorce, like marriage itself, remains almost exclusively the province of religious law and institutions. Each recognized religious community—Muslims like this couple, but also Jews, Druze, and the various Christian denominations—has its own autonomous court system that rules on these personal status issues according to its own religious law. This is the reason why a couple of the same sex, or of different religions, cannot marry in Israel.
Gender inequality is built into the religious legal systems; this inequality is expressed in different traditions in different ways, but it is a trait that all share. In practice, the religious courts of all denominations are also consistently more lenient on men, in part because women cannot be appointed judges or hold other positions in the courtroom. For many women, the mere experience of sitting through a trial in such a hostile, male environment can often be degrading and shameful.
The particular remedy that the husband from Tayibe sought has a long history in Islamic jurisprudence. In arbitration, the judge orders each side to appoint a family member or other figure who will negotiate on his or her behalf to resolve the couple’s outstanding differences. If reconciliation proves impossible, the arbitrators can recommend that the court decree the marriage dissolved.
Little information has been publicly released about the couple; even their names have been withheld by a court order. However, this much is clear: The wife is a fighter. Knowing full well the consequences of her actions, she informed the judge that she had selected a woman to represent her as arbitrator.
The court balked. Islamic courts in Israel had never permitted women to be arbitrators, though Muslim legal authorities are divided on the issue and women can serve as religious judges elsewhere in the Islamic world (including the Palestinian Authority).
Predictably, the Tayibe court rejected the wife’s request, but, determined, she did not back down. After losing again on appeal, she took her case to Israel’s Supreme Court, and in a 2013 decision Justice Edna Arbel overturned the ban. Far from a narrow ruling on the issue at hand, the decision was used by Arbel to reinforce the centrality of gender equality in Israeli law and its application even to the religious court system. “The religious courts, like all courts and authorities of the state,” she wrote, “are subject to the basic principles of the system, including the principle of equality.”