A court in Israel has ordered the government there to recognize marriages conducted by an officiant in Utah between Israelis attending remotely via videoconferencing from Israel. Why, you ask, would Israelis be interested in being married under Utah law? Under Israeli law, as under the law of the Ottoman Empire and the British Mandate that preceded it, marriage is exclusively controlled by the religious communities in the country. The Israeli government appoints Jewish, Muslim, and Druze leaders as marriage registrars, and the Christian churches appoint their own leaders.1 I’m just going to focus on the Jewish community here. There is no civil marriage for Jews in Israel, which means, for example, that there are no inter-faith marriages in Israel. Because Orthodox Jewish law does not allow for same-sex marriage (in practice, the state only appoints Orthodox rabbis for the Jewish community, not rabbis from the more liberal streams of Judaism), there is also no same-sex Jewish marriage in Israel.
On the other hand, in general, the Israeli state recognizes as valid marriages contracted outside of Israel that were valid at the place of the marriage. This is an application of one of the main principles of conflict of laws, though there is a public policy exception. What makes Israel particularly interesting is that the majority in Israel is secular. For political reasons, the state has given the Orthodox a monopoly on questions of Jewish status. But the state has not asserted a public policy that is so strong that it would bar recognition, for example, of foreign same-sex marriages, or marriages that the Orthodox Rabbinate would consider inter-faith (for example, because one spouse is a convert or the child of a mother who was a convert, but the conversion is not recognized by the Orthodox). Therefore, Israelis sometimes travel abroad to get married and then return to Israel, where their marriages are recognized civilly. Cyprus is a typical destination.
Utah’s new law on remote marriages, which does not require the spouses to be present in Utah for the ceremony, takes the practice to a new level. A same-sex couple in Israel, for example, can stay in Israel and be married under Utah law on Zoom.
Okay, super-interesting, but why am I writing about it? For the same reason I wrote about a Virginia law allowing Virginia notaries to take oaths and acknowledgements from people outside of Virginia by video. For the same reason I’ve been writing about conceptual issues with service of process by email, for example at the Law’s Porosities conference in 2017. Modern electronic communication poses real conceptual puzzles in lots of areas of law that traditionally have turned on the participants in an act with legal consequences being in the same place at the same time. (I’ve also been litigating the issue of the location of electronically stored information, in Section 1782 cases and in others, which raises similar issues about locale, but I’m leaving it aside because it doesn’t involve the actors in a legally significant act being in the same place at the same time).
What’s new is the tendency to treat virtual presence via videoconference as actual presence (or, in the case of email service, virtual delivery as actual delivery by analogy to the post). Probably no one would have contemplated a statute allowing a notary to take an acknowledgement by mail, or to allow someone to solemnize a marriage by mail. But because there is a metaphor that treats videoconferencing as physical presence, there has been a push to give effect to the metaphor by statute. Probably no one would have contemplated a rule allowing a litigant to serve process by causing a digital file with an image of the summons to be stored on a particular computer. But because of the strong metaphor that treats the computer in question as a mailbox and that treats the process of transferring the file as a delivery through the post, such rules can now seem like common sense.
I think we have to take these case-by-case and to ask what policies are served by requiring personal presence. The most important of these seems to me to be the policy in favor of cautioning the participants in big transactions about the importance of what they are doing, or cautioning defendants about the importance of the papers being delivered to them. In the case of marriage, there may also be a policy of publicity. People are married in public, or at least their weddings are recorded in a public register in the place where they live, so that everyone can know who is married to who. These policies, it seems to me, can be weighty, and I think we have to consider the appropriateness of virtual presence case-by-case. My personal view is that it is not appropriate in the case of notarization and maybe not in the case of marriage, but that because service by post is so well-established, electronic service is a closer question (maybe receiving a certified letter that you have to sign for is still a better caution then getting an email that is easy to ignore). We also have to bear in mind that we might be wrong to think that tradition always supports the view that physical presence is essential. Take proxy marriage, for example (a marriage where one or both of the spouses is not physically present with the officiant). While it doesn’t seem to have been a thing in the common law, both the canon law and Jewish law allowed it. If you’re interested, there’s a really fun article from the early 20th century, Ernest G. Lorenzen, Marriage by Proxy and the Conflict of Laws, 32 Harv. L. Rev. 473 (1918), that outlines some of the history; and the Jewish law is discussed in Israel Herbert Levinthal, Jewish Law of Agency, 13 Jewish L. Q. Rev. 117 (1922)). I was surprised to learn that the State Department has a rule for how to consider proxy marriages for immigration purposes, focusing on whether the proxy marriage was later consummated! This reminds me of the distinction between marriage contracts in the present tense, which (perhaps) required only consent, and marriage contracts in the future tense, which required consummation. I’ll end with an aside, a scene from the wonderful Hilary Mantel’s Wolf Hall, that calls the cautionary or evidentiary importance of doing things in public into question. Cardinal Wolsey is dressing down Sir Thomas Boleyn, whose daughter Anne was supposed to marry into a drab Irish family, the Butlers but instead had had a fling with Harry Percy, the heir of one of the most important noblemen in the land. Wolsey suspects that Anne is “not enticed by the prospect of Kilkenny Castle and its frugal amenities, nor by the kind of social life that will be available to her when, on special occasions, she hacks on the poor dirt roads to Dublin.” “The difficulty is,” Boleyn says, “I think that Harry Percy and my daughter, they may have gone a little far in the matter.”
“What? You mean we are speaking of a haystack and a warm night?”
From the shadows [Cromwell] watches; he thinks Boleyn is the closest, smoothest man he has ever seen.
“From what they tell me, they have pledged themselves before witnesses. How can it be undone, then?”
The cardinal smashes his fist on the table. “I’ll tell you how. I shall get his father down from the borders, and if the prodigal defies him, he will be tossed out of his heirdom on his prodigal snout. The earl has other sons, and better. And if you don’t want the Butler marriage called off, and your lady daughter shriveling unmarriageable down in Sussex and costing you bed and board for the rest of her life, you will forget any talk of pledges, and witnesses—who are they, these witnesses? I know those kinds of witnesses who never show their faces when I send for them. So never let me hear it. Pledges. Witnesses. Contracts. God in Heaven!”
What a wonderful writer.
- See Akiva Miller, The Policing of Religious Marriage Prohibitions in Israel: Religion, State, & Information Technology, 31 J. Marshall J. Info. Tech. & Privacy L. 23, 24-25 (2014).