Tel Aviv’s mayor, Ron Huldai, announced on 21 June 2020 that the city will revise its digital registers, enabling same-sex couples to register their relationship. They would then be eligible for housing allowances and registration would ease enrolment of their children in publicly funded day-cares and schools. Opposite-sex couples who either cannot get married in Israel or who do not wish to marry pursuant to religious law will also be able to register. The move (perhaps inspired by San Francisco’s 2004 registry) prompted rebuke from the Ministry of Interior’s Population, Borders, and Immigration Authority (PIBA). PIBA remarked that, from the Israeli state’s perspective, the Tel Aviv registry will have no legal effect, as the 1965 Population Registry Law designates PIBA as the only authorised body to administer the designation of ‘personal status’ in the population registry as ‘single’ or ‘married’.
The challenge for same-sex couples lies in the fact that, personal status in Israel is governed by the 1953 Rabbinical Courts Jurisdiction (Marriage and Divorce) law, which assigns matters of marriage and divorce of Jews, who are Israeli citizens or residents to the ‘exclusive jurisdiction of rabbinical courts’. Marriages and divorces of other recognised religious groups- Christians, Muslims, and Druze- are governed, respectively, by their religious courts. Section 2 of the law stipulates that ‘marriage and divorce of Jews in Israel shall be officiated according to Din Torah (the law of the old testament)’. Jewish law as interpreted by the rabbinical courts does not recognise same-sex marriages. Consequently, though it is not illegal to conduct same-sex marriages in Israel, they have no legal force: only opposite-sex marriages between persons of the same religion do.
Many human rights issues arise from Israeli legislation and practices. In this context, the protection of LGBT+ rights can be considered a mixed bag. In 1992, Israel (unlike the United States…) prohibited workplace discrimination on grounds of sexual orientation. Relatedly, in the landmark 1994 Danielowitz judgment, the High Court of Justice (HCJ) upheld (by a majority) a male flight attendant’s claim that his male spouse receive a free air ticket every year just like opposite-sex spouses. Ever since, legal battles have seen the advancement of rights of co-habiting same-sex couples, utilising the concept of ‘Yeduim Be-tzibur’, a de facto civil union. Yet, apart from the symbolic harm caused by non-recognition of same-sex marriage, the absence of de jure civil union (or civil marriage) adversely affects same-sex couples, who must prove to every service provider that they satisfy the relevant criteria.
In 2010, the state has recognised de jure civil unions of opposite-sex couples who are registered in the population registry as having no religious affiliation, enacting the Civil Union Law for Citizens with no Religious Affiliation, which created a separate registry (‘Brit Zugiyut’). Attempts to extend civil unions to same-sex couples or to enact civil marriage have failed hitherto, notwithstanding overwhelming public support.
Unable to marry or to enter a civil union in Israel, same-sex Israelis have sought to marry abroad. In 2006, the HCJ (by a majority) upheld a petition filed by five such couples who had civilly married in Toronto. The petitioners demanded that the population registry change their personal status from ‘single’ to ‘married’. Notably, at that time, only four countries had legalised same-sex marriage. The HCJ applied the ratio of its 1963 Funk-Schlesinger judgment, concerning a marriage conducted in Cyprus between a Christian (Belgian) female and a Jewish (Israeli) male. The HCJ held that registering changes to personal status pursuant to marriages conducted abroad according to a foreign country’s law does not imply recognition of that status. Substantively, however, an Israeli that changes their registered personal status from ‘single’ to ‘married’ becomes eligible to certain social benefits, including a marriage tax allowance and national insurance payments. There are also significant immigration status ramifications for couples where one spouse is not an Israeli, given that the application of the Family Unification Procedure has been extended to same-sex couples.
Yet, that same-sex Israelis must travel abroad in order to marry is highly problematic. In 2017, the HCJ rejected a petition filed by the Association for LGBT in Israel, challenging the constitutionality of denial of same-sex couples’ access to marriage in Israel on equality and family life grounds, both derived from the right to human dignity in sections 2 and 4 of Basic Law: Human Dignity and Liberty (part of Israel’s incomplete constitution). The Petitioners demanded that the HCJ either adopts an interpretive ‘reading out’ of the application of the rabbinical courts’ exclusive jurisdiction in respect of same-sex couples, or that it would issue a declaration that the 1953 law regulating marriages is unconstitutional. The snag lies in the fact that the 1992 Basic Law includes a saving clause stipulating that it ‘shall not affect the validity of any law (din) in force prior to [its] commencement’ – an unfortunate political compromise that (arguably) enabled its passage.
Dismissing the petition, Rubinstein J noted that ‘it does not follow from the non-recognition of marriage status for same-sex couples, which is reserved for the legislator, especially given the savings clause, that substantive social and economic rights of members of the LGBT community should not be recognised…status and substantive rights are separate.’ Concurring, Baron J nevertheless recognised that it ‘is clear that denial of marriage status to certain groups in Israeli society sends them a message of inequality and even moral inferiority in that it is implied their relationships do not deserve dignity and protection’.
Tel Aviv should be commended for thinking outside the national box and seeking to ensure equal rights for all couples residing there, irrespective of their formal marital status. Yet, this local initiative highlights a fundamental flaw arising from the general absence of civil marriage in Israel.