Report from Israel: Registration of Same-Sex Marriage
The Israeli Supreme Court on November 21, 2006 accepted the petitions of five same-sex Israeli couples who married in Toronto, Canada and requested to be registered in the Israeli population registry as married. (HCJ 3045/05 Ben-Ari v The Director of the Population Administration in the Ministry of the Interior).
The Majority Opinion
The 8-1 decision, one of the last to be written by the Court’s President (retired) Aharon Barak, did not address the question of the validity of the marriage, but rather whether the registration clerk, acting under the Population Registry Law, acted lawfully when he refused to register the marriage.
It should be noted that under Article 3 of the Population Registry Law a few items registered in the population registry constitute prima facie evidence to the truth of these items. The personal status clause is not one of them.
The leading precedent ruling the case was HCJ 143/62 Funk-Schlesinger v Minister of Interior. The case involved a Christian woman and Jewish man who married in Cyprus, and asked to be registered as married in Israel. (Consider that in Israel marriage is conducted only under one’s personal religious law by state recognized religious officials). In that case the Court held that the couple should be registered as married, based on the fact that the population registry does not consist evidence to a status but is rather a statistical database.
Thus, the Court held that in accordance with the law, the clerk should register such changes in the status section of the population registry based on the person’s notification, accompanied by a public record. The validity of the marriage, held the Court, is not within the scope of issues to be considered by the population registry clerk. In Funk-Schlesinger the Court held that its decision does not address at all the question of the validity of the marriage. The Court added that the clerk can refuse to write the facts that are being asked to be registered, only when they are manifestly wrong. The example brought by the Court and cited by in its current decision, is of a person who looks as an adult but asks to be registered as a five year old child.
The Court discussed in detail the history of Funk-Schlesinger and its expansion beyond marriage to other matters within the Population Registry Law, including its decision in HCJ 1770/99 Berner-Kadish v. Minister of the Interior that mandated the registration of two mothers to a child who was adopted by his mother’s same-sex partner in California. (Later the Court held in C.A. 10280/01 Jaros-Hakak v. Attorney General that second-parent adoption is possible under Israeli law. However, the Berner-Kadish decision itself is still pending a further hearing which the Court agreed to conduct on the matter before an expanded panel).
The Court also mentioned the criticisms of Funk-Schlesinger in both academic writings and dissenting judicial opinions, which pointed to the fact that the approach of “statistical registry only” ignores the reality where the registration has broader implications. But in the current case, the Court was not asked to review Funk-Schelsinger, which, as it stated, was relied upon by all parties. The State, however, argued that same-sex marriage is a legal formation not recognized in Israel and thus Funk-Schlesinger should not apply to this case. “Marriage” within the population registry, argued the State, means marriage within the basic “legal formation” in Israeli law, which is marriage between a man and a woman.
The Court rejected this argument, and determined that its implications are that the decision made by the population registry, and judicial review of such decisions, will consider the existence or lack thereof of “legal formats”. This, held the Court, stands contrary to current doctrine, and the registration sphere should not be the area where legal struggle about personal status is conducted.
The State further argued that the life together of “homosexual couples” is a “social format with certain legal ramifications”, and that “the state of Israel recognizes same-sex couples, in many contexts”. This recognition, said the State, is given in social-economic aspects and in the matter of residing legally in Israel. The Court agreed and cited what it called a “partial list” of such rights recognized by courts, including inheritance rights and other social rights. But it noted that the state’s argument about a non-recognized “legal format” is actually an attempt to address the question of personal status.
The implications, held the Court, would be that the registration clerk would examine the question of status, and this stands in stark contradiction to Funk-Schlesinger. The Court noted that the State did not make a public policy exception argument before it, and its attorneys even said explicitly in reply to a question during oral argument that it was not making such an argument.
The Court rejected the State’s argument that the registration of “homosexual couples” as married can be denied as it seems “manifestly wrong”, saying that the “manifest wrongfulness” that Funk-Schlesinger addressed is a factual one, whereas in this case the state argued a legal wrongfulness, and also adding that the question is nor whether same-sex couples can marry in Israel, neither whether Israeli law will recognize same-sex marriage conducted in a place where they are valid. The latter question, said the Court, is a complex one, and in any case the decision concerning it should not be made as part of the registration and judicial review thereof.
The Court further addressed the State’s argument that the question of recognition of same-sex marriage is one on which there is no social agreement in Israel and is a question of values best left to the legislature. The Court agreed but recalled that the question before it is not whether same-marriage can be conducted in Israel.
The Court thus held that as part of the statistical registration capacity of the population registry, the registration clerk must register in the population registry that the couples are married, in accordance with the public record presented to him. The Court held that it does not hold that same sex marriage are recognized in Israel, it does not recognize a new status of such marriage, and does not take a position about the recognition in Israel of same-sex marriage. The answer to these questions, held the Court, is a complex one, and it should be hoped that the Knesset [Israel’s Parliament] would address them.
The Court’s new President, Ms. Dorit Beinish, added a short concurring opinion, where she noted that the fact that the registration and the declaration it entails is meaningful to the petitioners, does not detract from the legal separation between the question of registry and the question of personal status.
A dissenting opinion was written by Judge Elyakim Rubinstein. Judge Rubinstein wrote that we are no longer talking about a mere statistical tool, but of a social-public symbol, which is what the petitioners seek – rather than certain social or “practical” issues. Same-sex marriage, held Rubinstein, is a new issue and is within the domain of the legislature and not the Court.
Moreover, the average person does not distinguish between the registration and the recognition of status. Thus, the Court should have left the matter to the legislature. When a couple presents an Israeli ID card in which it is registered as married, the average person does not know to distinguish between registration and recognition of status. Thus the registration has practical and social implications in front of the public, the authorities and the legislature. Rubinstein said that one should distinguish civil marriage which is recognized in most countries, and thus should be registered in Israel, and same sex marriage, which is recognized in only about 3% of the world’s countries.
The petitioners, said Rubinstein, are worthy of human dignity, and indeed social, economic and human rights of same sex couples were recognized in Israel. But this petition is not about those issues and not about the maintenance of the petitioners’ rights as citizens and human beings entitled to dignity and equality. This is a question of recognition of a symbol and not of practical effects. Rights depend on status which is in any case not addressed here, and not on registration, which is not even prima facie evidence of its content.
Rubinstein also noted that the Court should be careful of entering issues of public controversy, especially when human rights are not really violated – and in this case, there is no violation other than a symbolic one. Rubinstein cited to the Hennefeld decision, where the New Jersey Court rejected a petition to recognize same-sex marriage held in Canada, even though New Jersey does not have a Defense of Marriage Act. He noted that although the case pertained to recognition (not registration) it is of relevance.
He also mentioned the recent Lewis v Harris decision from New Jersey, which left the question of how to call the format for recognition of same sex partnerships to the legislature – even if they must be accorded equal rights. The Court’s decision, said Rubinstein, is about giving a public state stamp of approval to a new form of family, recognized only in a small minority of the countries on earth.
In order to understand the implication of the decision, one should consider that at least tens of thousands of opposite-sex Israeli couples married abroad (mostly in Cyprus) and registered as married in Israel, because they did not want or could not marry under Israel’s religious marriage system. In reality, in daily life, these couples are treated as marriage for all practical purposes. It should be expected that the same will be true to same-sex couples who marry in Canada or in other jurisdictions that allow such marriage.
There is a risk that certain government agencies and third parties will invoke the fact that their marriage is only registered, not recognized in Israel. But in such cases, such couples may argue that they are discriminated against vis-à-vis opposite-sex couples who married abroad. It should be noted also that today same-sex couples enjoy, as both Barak and Rubinstein noted (and this is a positive element in both the majority and dissenting opinions), many if not most of the social-economic rights enjoyed by married couples, as reported by this author previously.
However, today the burden is usually upon same-sex couples to prove their relationship by means such as an affidavit. A registration as married in the ID card my take this burden off them – for those who can and wish to take the burden and expenses entailed in marrying abroad. From this perspective the decision may widen a gap between same sex couples who can afford such expenses and those who could not. Notably all five couples who petitioned the Court were male couples, maybe not a surprising fact given that women on average earn less than men.
The statutes governing adoption and surrogacy in Israel state that only a married husband and wife can adopt a child (other than in special circumstances to which the second parent adoption falls) or enter a contract with a surrogate mother. The implications of the current decision on the interpretation of these statutes is unclear but most probably it will not have any affect per se on issues of parenthood.
A question remains about how and where Israeli couples married in Canada can divorce. In a separate decision given on the same day as Ben-Ari, the Israeli Supreme Court held that the Rabbinical Court can end the marriage of an opposite-sex Jewish couple who married in Cyprus. That decision implied that the marriage is also recognized, not only registered, in Israel. In Ben-Ari the Court did not address these issues.
The distinction between registration and recognition should be understood as a mechanism that allowed Israel to de-facto recognized civil marriage, while formally not doing so. From this perspective the established existence of this distinction, opened the door to same-sex couples. The question remains as to whether this status-quo will be maintained once this door was opened.
Some lawmakers already announced their intention to initiate legislation that will overturn the Court’s decision. The chances for the passing of such legislation are still unclear, and it could also face possible challenge as unconstitutional under Israel’s Basic Laws. Given that the decision was given in an expanded panel of seven judges, a further hearing by the Court is not an option in this case.
Aeyal Gross (www.aeyalgross.com) teaches constitutional and international law at Tel-Aviv University. He is a member of the board of the Association for Civil Rights in Israel, which was one of the petitioners in this case. Nevertheless, the opinions expressed in the article are his own and should not be attributed to the Association for Civil Rights in Israel.