High Court Hints That It Won't Legalize Gay Marriage in Israel

At hearing of petition by leading LGBT organization, justices suggest matter should be resolved by the Knesset, not the courts.

A same-sex wedding ceremony takes place at last year's Gay Pride Parade in Jerusalem.
Olivier Fitoussi

A panel of High Court justices considering a petition that seeks to legalize gay marriage in Israel expressed empathy about same-sex couples’ situation at an initial hearing Monday, but suggested that the matter was probably one for the Knesset.

The petition, which was filed by the Aguda national LGBT task force, claimed that the inability of same-sex couples to marry in Israel is a violation of the country’s Basic Law on Human Dignity and Liberty, and of equal rights and family rights. The petition seeks a court order either recognizing same-sex marriage or transferring authority over marriage from the rabbinical courts to domestic relations courts.

In a practice going back to Ottoman rule in the country, all matters concerning marriage and divorce are handled by religious courts rather than through civil authorities. Rabbinical courts in Israel, which have jurisdiction over marriage and divorce of Jewish Israelis, apply halakha (Jewish religious law), which does not allow gay marriage. However, same-sex marriages held overseas are recognized in Israel for some legal purposes.

The High Court has yet to issue its formal ruling on the matter. However, at the start of proceedings, Justice Anat Baron said from the bench, “The question before us is civil marriage. It’s a weighty subject, an important subject, and there’s a lot to say about it here. There is no consensus in Israeli society, perhaps unfortunately, in this context,” she said. “The question is whether the solution needs to come from the court,” she added.

Justice Elyakim Rubinstein, who headed the judicial panel, and Justice Neal Hendel supported Baron’s stance. Nevertheless, toward the end of the hearing Baron noted the trend around the world in recognizing same-sex marriage, and asked how long religious law would apply to marriage in Israel.

The justices noted the major progress for LGBT rights in Israel in recent years. Rubinstein mentioned the recognition accorded same-sex couples with regard to pensions and inheritance rights, and inquired if same-sex couples who marry outside of Israel still encounter problems on returning to the country.

“The situation today is that tens of thousands of families in the State of Israel have uncertain status,” replied Hagai Kalai, a lawyer representing Aguda. “Some have had the resources to fly abroad, and then they get rights. We are aware of the very practical problems that this creates.” He also noted the symbolic aspect of marriage.

Yonatan Berman, representing the Interior Ministry and the rabbinical courts, and Gur Bligh, from the Knesset legal adviser’s office, opposed court intervention on the matter, saying the law does not support granting the petition.