Watchdog Lambastes Judge for Denigrating Gay Father of Twins

The judicial ombudsman yesterday blasted a family court judge's handling of a case involving a gay father of twins, saying Judge Philip Marcus had unacceptably denigrated father Dan Goldberg's sexual orientation.

Dan Goldberg Tali Mayer May 2009
Tali Mayer

Marcus' remarks were "unnecessary, hurtful and beyond the bounds of appropriate behavior," wrote ombudsman and former Supreme Court justice Eliezer Goldberg.

The case began last year, when Dan Goldberg asked the Jerusalem Family Court to authorize a DNA test to prove his paternity of two twins born in India to a surrogate mother. Proof of paternity was needed to obtain Israeli citizenship for the twins, and family courts had issued dozens of similar orders in the past.

But Marcus, who heard Goldberg's case along with those of two other gay fathers, initially refused to issue the order. "If it turns out that one of the people sitting here is a pedophile or a serial killer, these are things the state has to check," he declared.

Moreover, he asked, "what guarantee do we have that these children will become useful citizens of the State of Israel?"

Only two months later, after Marcus' refusal was overturned on appeal, did Goldberg get the order he needed. During this time, he was stranded in Mumbai with the twins, with no legal status, no insurance and thus no way to get them needed medical care.

In June, Yonatan Gher, director of Jerusalem's Open House for Pride and Tolerance, filed a complaint with the ombudsman. Gher argued that Marcus essentially accused gays of being pedophiles and serial killers unless proven otherwise. Moreover, he let his prejudice affect the outcome of a legal proceeding, causing Goldberg to stay in India unnecessarily.

Marcus told the ombudsman in response that he indeed believes a child does best with both a mother and a father. Moreover, this is the norm, so it requires no special investigation on the state's part. But a gay parent is not the norm, he said, and the state is therefore obliged to have the welfare authorities investigate before granting approval, just as it does in other nonnormative cases, like foster parents and adoptive parents.

Nevertheless, Marcus insisted, this has nothing do with his views of the men's sexual orientation, nor does he consider them presumptive criminals. He merely believes all nonnormative parenting situations must be investigated before being approved.

His question about the children's future, he added, stemmed from his 15 years of experience as a family court judge, which showed that children who grow up without a mother often have difficulties.

The ombudsman accepted Marcus' contention that the pedophile remark was not meant to hurt the fathers or the gay community, though he stressed that it was poorly phrased and unnecessarily hurtful.

But the second remark, he said, was clearly "an expression by the judge of a negative opinion of the applicants' sexual orientation and its impact on the children. This expression was unnecessary, hurtful and beyond the bounds of appropriate behavior."

He also criticized the unnecessary delay Marcus caused Goldberg.