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Before: President: A. Barak President: D. Beinish Vice President: A. Rivlin Justice: A. Procaccia Justice: M. Naor Justice: A. Rubinstein Justice: A. Chaiot Petitioners: 1. Yossie Ben-Ari 2. Loren Shomen 3. The organization for citizens rights in Israel
Decision: (Former) President A. Barak: Reuven and Shimon are Israeli citizens and residents, they conducted a civil marriage ceremony outside of the state of Israel, in a manner recognized by the state in which the marriage was conducted. Upon their return to Israel, they went to the [marriage] registration official. They requested that their entry in the [marriage] registry be changed to married. The registrar refused their request. Was his refusal legal? That is the question that each of the petitioners has placed before the court. And notice: the question before us is not whether the marriage between two same sex partners within the state of Israel, conducted outside of the state of Israel, is valid in Israel. The petitioners do not request that their marriage outside of the state of Israel be made valid in Israel. The question before is whether the [marriage] registrar – whose authority is derived from the census law of 1965, as detailed in the Funk Shlezinger case, (CITE) – acted within his authority when he refused to register the marriage of Reuven and Shimon in the registry. The petitions before us are directed at the limits of authority of the registrar, and not at the validity of the marriage. A. Petitioners 1. Before us are five petitions made by five couples. Each couple is composed of two men, both citizens and residents of the state of Israel. All petitioners live in Israel as a couple, and conduct a joint house and family life. They were married in a civil ceremony in Toronto, Canada, in a manner recognized under law in that state. Upon their return to Israel they wished to be registered as married in the Census Marriage Registry. Their petition was accompanied by documents as proof of their marriage. Their petition was denied. They were told that “These types of weddings are not recognized in the state of Israel, and as such, they cannot be entered into the registry’s files”. (From a letter written by the head of the census bureau, 24.5.2005). From here the petitions. B. The Claims of Each Side 2. The petitioners focus their claims on the authority of the registrar. They claim that the registrar’s refusal to register their marriage in Toronto violates the Funk Shlezinger case, and that it discriminates against the couple as compared to couples who are not of the same sex and harms their right to a family life. They claim that according to the Funk Shlezinger case, the registrar operates only as a collector of data. The registration in itself has no power to change status. As such, the registrar’s discretion when determining a request to register a marriage is minimal. According to the petitioners, once the registrar is presented with a verified marriage certificate, and once there is no doubt as to its validity, he must change the registry, and register the petitioners as married. The registrar has no authority to ask the question of whether the marriage is valid under the laws of the state of Israel, and whether the couple is eligible to wed in Israel. These questions are often complex and sensitive. In the opinion of the plaintiffs, these questions are difficult in the case before us as well. The registrar was not given authority to determine them.
According to the Funk Shlezinger case, so long as no judicial decision invalidating the marriage has been reached, the registrar is obligated to register them [the marriage] in the registrar. The petitioners mention that there has not been an Israeli judicial determination on the eligibility of same sex marriages conducted in Canada, in the Supreme Court or in the Lower Courts. Therefore no attention should be paid to respondents claim that the marriage is invalid, and it must be registered. The petitioners insist that this court repeatedly affirmed the Funk Shlezinger case since its initial ruling. It has been upheld in matters of personal standing in the context of marriage and adoption and parenthood. The decision has even been expanded to include the registrations of national and religious affiliation in the registry. The petitioners claim that this is a valid holding, and that it should be applied to their case. 3. Respondent requests that we deny the petitions. His position is that there is no room for the registration of same sex couples who were married in a foreign country. This position is based on three major rationales. Firstly, in Israeli Law, the legal paradigm of marriages addresses marriage between a man and a woman. There is no Israeli legal framework that acknowledges same sex marriage. The Funk Shlezinger case is not relevant to petitioners case. A distinction must be made between the registration of a marriage conducted outside of the state of Israel, valid as they may be, which correspond to the basic legal paradigm of marriage in Israeli law, and for whom the Funk Shlezinger case applies with respect to registration, and marriages which do not correspond to the basic legal paradigm of marriage in Israel. Secondly, respondent note that most of the world’s countries do not recognize same sex marriages conducted in another country, and do not register same sex marriages that were conducted in another country. Many countries have passed laws that explicitly declare marriage to be between a man and a woman, and that same sex marriages conducted in foreign countries are not to be recognized. Therefore, it is not possible to say that comparative law requires such recognition, since it is not possible to say that those few countries that do offer same sex marriages expect their marriages to be recognized in foreign countries. Thirdly, the respondent holds that the question of marriage registration for same sex couples is the type of question that should be settled by the legislature. A regulatory process should not be used in order to create a new legal framework against the wishes of the legislature. When passing the Census Law, the legislature did not view the law as a tool for creating new legal paradigms. On the contrary, the legislature intended that the registrar of the census bureau reflect the current legal paradigms in Israel in matters of personal status. The creation of a new category of personal status falls under the category of a primary arrangement, and is therefore under the purview of the legislature. Therefore, the legislature is the correct place to determine the status of same sex marriages. This is especially true since the question addresses controversial questions of public policy related to the fabric of society. C. The Process 4. The petitions were heard in front of a forum of three judges (President A. Barak, A. Rubinstein, and A. Chaiot). The triumvirates decisions (from 16.11.2005) gave both sides the opportunity to complete their claims. Furthermore it was held that the triumvirate was considering expanding its size, and that oral argument would be heard. The forum was
expanded (on 3.3.2006), and oral arguments were heard (28.5.2006). All sides mentioned before us that they were willing to view the petitions as temporary injunctions, and that the deliberation will be in light of them. D. The Legislative Framework 5. The Census Bureau Law of 1965 (hereon the registration law) calls into effect a census bureau. It is determined that in the census’ registrar details regarding residents are recorded. These details are determined in section two of the registration law. “The Registry and the details of registration 2. a. In the registry the following details regarding a resident shall be recorded, and any changes in them: (1) Family name, first name, and any prior names; (2) Parents’ names. (3) Date and place of birth (4) Gender (5) Nationality (6) Religion (7) Personal status (single, married, divorced, or widowed) (8) Spouse’s name (9) Children’s names, dates of birth and genders (10) Citizenships held now and in the past. (11) Postal address (11a) Postal address under the meaning of the law for updating of addresses, 2005, whenever a notice is given. (12) Date of entry into Israel (13) Date upon which residency is conferred as per section 1(a) b. A resident registering for the first time will have an identification number associated with his registration. The Census Law determines the validity of the registry (in part 3) using the following language: “The registry as apparent 3. Registration in the registry, all copies or excerpts from it, and all certificates that is given according to this law will be as apparent evidence to the correctness of the details of the registry, as they appear in sections (1) through (4) and (9) through (13) of section 2 [above]. Sections (5) through (8) were removed from the apparent evidence clause. These sections deal with issues of Nationality (5), Religion (6), Personal Status (7) and spouse’s name (8).
6. Chapter c. of the Census Law deals with the authority of the registrar. It is determined that it falls within the registrar’s authority to demand from an individual reporting a registration any documentation pertaining to that registration (Part 19(1)). He is also permitted to indicate the validity of any document or piece of information which he receives (Part 19(2)). The Law distinguishes between a primary registry and a later update. The primary registration shall be made by a public certificate, or, in the absence of such a certificate, by the announcement of the requester. Registration of changes – the framework under which the cases we are dealing with falls – shall be conducted as follows (Part 19(a)): “A change in the details of the registration of a resident shall be conducted in accordance with a document that is received according to parts (15) and (16) or by a document received according to part (17) that was received in conjunction with a public certificate indicating the change.” In the petitions before us, no documents were received under Part 15 (that deals with official actions within the state of Israel such as marriages that are registered in accordance with the marriage and divorce laws [of Israel]), and no documents were received under part 16 (Judicial determinations). The issues before us therefore fall under the purview of part 17 of the census law that determines: “If a change has occurred in a manner that is not detailed in parts 15 and 16 in the details of the registry of a resident, he must inform the registrar of this change within 30 days…” This message must be accompanied by a “public notice indicating the change”. The notice of the requester is not sufficient (See Tamarin v. Israel, 197, Shtedman v. Minister of the interior, 766, Psaro (Goldstein) v. Minister of the interior, 661, a “public certificate”, in the case at hand, refers to the same certificate mentioned in the “testimony law” which is the law of evidence (new version) 1971). In our case, these refer to marriage certificates produced by an authorized agent, according to Canadian law, in the location of the ceremony (see definition of a “public certificate” in part 29 of the evidence law). E. The Normative Position of the Census Bureau, and the Opinion of the Registrar 7. What consideration does the registrar’s opinion receive? This question has been dealt with in a long series of decisions. The major decision is in the case of Funk Shlezinger. Which was decided over forty two years ago. In that decision, Mrs. Shlezinger, a Christian resident of Israel, was married to Mr. Shlezinger, a Jewish citizen of Israel. The Marriage took place in Cyprus. On the basis of the Cypriot marriage certificate, Mrs. Shlezinger requested to be registered as married in the Israeli census. The minister of the interior refused her request. At the core of his refusal was the concept that according to existing international private law that existed in Israel, the couple were not married. In a majority opinion (Judges Y. Zussman, T. Baranzon, A. Vitkin, A. Mani, against the dissenting opinion of justice M. Zilberberg), a decision was reached. At the core of Judge Zussman’s opinion, was the concept that the census law of 1949 “did not equate with
registry in the census proof of anything. The purpose of the law is the collection of statistical material. This material may or may not be correct, and no one is vouching for its validity.” (p. 244, and Supreme Court Tsabari Chasan Abu-Rassi v. The Military Governor of the Galilee). In this context, it was decided that “the duties of the registrar are the duties of a collector of statistical information, with no judicial decision making power whatsoever”(244). Therefore, “When recording the personal status of a resident, it is not the registrar’s duty to give an opinion as to the validity of a marriage. It is good that the legislator did not place upon the registrar a duty that he is not equipped to fulfill. It is sufficient for the registrar to update the registry if documents are brought to him indicating the applicant has conducted a marriage ceremony.” (252) In a similar spirit, judge Zussman indicated that the Supreme Court, when deliberating over the refusal of the registrar to register the change in status of the petitioner, does not determine the validity of the marriage. “It is important to emphasize” writes Judge Zussman “that we are not dealing with the validity of the marriage, the question before us is… is there a justification for the registrar to refuse the request of a woman as married.” (242). Judge Zussman acknowledges that fact that there may be cases in which the incorrectness of the details which the petitioner request to register in the census register are plainly and undoubtedly incorrect. In these cases the registrar is not required to register the information. “the registrar is not required to use his authority in order to participate in an act of deception. When an individual who is clearly an adult comes to register as a five year old, there is no doubt that the registration is false, and that the act is one of deception. In this case, the clerk of the registry will be acting correctly if he refuses to register the requested details, and this court will obviously not make use of its power… to force the registrar to “falsify” census records.” (p. 243). 8. Since the Funk Shlenzinger case was decided, the court has followed it. Over time its power has increased. Changes in the Census Law did not reduce the power of the decision. In the Shalit case, where a ruling was made according to the revised law, Judge Y. Zussman wrote: “The authority vested in the clerk of the registry is not judicial in its nature, and his duty does not require that he make a decision in a judicial question. It is therefore unsurprising that neither law nor instruction granted the clerk of the registry the tools used by a court in order to discover the truth… A citizen coming forward to inform the registry as a matter of fact, as he is required by law, is considered to be speaking the truth [unless shown otherwise]. It is unworthy of the clerk to suspect those who are righteous… registration is not conditional on the clerk believing that the facts with which he is presented are correct… the registration is but an act of registering the details as they were granted to the clerk of the registry… the one exception to this rule is the case where a detail is visibly obviously untrue… such as the case where a grown man wishes to register as a five year old… in this case the clerk should refuse to register the information, since he is under no obligation to participate in an act of deception… as its name indicates, the census law is a law of census (registration in Hebrew). As its precursor, its purpose is the collection of statistical information. (Shalit v. The minister of the interior, 477, 506, 507, 508).
In this spirit was the law decided after these cases (See e.g. the Tamarin case, 227 and the Stedman case, 770). 9. The Funk Shlezinger case was tested in the case of “Shas” (United Eastern Observant Organization – Shas v. the administrator of population in the ministry of the interior, 723). In a majority opinion (President M. Shamgar, Judges A. Barak, M. Biyevski and G. Back, with Judge M. Alon dissenting), it was determined that the registrar must register the conversion [to Judaism] of an individual when presented with a document indicating conversion outside of the state of Israel. President Shamgar Wrote: “If after receiving details as described above, the clerk of the registry had a reasonable basis on which to believe that the information he received was incorrect, he should refuse to register on its basis (section 19b(b) of the above law, the census law). Incorrect information includes information that includes a lie (for instance, when there is evidence of deception, or that the person registering is in fact the member of a different religion), it can be understood from the instructions of the above law, that the clerk of the registry does not examine the validity of the religious conversion ceremony conducted outside the country, which the document he receives indicates. The certificate [of conversion] on its part, must indicate that such a ceremony took place in the above mentioned [foreign] Jewish community, and that a change in the registry is required. This understanding of the Clerk of the Registries duties with respect to registering individual’s religious and national affiliation, also rises from past court decisions, such as for instance the case of Shlezinger v. Minister of the interior (732).” Also the minority judge, Judge M. Alon assumed that “The Clerk of the Registry must register the details given in the certificate, unless he has a reasonable basis to believev that the details are incorrect. (citing the Shlezinger and Shalit cases)”. In that case, Vice President M. Alon thought that in light of the definition of the word “Jew” in the census law, the clerk of the registry had a reasonable basis to believe that the certificate he had received was false. 10. The Shas case deals with the registrar’s authority regarding nationality (element 5) and religion (element 6). This question was also dealt with in the Psaro (Goldstein) case. Former President M. Shamgar – in accordance with the opinions of president A. Barak, and justices A. Matsa, M. Cheshin, T. Shtrasberg-Cohen and D. Dorner, with T. Tal dissenting, indicated that “The census law [law of the registry] is a civil law with the purpose of gathering factual statistical information. The minister in charge of executing the law is the minister of the interior. It falls under his authority, and under the authority of his Clerks, to conduct the registration according to the information received from residents, and under the restrictions that were set forth in the judicial ruling … in the Shas case. When dealing with a primary registration, a clerk does not have the authority to question the validity of a conversion.” (688) 11. In the Psaro (Goldstein) case, the conversion in Israel of Mrs. Elian Chava Psaro (Goldstein) was dealt with. This question was not decided in that case. All that was
decided was that her conversion was not valid under the religious ruling of conversion. There was no decision indicating that the conversion process she went through was valid. Before the petitioner went through the conversion process, and before a ruling came down in her case, she married Mr. Uri Goldstein in a consular ceremony in the Brazilian embassy in Israel. The couple turned to the registrar, requesting to be registered as married. The registrar refused. His rationale was that a foreign consul does not have the authority to conduct a marriage ceremony in Israel. The Court (vice president A. Barak and justices A. Goldberg and A. Matsa) decided that according to the Funk Shlezinger decision, the clerk of the registry must register the couple as married. (Goldstein case, 89). I mentioned in my opinion that the question of whether a consular marriage is legal in Israel is a difficult question. Under these circumstances, the clerk of the registry must act on the basis of a public certificate which he receives pertaining to the marriage. In my decision I noted that: “Since the Funk Shlezinger decision, the Supreme Court has repeatedly held that “the duties of the registrar are the duties of a collector of statistical information for the purpose of managing records of residency, void of any judicial authority. (Zussman, 244). Therefore ‘the clerk must enter what the resident tells him to’ (249), unless dealing with a case ‘where the things being told to the clerk are obviously incorrect, and there is no reasonable doubt regarding their incorrectness’ (243). From here, if the couple show before the judge a valid marriage certificate, indicating a valid marriage ceremony conducted in a consulate in Israel, the Clerk must register the couple as married, unless the details are obviously false, or there is no doubt that the consul has no authority to conduct a marriage ceremony… since there is doubt, when a non-Jewish woman (citizen of whatever country) and a Jewish man (of whatever citizenship) turn to the registry and present him with a marriage certificate conducted in their consulate, the clerk of the registry must register them as married, since ‘the answer to the question of whether the marriage is valid has both proponents and opponents, and is not clear cut, and inquiring into these questions exceeds the authority of the clerk of the registry.’ (Funk Shlezinger Decision, 252). In this spirit, Justice M. Cheshin decided in one of the cases that “It is the duty of the registrar to register information which he receives (such as marriage), without having the authority to examine the legal validity of the information (such as whether the marriage is legal, see Shlezinger and Shalit cases) (Kontras inc. v. Ministry of Treasury, Internal Revenue Division, 289, 387). Justice I. Trikel turned to this approach in one of the cases mentioning that: “registering respondents as the children of the inheritees in their identification document at the time when they came to the country has no bearing on the recognition of these children as adopted children of the inheritees (on the legal relevance of the registry and other identifying documents related to the census law (1965) see Judge Zussman’s words in the Shlezinger case, Justice C. Cohen in the Shalit case, and President A. Barak in the Goldstein case). (Yehud v. Yehud, 865). 12. The Funk Shlezinger case was reexamined in the Berner-Kadish case. Here an order to adopt was given in the stat of CA, whereby the child of one of a single sex couple was
to be adopted by her partner. The couple returned to Israel. They turned to the registry to have their adoption registered. The registrar refused. His position was that from a biological viewpoint, two parents of the same sex is not possible, and that therefore the matter was clearly false. The petition was accepted. Justice Dorner stated: “In a continuing decision, beginning with the Shlezinger case, it has been decided that the registrar has no authority to decide what to enter into the registry, but must enter any information given to him by residents, unless ‘dealing with a clear and obvious falsehood, which is not in doubt’ (243). The registry before us does not change biological facts, but rather legal facts. (Berner-Kadish v. Minister of the interior, 368, 374). Judge D. Beinish joined in this approach. She acknowledged that at the core of the Minister of the Interior’s decision was the exception mentioned in the Shlezinger case, permitting the registrar not to register a clear falsehood, that is undoubtedly false. Justice Beinish then mentioned that the existence of such a falsehood was not clear in the case before the court: “In the case before us, the respondent does not have a ‘clear and obvious falsehood’ he can point to’; the detail under question is not a biological fact, but rather a complex legal question… respondent’s claim… that the request be denied due to biological impossibility, is simply rephrasing of the claim that adoption of a child of one single sex parent by his / her partner is not possible… In the absence of a claim regarding the validity of the foreign adoption… the clerk of the registry must register the adoption based on available documentation (p. 376).” The dissenting Jsutice, A. Zoabi, also expressed his opinion on the Shlezinger case. His conclusion that the adoption should not be registered is based on two reasons: Firstly the basis for the shlezinger decision was that registration of marriage has no evidentiary value [to the fact that the couple are in fact married], and is there for the sole purpose of gathering statistical information. In the matter of the adoption, the registration is of the names of the parents (part (2)), which provides a form of status quo evidence to its validity. Secondly, in order to make an adoption valid, it must be recognized according to the law for the recognition of foreign judgments (1958). Without this recognition, the judgment is not valid in Israel. In this manner it is different than a marriage certificate, which does not require recognition through registration. It is worth mentioning that the Berner – Kadish case has had another deliberation scheduled. This deliberation has yet to take place. 13. The next link in the Funk Shlezinger line of reasoning is in the Naamat case, (Naamat v. minister of the interior, 721). Plaintiffs went through reform or conservative conversion processes (in Israel or abroad). They wished to be registered in the registry as of Jewish religion and nationality. The registrar refused their request. We’ve decided in the Naamat case that the registrar acted incorrectly. The basis for our decision lies in the Funk Shlezinger case. And therefore I wrote (for the majority with vice president S.
Levin, Judges T. Or, A. Matsa, m. Cheshin, T. Shtrasburg-Cohen, D. Dorner, D. Beinish. A. Rivlin, with Y. Engelrad and Y Tirkel dissenting). “The Funk Shlezinger decision of forty years ago still stands. In all matters pertaining to the registration of religion and nationality, it determines that the duties of the registrar is that of ‘… a collector of statistical information in order to manage a registry of residents…’ (244). The registrar has no judicial authority, and is therefore unable to decide an open judicial question. When asked to make a primary registration, he must do so, even when the judicial validity of the request is unclear, so long as its incorrectness is not clear and obvious. When the clerk of the registry is asked to change an entry, a public certification must be attached to the request.” This approach was reiterated in the Goldman case (Goldman v. ministry of the interior, 385). Justice M. Cheshin wrote: “The census law is no more than an administrative-registrational law, with the purpose of maintaining a database on the population of Israel, and given that the law is what it is, there is no reason to allow it to decide on question that are clearly outside of its purview… the value of registration as a matter of principal is the value of registering statistical information, and that is its value in fact as well.” (393, 395). 14. The Funk Shlezinger case was criticized, (See e.g. “to the question of mixed marriages conducted before a consul in Israel”, “The Advocate” [Israeli Law Journal], 1995, 188). From its inception it was noted that the statistical characteristics of the census registry “belied its true significance”. (Judge M. Landuy, Gurfinkel and Chaklai v. Minister of the Interior, 2048, 2071). Judge T. Tal Emphasized that “the approach of purely statistical registration ignores reality.” (Psaro (Goldstein), 709). Judge Y. Tirkel added “I fear that today this approach may be seen as ignoring a problem, or turning a blind eye.” (Naamat case, 764). Judge Y. Engelrad stated that “If we are only dealing with an insignificant statistic, why so many arguments regarding registration? The truth is that the symbol here is also the substance, and without a certain world view, there is no determination on the matter of registration, and no statistic.” (Naamat, 757). Indeed, in the Naamat case, the state asked us to deviate from the Funk Shlezinger holding. This request was denied, where we noted that: “The Funk Shlezinger decision has grown roots in judicial decision making, and a heavy rationale would be necessary in order to cause us to deviate from it. Such rationales were not brought before us. The calim that state authorities rely on the information is not at all convincing. State administrative agencies should act within a legal framework. As such, they should be aware of the limits of the information in the census registry … given the exposure these issues have had – the public is also likely to be aware of limits on the validity of Census registry information in matters of religion, nationality and personal status… ‘are there only for the purpose of gathering statistical information, and do
not grant any special rights to the registree’ (Judge S. Cheshin in the case of Abu Ras, 1476). Indeed, the registry in the Census is ‘neutral’ to the struggles surrounding issues of religion, nationality and personal status, and should remain so. Struggles on these matters should be conducted when investigating the substantive rights at stake, outside of the context of the census registry.” (id. 745). Indeed, Funk Shlezinger is a good and worthy decision. It is incorrect to grant the clerk of the registry – meaning the minister of the interior – authority to make decisions about the fundamental fabric of Israeli society, without a specific law permitting him to do so. It is inconceivable that every time the minister of the interior changes, policy towards key issues fundamental to Israeli society will also change. These questions shold be determined by the people, and their representatives in the Israeli Knesset [house of representatitves]. So long as the Knesset has not had its say, these decisions should be kept away from the census registry. The Funk Shlezinger decision expresses this view point. Indeed, anyone interested in postponing decisions related to [national] symbols should support the continuation of the Shlezinger decision. “The law of the census is in its essence a technical law, and if we were to place upon its shoulders the heavy burden of dealing with fundamental questions, it would collapse. The census law was not intended to contain questions of religion and nationality, of what is the correct process of conversion, and who is and is not a Jew. These decisions are an historical matter, and given what they are, the claim that the registry should determine them is both strange and ridiculous. These decisions were left neither to the registry, nor to the courts supervising the registry’s activities.” (id. 395). Of course, the Funk Shlezinger decision does not preclude a judicial decision on the matters of religion, nationality and marriage. However, it does place this judicial decision in the appropriate light. Regardless of the technical decision in the matter of the registry, a substantive decision on the core issues may be arrived at. Thus for example, the validity of non-orthodox conversions shall not be determined in the artificial context of the duties of the registrar, (See Shas and Naamat cases), but rather in the substantive case of the law of return (See Tushbeim v. minister of the interior, 412). Changing the framework of the debate places these issues in the appropriate context, where the grand picture of values and rights that need to be taken into account are taken into account. 15. In the petitions before us, the state does not ask us to reconsider the Funk Shlezinger decisions. All sides have placed the Funk Shelzinger decision as a guiding light to their arguments. The petitioners indicated that they do not want a determination of whether their marriage in Canada is valid in Israel. The state is not requesting such a determination either. The dispute between the two sides is in regards to the extent of the Funk Shlezinger decision. Petitioners claim that the cases before us fall under the Fuink Shlezinger decision. The registrar must register the changes in marriage status presented in the Canadian marriage certificate without inquiring into the validity of the certificate in Israel. The state, on the other hand, claims that same sex marriage is not a form of
marriage recognized in the state of Israel, and therefore falls outside of the Funk Shlezinger decision. The state writes: “A distinction must be made between registering a foreign marriage that conforms to the legal framework of marriage in Israel, regardless of their validity, and the registration of a marriage that does not conform to this legal framework. (Paragrpah 35 in respondent brief, 23.3.2006). The determination of this question will now be addressed: F. The Funk Shlezinger case and the claim regarding a legal framework 16. All sides agree that the marriage certificates presented to the registrar are valid under Canadian law; that a marriage ceremony was conducted in Canada; that the details in the certificate are correct. Upon the basis of these facts, we are requested to conclude that the registrar should register the couple as married. This is the clear language used by Judge Y. Zussman in the Shlezinger case: “When registering the personal status of a resident, it is not the job of the clerk of the registry to give his opinion on the validity of the marriage… It is sufficient for him to simply register the marriage, if he is presented with information that the resident conducted a marriage ceremony.” The state claims that this decision only holds for a marriage whose structure is recognized in Israel. This structure reflects the legislature’s opinion on the variety of possible personal status’s available to an individual. In our matter, the available structure include “Single, Married, Divorced, Widowed”(Part 2 (a)(7) to the census law). The word ‘married’ in this context refers to the accepted marriage structures under Israeli law. This structure refers to heterosexual marriages only. In this matter the state differentiates between a “social structure” a “social structure with some legal implications” and a “legal structure”. The social structure reflects personal and familial relations accepted by society. Occasionally it may bring about changes in personal status that do not correspond to legal changes worthy of registration. Then it may be a “social structure with some legal implications”. This structure is different from a legal structure in that it does not include a legal status, as opposed to a legal structure, which is based on legal status. The state claims that in the case at hand, the relationship between petitioners falls under the category of “social structure with some legal implications”, and not “legal structure”. Is the law with the state? 17. The position held by the state is not acceptable to me. It attempts to return decisions regarding personal status to the registry. With much effort, over the period of forty years, decisions regarding personal status were removed from the hands of the registry, and from judicial determinations related to the registry. The conversation about “legal structure” attempts to return the question of personal status to the discussion regarding registering in the census registry. To this we cannot agree. All claims brought over the years, supporting the Shlezinger decision, contradict the concept of a legal structure that
respondent has created. The registry was not created in order to determine questions of legal structure; the clerk of the registry is not qualified to determine whether a “legal structure” or only a “social structure with some legal implications” exists; the registry passes on statistical information about personal status (births, deaths, marriage, divorce), and not legal constructions that have passed the registry’s clerk’s examination. It is inappropriate to conduct the battle over personal status at the point of census registration. 18. This conversation about “recognized legal structure” is new to us. It does not appear in the state’s claims in the past. In my opinion it does not contribute to the issue before us. It raises questions as to the level of abstraction of the word structure. Is a marriage recognized in Canada a recognized legal structure? Is the adoption of the child of a same sex life partner a “recognized legal structure”? Adoption is obviously a recognized legal structure. Does the life style presented by a single sex couple invalidate this legal structure? What is the standard which should be applied to this question? In any case, in the Berner-Kadish case it was determined that this adoption should be registered. Was the clerk of the registry told on that day, before our decision in the matter of Yarus Chakak v. Legal Counsel to the Government (unpublished opinion) to write “unrecognized legal structure” or “social structure with some legal implications”? What is the difference between registering a single sex adoption and a single sex marriage? 19. The state recognizes that a shared life by a same sex couple constitutes a “social structure with some legal implications”, claims the state: “the state of Israel recognizes same sex couplehood, in a number of contexts. This recognition is given in socio-economic matters, and even in matters of arranging for residence in the state” (paragraph 19, respondent brief, 13.11.2005). The state is indeed correct in this assertion. In a long list of judicial decisions it was determined that same sex couples have certain rights in the state of Israel. A partial list of these decisions includes: (1) Rights related to group arrangements limited to couples (El Al v. Danilevits), (2) Granting pension rights (Uzi Even v. University of TA, unpublished decision), Rights to pensions according to military service laws (Steiner v. IDF) (4) the right to commemoration (Steiner v. Ministry of Defense), (5) recognition as a couple for purposes of “family violence” laws (anon v. anon (unpublished)), (6) recognition as a couple for the purposes of family law courts (unpublished opinions) (7) recognition as known in public in matters of inheritance (A.M. v. public trustee), (8) inheritance laws, according to the national security act (Giora Raz – national security admin.). Therefore the “social structure” of single sex couplehood has clearly brought about some “legal implications”. Why do these implications not reach the level of “legal structure”?The state claims that these implications do not reach the level of legal structure, since that is why they cannot be used to change personal status. It is found that at the core of the state’s distinction is the matter of status. It deprives homosexual marriages from “legal structure” since they lack status. Therefore, according to the state’s holding, the question of registration is derived from the question of legal structure, and the question of legal structure from status. According to the state’s approach, the registrar must examine the
question of status before he determines the existence of a legal structure. This approach contradicts the Funk Shlezinger holding, which stated that status is not a matter to be dealt with by the census registry; the registrar does not determine status; legal review of a registrar’s actions should not deal with questions of status. The clerk of registry cannot and does not need to determine whether a certain issue has stepped beyond the realm of “social structure with some legal implications” and into the realm of “legal structure”. The court when reviewing the legality of the registrar’s actions should not deal with these issues. 20. We asked ourselves if it cannot be said that at the core of the concept of “legal structures” lies the desire of the state to eliminate the registration of marriages conducted outside of Israel that contradict public law in Israel. From the state’s reply in writing and orally we conclude that that is not at all its purpose. In writing the state claimed: “The position with respect to not registering [same sex marriages] does not constitute a value or public position on whether same sex marriages should be recognized, but rather a professional legal opinion regarding current legal practices.” (paragraph 94, respondents brief, 11.13.2005). In response to our questions during oral argument, counsel for the state stated that she is not bringing a claim related to a “public position”. 21. The has state claimed that according to Funk Shlezinger, the clerk of the registrar should not register information that is clearly untrue, and whose falsehood is not given to significant controversy. According to the state, registering same sex couples is a registration that is clearly on its face false, since Israel lacks a law that recognizes this type of marriage. This claim is incorrect for two reasons: Firstly, it is incorrect from the view point of the Funk Shlezinger decision, which deals with a factual not legal falsehood (See Berner-Kadish, 375, 377). Justice D. Dorner mentioned in the same case (dealing with registering an adoption by a same sex partner) that “the registry before us reflects a legal, not a biological matter” (137). Justice D. Beinish also mentioned that “the claim of respondent in this case, that the falsehood of the matter is clear, since two mothers are a biological impossibility, is but another version of the claim that an adoption maid by a same sex partner should not be recognized [legally]) (377). Secondly, regarding the claim that there is a “clear and apparent falsehood”, the question is not whether same sex marriages are recognized in Israel. The question is whether Israeli law will recognize same sex marriages conducted in a foreign jurisdiction. The answer to this question is not a simple matter. It requires the finest of distinctions. Either way, the determination of this matter, according to our decision in Funk Shlezinger, will not be done through the process of census registration. 22. The claim that there is no social consensus over the question of same sex marriage passes through the state’s claims like a common thread; that courts should not determine this question; that recognizing the status of same sex couples is a value question, that it should be determined in the legislature. I agree with these claims, in so far as they address the question of whether a court should determine the legal status of same sex
marriages in the state of Israel. This position has already been expressed in a number of cases (Tefer v. state of Israel, 7; Efrat v. ministry of the interior, census bureau 749; Benmenasha v. minister of religious affairs, 876; the Yarus-Chakak case). In the Ben Menashe case, petitioner requested that we instruct the minister of religious affairs to appoint a clerk who will conduct civil marriages in special cases. The petition was rejected. I wrote: “The question of conducting civil marriages between couples who lack a religious affiliation – similar to the case of conducting a marriage ceremony for individuals with different religious affiliations – is a difficult and complex question. There is no national consensus on the matter. It is related to the recognition of a status that is in effect towards all others. Under these circumstances it seems that the appropriate body to deal with this issue is the Knesset [Israeli legislature] and not courts”. (878) Indeed, it is acceptable to me that questions of marriage in Israel, with marriage between two same sex partners falling under this category, should be determined first and foremost by the legislature. This is not the question before us. We are not dealing with marriage in Israel. This and more: we are not being asked to recognize a same sex marriage conducted in Israel. When this question arises, it will be examined under the accepted tools of international private law. All that is before us, and all that the Funk Shlezinger case wishes to solve, is the question of registration – registration and not recognition – of a same sex marriage conducted outside of Israel. The state’s approach, that we must reject registration of these marriages, because they do not constitute a “recognized legal structure” in the state of Israel, is an attempt to answer a question of status; it is a position that is asking the court to state an opinion on a controversial social question. The importance of the Funk Shlezinger decision is, amongst others, that it does not force the court to take a position on questions of status. Yet the state’s own approach regarding legal structures suggests that these questions should be left in the hands of the legislature. 23. Before we conclude, we reemphasize what we are deciding on today, and what we are not deciding on today. We are deciding that within the context of a statistical gatherer of information, the clerk of the registery must register what is written on any public certificate he receives from the petitioners, stating the petitioners are married. We are not deciding that same sex marriages are recognized in Israel; we are not recognizing a new status for these marriages; we are not expressing an opinion on the validity of a foreign same sex marriage certificate from a foreign jurisdiction (whether the marriage is between Israeli citizens, or an Israeli and foreign citizen). The answer to these questions, which we do not arrive at today, is difficult and complex (see Yonai, “Regarding samee sex proclivities – between history and sociology”, law and government D, 531 (1998); Harel, “Judicial institutions and homosexuality – respect or patience?” Law and government D 785; Tamir (Itzchaki) “The right to equality between Same Sex couples” The Advocate, 94 (2005); Harel “The rise and fall of the homosexual judicial revolution” The Trial, 195 (2002); Biton “The impact of the basic law respect for individuals and their freedom on same sex couples” 401 (2002). See also R. E. Heinz “Sexual
Orientation, a Human Right” (1995); R. Wintemute “Sexual Orientation and Human Rights” (1995); E. Wintemute and M. Andenas “Legal Recognition of Same Sex Partnerships” (2001); D. Pinello, “Gay Rights and American Law” (2003); Grestman, “Same Sex marriage and the Constitution”, (2004) “Partnership”, (2001)). It is our hope that the Knesset will express its opinion on at least some of these issues. As a result we turn our preliminary injunction into a permanent ruling. Respondent must register petitioners as married in section 7(a)(2) of the census registry.
(Former) President Presdient D. Beinish: I agree with former president Barak’s decision and explanations. A legal tradition of many years has created and substantiated a legal framework that distinguishes between the census registry, its duties and limitations, and the difficult issues of determining personal status. The fact that from petitioners view point there is clearly importance to the registry and to its content, does not detract from the substantive decision of this court that there is a distinction between the contents of the registry and the question of personal status. This approach has created a framework that leaves the most difficult questions undecided from a legal viewpoint, and the difficult question of social recognition in the hands of the legislature. On all these my colleague the (former) president spoke in his decision, which I join. President Vice President A. Rivlin I agree Vice President Judge A. Procatsia I agree with the decision of my colleague, (Former) president A. Barak. Judge Judge M. Naor I agree Judge
Judge A. Chaiot I agree Judge Judge A. Rubinstein a. I fear that my opinion differs from the opinion of the majority of my colleagues. Forty three years ago, a decision was reached in this court on the matter of Funk Shlezinger, determining that the clerk of the census registry must register a couple as married, if the couple approaches him with evidence that a foreign marriage ceremony was conducted, without investigating the validity of the marriage. The decision dealt with a Jew and Christian married in Cyprus. Over time the decision became institutionalized, and was used to justify similar decisions such as Shas (Shas v. census bureau, 723); Psaro (Goldstein) in (PSaro (Goldstein) v. minister of the interior, 681); and naamat (naamat v. minister of the interior, 721), in the matters of registering nationality, religion and conversion, and in the Berner-Kadish case (Berner-Kadish v. minister of the interior) in the matter of same sex adoption (in this final matter an additional determination is scheduled, Minister of the interior v. Kadish). Now my colleague the president, and with her other members of the court, wish to apply this approach to same sex marriage. I disagree. In my view the matter at hand has nothing to do with registration, a matter that has long lost its relevance, but rather is a statement about social values, which is the true purpose of petitioners. So much so that as of this moment there are no economic or “practical” considerations on the basis of which the petition was brought. I am therefore skeptical of the distinction between registration and recognition that my colleagues make. My opinion in summary in the matter of this petition, is that the issue of same sex marriage, which is a relatively new issue in public dialogue, as well as in historical dialogue, and is not recognized in most of the states in the world, and which raises difficulties for many sectors of the population for various reasons – falls under the purview of the legislature, and not the creative interpretation abilities of the court. b. My colleague the (former) president “sanctifies” the Funk Shlezinger decision, claiming that its utility is increasing with time, since it permits – in his language – “social calm” in sensitive areas. c. The question in my view is the limits of the Funk Shlezinger decision. I am of the opinion that its limits have already been overstretched, and there is no reason to expand them further. Its purpose of responding to the issue of civil marriages, which had not been defined in Israel and existed in most other places in the world, has long passed, and yet the same line of reasoning has been imposed on other issues in different contexts. In the specific case at hand, this reasoning has been applied to a matter that is undecided in the rest of the world, as well as in Israel. The average person in Israel does not distinguish between registration and recognition; if we were to walk the streets of the city and ask its residence whether they distinguish between the two, all agree that they would
not. Under these circumstances the courts should defer to the legislature. That is my approach in summary. I will now expand on it in detail. On the Funk Shlezinger Decision d. Mr. Shlezinger, a Jew, And Mrs. Funk, a non-Jew, were married in a civil ceremony in Cyprus. When the came to Israel, they requested to be registered as married in the census registry. The clerk of the registry refused their request, and they appealed his refusal. Judge Zussman said for the majority: “The matter is clear and beyond doubt, that the duties of the clerk of the registry, according to the above decision, (the old census law, replaced by the new census law 1965) is but the job of a collector of statistical information for the purpose of managing a population registry, with no judicial authority whatsoever.” (244). These words of Judge Zussman relied on, amongst others, the words of the Knesset consul (3.10.58) “administrative agencies are not capable of, supposed to, or permitted to engage in decisions based on religious views [in the context of their jobs]” (246, emphasis in the original). Furthermore, judge Zussman indicated that registration in the census registry could not serve as evidence for any matter of substance. The purpose of the … [census] law is the collection of statistical information. This information could be correct or incorrect, and no one vouches for its correctness…” (249). Examples were brought here indicating that registration is not considered evidence for matters of substance. e. The court – in a majority opinion – did not want to enter the mine field of religious law. Therefore it turned to the Skornik decision (Leib Skornick v. Miriam Skornick, 141), saying: “The state is not claiming before us that the marriage is invalid because it was conducted in a civil ceremony; there is no place for such a claim, since this court has already decided, that on the matter of the method of marriage, local practices are followed (the Leib Skornick case) and without evidence to the contrary, they are assumed to have been conducted correctly.” (252-253). Judge Zussman then added: “The marriage will be annulled… if an Israeli judge, expressing the sentiment of the people of the state of Israel, will have to say, that the validity of this marriage is unacceptable to our lifestyle… the marriage is annulled under religious rulings, will have a heavy, though not necessary decisive weight in determining the outcome. The people of the state of Israel are divided into two camps as of today. One camp observes religious strictures, as opposed to another camp that emphasizes the difference between a state of secular and religious laws. The viewpoints expressed by these two camps contradict each other on a fundamental level. The public order in Israel does not mean that a judge will enforce the views of one camp on another. Life requires a tolerant approach towards others, and giving consideration to different opinions, and therefore the judge’s opinion should be a balance of public opinion.” (256).
Therefore the majority concluded, that for the purpose of registering a marriage only a ceremony is necessary, and that questioning the validity of a marriage certificate is not the roll of the clerk of the registry, and evidence that an appropriate marriage ceremony was conducted is sufficient for the purposes of registration. It is worth noting that Judges Vitkin and Baranzon left the matter of the validity of civil marriages open, while judge Zussman asserted with conviction that these would not be valid. That being said, we can see that the court based its decision on the uncertainty regarding the validity of the marriage (an uncertainty that is absent from our case), and emphasized the need for a measure that “balanced all opinions held by the public”. I won’t stop myself from saying that I doubt judge Zussman’s claims that the population of Israel was divided into two dichotomous camps consisting of supporters of civil and religious rules of law. On this matter I will only note that there are many citizens of Israel who care about both religious and secular [civil] laws. f. (former) judge Zilberg, in his dissent, opined that the marriage in that case [the Shlezinger case], between a Jew and a Christian would not be valid in the state of Israel; therefore, if the clerk of the registry “is convinced that the man is not married, he should not write something that is, in his opinion, clearly untrue. Since the census questionnaire asks as to the legal personal status of the individual, and not whether he went through some ceremony or another. ” (239, emphasis in original, See also Zilberg’s article from 1941 “a modern issue in marriage law” where he noted that according to Israeli mandate law, “a marriage between a Jew and a non-Jew are not valid in Israel” (230)). Judge Zilberg, who was not ignorant to practical and personal needs, recommended a solution to the Funk Shlezinger case as well, that he believed “would remove the sting from the decision for both parties”, and that would be the addition of the words “in a civil ceremony” or “in a religious ceremony” after the words “married” in the documents of the registry. This would have required legislation which did not occur. g. Ask whom you will, though for practical purposes the time of asking is passed – whether from the beginning there was need for the Funk Shlezinger decision, or whether judge Zilberg was right, meaning that it is the legislature’s job to find a bridge to overcome the problem of Israelis who were married abroad. However, it is possible to claim from the majority opinion of Zussman that for forty three years both types of marriages have coexisted, and that the decision may have prevented difficult and unhealthy public arguments. This argument is not unimportant, both in the Funk Shlezinger case and in similar cases, even for those who wish to overturn Funk Shlezinger. And more so, the legislature is not quick in producing solution to other marriage related problems, for instance the problem of those who are permitted to return to Israel, but who are not Jews; and this problem has increased recently, especially with the bringing of many individuals from the former Soviet Union, whom are not recognized as Jewish by religious laws (children and grandchildren of [male] Jews, and their spouses), questions regarding their marriage prospects have been raised. This question is not at all trivial, resulting in discussion about laws such as a civil union law (See S. Lipshitz, “registering couplehood”, Menashe hasheava (edited by A. Barak and D. Friedman, 2006). 361). The legislature has yet to give his opinion on these and similar
issues, and in the general question of how to solve the problem of marriage without harming religious marriage laws. And indeed, are there no limits to the Funk Shlezinger decision? We are dealing with the case of same sex marriage – a legal structure which there is no doubt did not exist in the past, and which has been created as part of changes in parts of society. Is it not the duty of the legislature to address this issue? In my opinion the answer is that it is indeed his duty; and if the legislature should decide in one way, or even if he were not to determine any opinion, the implication of that is that that is what he [the legislature] wanted. h. At the conclusion of our discussion of the Funk Shlezinger case, I think it is worth bringing the words of judge Tirkel in the case of Yaruis Chakak “there are cases when a decision leaves its original moorings, in order to travel the world, into areas where no one had expected that the decision would travel to. In my opinion an example of such a decision can be seen in the Funk Shlezinger case. See also Judge Shava’s call in the Berner-Kadish case “the Supreme Court should reexamine its decision in Funk Shlezinger, especially after its application in the Goldstein case, beyond all proportions… in the supreme court” (M. Shava, “registering and recognizing of adoption in same sex households”, 103). On the registry i. One way or another, the Funk Shlezinger decision has embedded in the “legal mind” the concept that the registry is only a statistical tool. I will repeat and say that is not the case; the registry is the “gate of entry” to legal recognition in Israel. Before an Israeli couple who present a registration form, the average Israeli does not know to distinguish between “just registration” and legal status. But not only the average Israeli is subject to this problem, but not long after the decision in the Shlezinger Case, (former) Judge Landuy pointed it out: “The statement… that the purpose of the [census] law is only the collection of statistical information’ is clearly correct in and of itself, therefore the total value of the registry should not be discounted to just adding another number to a list. (Gurfinkel v. Minister of the Interior, 2048; Psaro (Goldstein) 712). Several years later, Judge Landuy returned to this approach “and indeed, how is it possible to ignore the significance of registration, from a social and political perspective, that is as significant as the narrow technical implications… and it is possible to question, if all of this is only a technical matter, why is the plaintiff so insistent… have “all of the people erred” [biblical quote] in the matter of the importance of the registry” (Benjamin Shalit v. Minister of the interior, 477, 526). President Agernet joined in this approach: “I emphasize, that I am in agreement with my colleague, judge Landuy, when he stated that this registration is of more than just technical value, but of social and political significance as well, as evidenced by the discussion in the Knesset, …. And by the interest that the case before us has produced in the population at large. (598)
Furthermore Judge Agernet warned about the possibility of how what is now viewed as a technical matter may be viewed in the future: “there is room to believe that this characterization of the registry may over time… have an impact on other walks of life as well”, true words. In the path first cleaved by these two legal giants vice president Alon then stepped: “Indeed, the registration of the nationality “Jewish” in the registry does not have any practical validity regarding personal status… and since this is what is claimed before us, what is the difference? But when the legislature determined that nationality should be registered… we must not disparage its national and public importance, and address it with the proper amount of respect. And the petitions that come before us – and the intense deliberation that they involve – will demonstrate ho important an issue we are dealing with.” (The Shas case, 736). An in his footsteps followed judge Tal as well, dissenting from the Zussman opinion in the Psaro (Goldstein) case, who included a long list of practical implications to registration in the census registry, but addressed public implications as well: “The approach of purely statistical registration ignores reality … the nations authorities and citizens are not the only ones who rely on census information, but even the legislature himself gave the census registry a position above simple statistical information collector… And the question: why register them as “married” in the registry … when, as we have seen, the marriage has no local legal validity… There is also public significance to being registered as a Jew in the registry, beyond “Statistical” significance, since the public does not recognize the difference between registration for registration’s sake, and registration for the purposes of return.” (Psaro (Goldstein) case, 705-708). For this reason, Judge Tal determined that “I cannot agree with the conclusion that registration is for the purpose of registration alone”. In this path continued judge Engelrad, who declared that all significant elements hidden within registration are a symbol, and on the debate is over that symbol: And if indeed we are only talking about an insignificant statistic, why do the arguments about registration continue? Why the legal decisions spread across many pages, with dissenting judges? The truth is, of course, that the symbol is also the substance, and without a certain world view, there is no decision in the matter of registration, and there is no statistic” (naamat, 756, emphasis added). We find therefore that the registry is not just a simple statistic, and that it has practical and social implications for the public, different authorities and the legislature. It seems that in recent years the registry is mostly a legal battle field, where individual battle over symbols. That is what the above mentioned petitions dealt with, and that is what our petition is dealing with. Is the decision – in fact – in the matter of symbols
rightly a judicial decision? And should this decision be made out of hand, through the registry and the continued expansion of the Funk Shlezinger decision? j. And if someone were to ask, what is the difference between same sex marriage and civil marriages, that are not recognized in Israel either, but are recognized under Funk Shlezinger, without anyone saying a word. The answer is not difficult: civil law is an institution recognized in many countries, and there is no way to avoid registering them, even if we acknowledge that the census registry is more than just a collection of statistical information. This is not the same for same sex couples: here the clerk of the registry will be able to plainly see that what is before him is a new legal paradigm, one which “our forefathers did not anticipate”, and which was not recognized outside of a small group of nations in the world, approximately six out of over one hundred and ninety, approximately three percent. If that is the case should the Israeli court, due to some special characteristic, be an advance guard before the legislature? Is this not, for the average clerk, a case where he can say that “there is an apparent falsehood, beyond a reasonable doubt” (Judge Zussman in the Funk Shlezinger case, 243), and that therefore the matter should be dealt with by the legislature? Furthermore, is the registration of such a couple “a balancing of public views” which judge Zussman mentioned? On the petitioners and the courts k. I wish to distinguish between humane treatment of the petitioners, to which they are surely deserving, and humane treatment under the basic law; respect for man and his liberty, and whose private life is their own business. As both petitioners and the state have noted, during the past decade the legislature and courts have determined financial, social and humanitarian rights to same sex couples, and my colleague the (former) president has noted major developments in this area. In this context, civil and judicial authorities are called to treat same sex couples equally on the economic dimension. l. This petition does not deal with the law’s treatment of same sex couples v. married couples off different sexes. In my view the petition does not deal with preserving the rights of petitioners as individuals or citizens, who have a right to equal treatment. As was mentioned previously, in this realm the court has ruled consistently, time after time, in favor of upholding these rights. Indeed, in the beginning of the eighties, (former) president Barak stated “it is simple that if two men or two women come before the court, and ask to confirm an agreement over finances between them, the court will not confirm this agreement, since petitioners are not a couple.” (Chanan Cohen and bro. v. general council to the gov’t., 689). We have passed a long road since then, and all things related to recognizing social and economic rights have been expanded, in the context of the values of equality and respect. m. It seems like this path had begun with this court’s ruling in the Danilovitch case, (El Al v. Danilovich, 749), and continuing in other cases mentioned by the (former) president in his opinion; but its central tenets are in the implementations of the decisions coming down from this court on a daily basis. As the president mentioned, in 2004 the family courts reversed his decision in the Chanan Cohen case, and recognized two men as a
couple for the purposes of family law (in the matter of confirming financial arrangements see R.A. v. L.M. unpublished), judge Rothshield; Tel aviv court, (K. T. v. state of Israel, general council to the gov’t (unpublished), judge granit; temporary restraining orders for violence in the family see (Haifa court) anon. v. anon (unpublished) judge globinsky. Honesty requires that I state that a contradicting opinion also exists, (tel aviv court) anon. v. general council to the gov’t (unpublished), judge Geifman; however it is clear that things that were once obvious are now at least controversial). Other authorities have also recognized this right to equality, and there appears to be more responsiveness to complaints made by same sex couples on all levels (for a detailed survey see paragraph 41 of petition). n. To my question the respondent’s attorney noted that there are additional rights which are denied petitioners, and turned to the third paragraph of the new evidence law (1971), which states that in a criminal case an individual cannot be compelled to testify against his or her spouse, or someone who is accused along with his spouse in the same indictment”. Without digressing too much, I will note that judicial debate has expanded this qualification to non-married individuals known to be part of a couple in public. (See e.g. (Beer Sheva Court) Israel v. Muyal, (unpublished); Israel v. Bchrawi varda (unpublished), vice president Pizem, and judges Rezi and Shif), and from there it seems that the path is short. It seems that every case is examined individually, to ensure that no substantive right is being harmed, yet the case of registration deals with a symbol, and not with a substantive right. It seems to me therefore that we can separate between cases which have a direct impact on individual citizens, and for which they have a right to equal treatment and respect, and to cases which have a public / symbolic component, that is mostly outside of the immediate practical realm. It should also be noted that granting a right is related to recognizing standing, in essence – which is not what this petition requested, and which the registry does not provide any evidence of (part 3 of the Census Law). o. Indeed, my colleagues remain true to their understanding of the Funk Shlezinger decision; but even for those who support this approach, are we now faced with a “Funk Shlezingeresque” case, and can the registration of civil marriage, an accepted practice in many countries, be compared to the registration of same sex marriage – a practice recognized in a small number of countries? In my humble opinion the answer is no. In my view the state was correct in its assertion, that it is not up to the court to decide this issue, but rather the legislature should convene, discuss, and come to a decision. On the Trust of the Public p. In my view this court should also address the question of how much it is distancing itself from a social consensus, which my colleagues and the petitioners concede is lacking from this case, and that it is difficult to speak to a “balancing of public opinion”. The faith of the public is often mentioned as a necessary condition for the functioning of a judicial system. This means that in matters involving deep social controversy, the court will carefully consider whether it wishes to enter the discussion – and on occasion the answer will be positive, and on other occasions negative. In my view the difference is as
to how much basic human rights are REALLY being affected, in the matter of the registry, with a balancing of factors taken into account. As I mentioned previously, there is no harm in the case at hand beyond a symbolic one; socio-economic considerations have been settled to a reasonably extent, and what remains is probably negligible, and will probably be taken care of in the near future. q. The trust of the public, according to Barak’s many important books, is expressed “not by giving in to the publics every whim, but rather by expressing the public’s underlying ideals” (A judge in a democratic state, 50 see also Yarus-Chakak case, 117), since “when a judge must balance different things according to their separate weights, he will strive to do so according to what he views are the fundamental ideals of society.” (Judicial deliberation, 188). In another place this question was presented in a clear manner by professor Barak, with an answer beside it: “Is the judge required to apply his (authority / deliberation) in a way so that the norm resulting from this process (whether it is in the form of statutory interpretation, or in another form), will also enjoy public consent?... In my opinion, the judge must take into account the degree of social consensus to the social values and legal norms derived from them. The judge should strive to reach a solution within the social consensus, or at least one that does not go against it. In my view it is best to avoid taking a position that is in stark contrast to the public’s basic ideals… the rationale for this assertion lies in basic democratic considerations, in the idea of separation of powers, and the need to ensure the public’s trust… an action going against public consensus will in the long run harm the public’s trust in judicial institutions, and in their ability ot function” (Judicial deliberation, 289-290, emphasis added, see also Yossef Ben menashe v. minister of religious affairs). Although the meaning of public trust is not “populism and leaning towards the public’s whims. The public trust does not mean deciding according to polls. Indeed the meaning of the word’s public trust is that a judge decides according to just and legal principles.” (Deri v. the state of Israel). The court is not captive to polls, and does not derive its existence from them, but it is worth examining the matter not only from the perspective of individual justice to the petitioners, but also from the perspective of “public justice”, which I view as searching for a common denominator within Israeli society, and avoiding divisiveness. There is no doubt that social circumstances can change, something which has occurred in a significant way in the matter of homosexual relationships (see “Judge in a democratic society”, 60; El Al v. Danilevitch, 749, 781-782). The court has done its part in preventing discrimination in the socio-economic realm, which have been decided nearly completely to the preferences of the plaintiffs, but is there not a point beyond which the need to act in the context of the public’s trust, and within the framework of a broad common denominator will bring the court to say – my job stops here, and from here onwards the legislature should speak on these enormously controversial matters? The Role of the Court
r. Indeed, the recognition of socio-economic rights can be viewed as a basic value of human decency, with no real opposing value. Registration in the census, on the other hand, can be viewed as a public declaration towards the whole world regarding a controversial matter of status, which should be determined by the legislature. Furthermore, one can say, since socio-economic issues have already been recognized, what difference does it make if they are accompanied by registration. Yet if we admit the truth, that registration does not come only for statistical purposes, as was claimed in the Funk Shlezinger case, since even if the registration itself carries no legal weight, it is an important symbol. A people live within its symbols, and if this were not the case, the law and custom would not attribute such importance to the matter, and furthermore, petitioners would not be fighting so hard in this case. Judge Zoabi has already mentioned in the Berner-Kadish case (384), that “in fact the petitioners are not looking for a simple registration, but rather a de-facto recognition of the adoption”. I believe that (former) judge Cheshin expressed these sentiments well, in a minority opinion in a different context: “The true issue before us is not in the matter of naming a street in Arabic by local authorities. The matter is at the center of its meaning – the cultural and national rights of Israeli Arabs. These rights, to the best of my understanding, go beyond the rights of individuals recognized in Israel… and the nature of these matters is such that the court room is not the appropriate venue to determine them. Given that the political body – and at its head, the Knesset, has not recognized the type of rights petitioners are seeking.” (Adala v. Tel Aviv Yafo municipality, 393). s. My colleague the president disputes nearly every portion of respondent’s position. With due respect, I disagree. Similar to the legal council to the government’s position, I believe that the matter should be determined by the legislature. The words of (former) judge Cheshin in the YArus-Chakak case are appropriate here “The court is not designed to be a forerunner for the legislature, nor is he required to be a guide. The judiciary in its essence, has not been qualified to breach new social grounds.” (135) and the words of my colleague the president in his book “A Judge in a Democratic State” “As a rule a judge should not be the flag barer of new social paradigms. He should recognize such paradigms that exist, not create new ones” (Judge in a Democratic State 47; YarusChakak case, 117). I myself believe that as long as individual rights are on the table, the court will often find itself breaking new ground, similarly in matters of establishing norms in the public sector; but not in matters pertaining to groups, and related to social beliefs and opinions. In these matters I agree with judge Matza’s views in the YarusChakak case “if it were desirable that this court should make the primary determination in socially sensitive matters, whose issue at hand is granting status to same sex couples. To this question, in my opinion, we must answer no. The principal of separation of powers, and the sensitive nature of the case before us requires that we act in restraint” (79, emphasis in the original). t. In the context of the executor, judge Barak stated that “there are specific instances, in matters that divide the nation, on which the executor does nto have the right to decide. There are such instances where these determinations must be made in the
Knesset, with the executor simply executing them.” (Rubinestein v. Minister of Defense, 523) the President will say I am but dealing with a registry, a preliminary determination will be made by the legislature. But in my view, in the case at hand registration is a significant portion of the decision, and should therefore be left in the hands of the legislature. Something on Comparative Law u. This court is not the first faced with the question of recognizing a foreign marriage of a same sex couple. Similar questions were faced by a number of U.S. courts in different states, in the context of a continuing public battle. Although the matters were related to the actual recognition of marriage, I believe that our case exceeds mere statistical registration [towards actual recognition]. There also the line between the judiciary and legislature is questioned. Indeed, in most states in the U.S. there are constitutional arrangements that preclude recognizing same sex marriages conducted in foreign countries; Defense of Marriage Act (DOMA); for a review of these laws, see the appendix to A. Koppelman, “Recognition and Enforcement of Same Sex Marriage” 153 U. Pa. Law Rev. 2143, 2165 (2005), the constitutionality of DOMA laws have stood constitutional tests on a number of occasions, though a Supreme Court ruling is still lacking, however, there are states without a constitutional arrangement, such as New Jersey, where a similar case, dealing with a Canadian marriage, was brought. v. In the Hennefeld case, the New Jersey Court refused to recognize a marriage conducted in Canada, and it was determined that “this court finds that marriage laws of Canada which recognize same sex marriage are not consistent with those of New Jersey which do not recognize same sex marriage… Accordingly, the plaintiff’s same sex marriage cannot be afforded comity in New Jersey” Hennefeld v. Township of Montclair, 22 NJ Tax 166 (2005). Canadian marriages were not recognized in states with DOMA laws, see In re Kandu, 315 B.R. 123 this decision was based on a previous decision holding that the states constitutions does not require recognition of same sex marriage (Lewis v. Harris, 378 N.J. Super. 168). In that case the court addressed the question of the place in society of the right of same sex couples to marriage: “This constitutional provision does not give a court the license to create a new constitutional right to same-sex marriage simply because its members feel that the state should grant same-sex couples the same form of recognition as opposite-sex couples who chose to marry… there is no basis for concluding that our society now accepts the view that there is no essential difference between a traditional marriage between a man and a woman and a marriage between members of the same sex” (emphasis added). No one disputes, even in New Jersey, that same sex couples must be afforded the same substantive rights that opposite-sex couples receive (for this purpose the state has legislated a Domestic Partnership act), however the manner, or the “structure” which society chooses to deal with the problem – for instance in the form of a marriage, a civil
agreement, or in another manner – is viewed as an issue that should be determined by the legislature, and not the courts. w. After these words were written, the New Jersey court has recently held (25.10.06) that same-sex couples have, under the constitution, the same rights afforded to oppositesex couples, but the “name” or structure with these rights take is left to the legislature to determine (Lewis v, Harris, N.J. Lexis 1521, 2006). The Court has determined that it is not possible to remove from the word “marriage” various social connotations, and that therefore the legislature must determine if it should be used in the context of same-sex couples: “Raised here is the perplexing question - what’s in a name? – and is a name itself of constitutional magnitude, after the state is required to provide full statutory rights to same sex couples? We are mindful that in the cultural clash over same sex marriage, the word marriage itself – independent of the rights and benefits of marriage – has an evocative and important meaning to both parties. Under our equal protection jurisprudence, however, plaintiffs’ claimed right to the name marriage is surely not the same now that equal rights and benefits must be conferred on committed same sex couples… The Legislature is free to break from historical traditions that have limited the definition of marriage to heterosexual couples, or to frame a civil union style structure, as Vermont and Connecticut have done”. In matters related to the question of the structure-symbol, the court has held that public discourse, in the form of legislative decision making, should have its say. The Court noted that traditionally, throughout generations, the word marriage referred only to a relationship between a man and a woman, therefore: “To alter the meaning would render a profound change in the public consciousness of a social institution of ancient origin. When such changed is not compelled by a constitutional imperative, it must come about through civil dialogue and reasoned discourse, and the considered judgment of the people in whom we place ultimate trust in our republican form of government”. When explaining this matter, which requires granting the decision making power in the structure-symbol matter to the legislature, the court addresses the same consideration I addressed above, and that is the need to act within the framework of the public’s trust: “Some may think that this Court should not settle the matter, insulating itself from the public discussion and the political process. Nevertheless, a court must discern not only the limits of its own authority, but also when to exercise forbearance ,recognizing that the legitimacy of its decisions rests on reason, not power”. All seven members of the court there supported the concept that same-sex couples should not be deprived of substantive rights afforded to opposite-sex couples. A minority of
three judges did not distinguish between these rights and the right to the Title of Marriage. Even this opinion required a symbol – use of the term “marriage” and determined that there is no cause to deprive petitioners of its use, for fear that the commitment between a same-sex couple will be viewed as weaker than a commitment between opposite-sex couples, and held further that such labels would perpetuate preconceptions. However, as we can see, the majority determined to remove the debate to the legislature. x. The Supreme Court of N.Y., another state lacking in DOMA laws, determined that the question of registering same sex couples should be left to the legislature. Basing its decision on the Hennefeld decision in N.J. (amongst other concerns), the N.Y. court held: “The role of the courts is to “recognize the rights supported by the Constitution and history, but the power to create novel rights is reserved to the people through the democratic and legislative processes”…Deprivation of legislative authority, by judicial fiat, to make important, controversial policy decisions prolongs divisiveness and defers settlement of the issue; it is a miscarriage of the political process involved in considering such a policy change… Judicial intervention is warranted only where the legislature has placed an unreasonable restriction on access to the legislatively defined right.” (See also Samuels v. New York State Dept. of Health, 811 N.Y.S. 2d 136, Seymour v. Holcomb, 790 N.Y.S. 2d 858 (2005)) Conclusion y. In summary: my colleague the president, similarly to petitioners, does not agree with respondent that Israel does not have an appropriate legal structure to accommodate same sex marriage, to his approach the idea of a legal structure is a new concept, that has no appropriate measure, and that there is no difference between registering same-sex marriage and same-sex adoption, as was decided in the Berner-Kadish case. Indeed, my decision in that matter is similar to the decision of judge Zoabi. I do not believe that granting same-sex couples the socio-economic rights, in the context of social and legal fairness, constitutes a recognition of a legal structure similar to the registration of a marriage. There is a dividing line between the two, requiring legislative attention; the dividing line is that symbol, that value judgment, which requires that the legislature determine the issue at the end of the day, and registration is, after all, an official recognition by the authorities to establish a family cell, recognized in only a small minority of countries in the world. Therefore had my opinion been heard, we would not have responded positively to the petitions. Judge.
It is determined by a majority of opinions, and under the dissent of judge A. Rubinstein, to accept the petitions and create a permanent ruling, as stated in the decision of Judge A. Barak. Respondent must register petitioners as married in section 2(a)(7) of the registry. Held today, (11.21.2006)
Signed by the majority
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