Gay Marriage, Israeli Style

There has been tremendous progress for same-sex couples in Israel in the past ten years. There is broad recognition for couples by most of the secular government agencies, including the granting of most tax benefits, recognition for immigration purposes, employment benefits, some intestacy protections, and even Social Security benefits. Second-parent adoptions by the partners of lesbian and gay parents are routinely approved, and outside of the religious communities gay and lesbian couples live quite openly. Israel now even has an openly gay Judge! Indeed, in many respects the situation for gay couples seems to be as good or better in Israel than it is in most states of the United States.

At the same time, there is no civil marriage in Israel – only religious marriage. This concept sounds archaic to most of us, but there’s a long history behind this doctrine. Indeed, it predates the founding of the State of Israel. Under Ottoman law each religious group maintained control over matters of “personal status,” which includes marriage and divorce, and the system was preserved as part of the religious/secular arrangements of Israeli law. Interfaith marriage is not allowed, and so many couples (even including some Jewish couples where one spouse is not recognized as Jewish by the rabbinate) must travel to Cyprus to marry.

Because of these limitations the secular government has for a long time recognized and granted most marital rights to “de facto spouses,” similar to common law marriage in our country. There also is a statutory mechanism for recognizing foreign marriages, and even a division of the civil court to enable those with foreign marriages to get divorced. Ironically, the comprehensiveness of the non-marital recognition system has thus paved the way for granting benefits to same-sex couples, as they also cannot marry under religious law.

The system is not without its problems, however. While same-sex couples who have married overseas can “register” as married, each government agency has its own rules and there is no uniformity to the recognition. And, at this point it is not clear if any court – religious or civil – will grant a divorce to a married same-sex couple that has broken up. Local courts have treated some gay couples as if they are married, and others have not, without any uniform rules. Adopting children is not simple, and surrogacy is not allowed in Israel, forcing gay male couples to turn to India or the United States to have a child by surrogacy – with resulting expense and complications for the legalization of the child’s entry into Israel. And, while most secular gay Israelis seem quite comfortable staying out of a religious marriage, the social discrimination is nonetheless very real.

I will be teaching a course in Israel next year on the U.S. law for same-sex couples, and I’ll be learning more about the Israeli situation while I’m there. The intersection of civil rights, marriage rights, and recognition of alternative families is a lively topic in Israeli society – and it offers many intriguing contrasts and comparisons to our own legal struggles and achievements.