A Basic Right to Marry: Israeli Style

Abstract

This article questions the value of the basic right to marry that was recognised by the Israeli Supreme Court in the early 2000s as part of the basic right to human dignity. Since its early days, Israeli law has developed a tradition that has diminished the significance of formal marriage as a way to bypass the religious-based restrictions on marriage in Israel, with the emphasis instead on the idea of functional joint intimate lives.Against this legal background, the article explores the basic right to marry. It discusses and analyses the Supreme Court cases that have recognised a basic right to marry. It then considers several options to help in understanding the meaning of this right, and supports an understanding of the right to marry within a framework of equality, according to which human dignity requires equality in affording official recognition to intimate partnerships. Nonetheless, given the potentially limited effect of a basic right to marry in Israel, the article considers the idea of abolishing legal marriage in Israel altogether. Responding to potential critique by reference to the unique Israeli context, it suggests that such abolition could resolve the continuous conflict between Israel's self-definition as a Jewish state and its self-definition as a democratic state in the context of recognising adult intimate relationships. As presented in this article, constitutional limitations do not stand in the way for the State of Israel to abolish legal marriage.