The Development of the Issue of Same-Sex Couples Under Israeli Law

Abstract

The State of Israel determined by legislation that matters of personal status including marriage and divorce are subject to personal law, namely religious law. Since the applicable law is personal and not territorial, it varies from person to person and is not uniform as under civil law. This simply means that Israel has no separation of religion and state in matters of divorce and marriage. Religion is the only determining factor in these matters. Thus, marriages prohibited by religious law do not take place in Israel. This is true for all four major religions in Israel: Christianity, Islam, the Druze religion, and Judaism. The discussion of same-sex couples under Israeli law should have ended here: marriage and even sexual relations between same-sex partners are prohibited by the four religions in Israel. Therefore, they have no place in a state in which religious law prevails in matters of status.However, the Israeli courts have more of a civil orientation than a religious one and look for ways to bridge the gap between religious law and reality as they understand it. In some cases, they have recognized the status of same-sex couples. The change started by providing material economic rights such as the right to a benefit given to an employee’s spouse by an employer, mutual inheritance rights, and more. The courts did not stop there, but continued granting rights both on the public level and in matters of legal status. For example, same-sex couples can now be registered as a married couple in the Registry Office if they were married overseas, and they can adopt children just as heterosexual couples can. Some argue that today there is no longer any meaning to the law which states that marriage shall be determined only by the personal religious law of each individual. The decisions made in these matters are sharply disputed and reflect the constant prevailing tensions regarding Israel not only as a Jewish state but also as a democratic state. Although the Basic Laws stipulate that Israel is both, in practice these values conflict and often collide. This tension is clearly reflected in and may be analyzed through the issue of same-sex couples.