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Israel: High Court Rejects Petition to Recognize Same-Sex Marriages

(Sept. 11, 2017) On August 31, 2017, Israel’s Supreme Court, sitting as a High Court of Justice, unanimously rejected a petition by Israel’s LGBT (lesbian, gay, bisexual and transgender) Task Force and individual petitioners. Petitioners had requested that the Court  recognize same-sex marriages and declare that sections 1-2 of the Rabbinical Court Jurisdiction Law, 5713-1953, which submit Jewish Israelis to the jurisdiction of rabbinical courts that adjudicate under Jewish law, do not apply to LGBT Israelis.  In the alternative, petitioners requested to declare that these provisions were void for allegedly conflicting with their rights to have a family and to enjoy equal treatment under the law, based on Basic Law: Human Dignity and Liberty.  (HCJ 7339/15 Israel Organization for Protection of Individual Rights v. Ministry of Interior (decision rendered Aug. 31, 2017), STATE OF ISRAEL: THE JUDICIAL AUTHORITY; Rabbinical Court Jurisdiction Law, 5713-1953 (as amended), SEFER HAHUKIM [OFFICIAL GAZETTE, SH] 5713 No. 134 p. 165; Basic Law: Human Dignity and Liberty 5752-1992 (as amended), SH 5752 No. 1391 p. 150 (all in Hebrew).)

According to Justice Elyakim Rubinstein, with Justices Neal Hendel and Anat Baron concurring:

Essentially, the petitioners are asking from the court to recognize same-sex marriage via legislation, despite the fact that they are not recognized by Israeli law… .  On the matter of recognizing marriage that was not conducted in accordance to the religious law – including same-sex marriage – it was ruled [by the court] in the past that it is better that the issue be determined by the legislative branch.  (HCJ 7339/15, ¶ 28, translated in Udi Shaham, Supreme Court Rejects Petition to Recognize Same-Sex Marriage, JERUSALEM POST (Aug. 31, 2017).)

Recognition of a new legal status of marriage for same-sex relationships, according to Rubinstein, is a “heavy and charged subject” with religious implications in “a Jewish and democratic state.” (HCJ 7339/15, ¶ 28, translations by author R.L.)  It therefore requires a legislative determination and cannot be achieved through judicial decisions. This conclusion, Rubinstein emphasized, “does not diminish LGBT rights in other areas,” referring to social and economic rights.  (Id.)

Noting that a number of countries, including the United States, have recognized same-sex marriage, Rubinstein concluded that in most countries such recognition was done through legislation.  (Id. ¶ 29.)