The encouragingly innovative opinion of Justice Anat Baron

Justice Baron: Discriminatory laws should not be preserved indefinitely

The High Court of Justice announced its ruling rejecting a petition submitted by same-sex couples to order the state to allow them and couples like them to marry in Israel. This came is no great surprise.

Israeli Supreme Court, source: WikipediaIsraeli Supreme Court, source: Wikipedia

The Court has consistently, for decades, rejected petitions to order the state to institute civil marriage and/or allow non-Orthodox religious marriage and/or recognize marriages performed outside the auspices of the Chief Rabbinate. The recurring argument is that the address for the solution is the Knesset, rather than the Court.

Since Israel's 1992 Basic Law: 'Human Dignity and Liberty' was enacted, which allowed the Supreme Court to annul laws that contradict these fundamental principles, the Court has pointed to the "grandfather clause" which states that the validity of laws enacted prior to the Basic Law would not be affected even if they contradict the binding principles set out therein.

Nevertheless, the ruling included the interesting and encouragingly innovative opinion of Justice Anat Baron. She hinted that perhaps the time had come to set an expiration date for cases of discriminatory laws. Unlike her colleagues, she expressed clear and open support for the rights of the petitioners and of Israelis in general to marry freely in their country. In her submitted opinion, Justice Baron wrote about relations between religion and state in general and the right to marry in particular:

    The complex relationships between religion and state, between freedom of religion and freedom from religion, are among the central and challenging issues that the State of Israel has been dealing with since its inception. In our case, this tension is reflected in the monopoly given to religious courts and religious law in the area of marriage and divorce. This is an arrangement that the state "inherited" from the King's Council on the Land of Israel, from 1922 to 1947. As a derivative of it, and unlike the almost universal norm around the world, the institution of civil marriage does not exist in Israel.

    It cannot be disputed that the arrangement in question violates the right of entire groups of the population to maintain a family life. It is not just same-sex couples - But also those who are forbidden to marry according to Halakha, those who are "without religion", and anyone who wishes to marry a partner of a different religion than his own; as well as those who are "permitted to marry" but are not interested in marrying according to "the religion of Moses and Israel" for reasons of freedom from religion. The Supreme Court has long recognized the constitutional status of the right to family life, which is entrenched in the right to human dignity, and this has been unanimously approved by all the judges of the expanded panel in the Adalah case... As Justice Beinisch mentioned there... "The basic right of a person to choose his spouse and to establish a family unit in his country is part of his dignity and the essence of man's personality".

    In the words of Justice M. Cheshin: "The family unit is the basic cell of human society, and a society and a state are built on it. It is therefore no wonder that the right to family life has been recognized by the international community as a fundamental right... Although this right, the right to marry and to have a family life, has not been explicitly recognized by the basic rights explicitly recognized in the Basic Laws, we all agree that it is... one of the first in in the Kingdom [of Human rights].

    There is, therefore, a reason for the petitioners' claim that their exclusion from the institution of marriage in Israel entails a violation of their basic rights and that of other couples of the same sex... Over the years, the courts in Israel have granted recognition and protection to the economic and social rights deriving from the marital relationship between spouses of common law spouses - but have refrained from recognizing the validity of the relationship as a civil marriage. Thus, from the conception that the introduction of civil marriage and the recognition of the personal status of marriage between same-sex couples (as well as other couples) should be regulated by the Knesset and, taking into account the Jewish and democratic character of the State of Israel...
In my opinion, the complex issue of recognizing civil marriage cannot be exempted only by the protection of economic, social and other rights.
    In my opinion, the complex issue of recognizing civil marriage cannot be exempted only by the protection of economic, social and other rights. [A distinction made by Justice Elyakim Rubinstein, which was one of the last judgments he wrote, distinguishing between these rights, which are recognized in Israeli law as well as for couples who cohabite together without marriage because they cannot marry in Israel; seeing it as a symbolic matter, rather than a practical matter –Uri Regev]

    The status of the marriage goes far beyond the population registry or one's national identity card. The status gives legal validity to the conjugal relationship and expresses social recognition of the relationship between two persons, and therefore has a wider meaning than the sum of the economic and other rights deriving from it. It is therefore clear that the denial of the status of marriage from certain groups in Israeli society conveys a message of inequality and even moral inferiority, in the sense that the relationship is not worthy of respect and protection...

    Appropriately, in this regard, the Supreme Court of the United States, in its ruling recognizing the right of same-sex couples to marry and apply this marriage in all the states of the United States wrote:

    "No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people be-come something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right." (Obergefell v. Hodges, 576 U.S (2015).

    It is difficult to disagree with the position of my colleague... that the violation of the right to marriage and family life is "protected by the shadow" of the provision of the Basic Law: Human Dignity and Liberty. Yet I will add a few words.

An indefinite "encirclement" of the laws of personal status from constitutional scrutiny, through the provision of the preservation of laws, is difficult.
    An indefinite "encirclement" of the laws of personal status from constitutional scrutiny, through the provision of the preservation of laws, is difficult. Justice Prof. Aharon Barak emphasized that this creates an anomaly that is not desirable in our legal system: "... Two sets of laws - old and new - exist side by side without one bringing about the change or cancellation of the other." This is the product of a political compromise. However, it creates a constitutional anomaly. This is not a healthy situation for a legal system. Modern democratic constitutions do not include a provision on the preservation of [old] laws. On the contrary, they are based on... recognition that the present and the future are good for us. This has not been the [trajectory of] Israel's [legal] development.

    It is true that the institution of civil marriage is at the heart of the Israeli conflict between religion and state, and the provision for the preservation of [older] laws constituted a sort of political compromise that enabled the development of law in Israel. However, it is not inconceivable that the time will come when the power of the law-preservation provision will no longer be able to block constitutional processes, particularly with regard to the compatibility of personal status laws with contemporary reality and the socio-cultural-religious mosaic from which it is composed. Such judicial review has already led to the recognition of same-sex marriage in many countries around the world. However, at the present time, I can do nothing but join in the conclusion reached by my colleague...

    Change - its nature and extent - or the lack of change, depends on this question: What [sort of] society will we choose [to have] in the coming decades?

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