In the Supreme Court of Israel, when seated as a Court of High Justice

Cases:
3045/05
3046/05
10218/05
10468/05
10597/05

Before:

President: A. Barak
President: D. Beinish
Vice President: A. Rivlin
Justice: A. Procaccia
Justice: M. Naor
Justice: A. Rubinstein
Justice: A. Chaiot

Petitioners: 1. Yossie Ben-Ari

2. Loren Shomen
3. The organization for citizens rights in Israel
Decision:

(Former) President A. Barak:

Reuven and Shimon are Israeli citizens and residents, they conducted a civil marriage
ceremony outside of the state of Israel, in a manner recognized by the state in which the
marriage was conducted. Upon their return to Israel, they went to the [marriage]
registration official. They requested that their entry in the [marriage] registry be changed
to married. The registrar refused their request. Was his refusal legal? That is the question
that each of the petitioners has placed before the court. And notice: the question before us
is not whether the marriage between two same sex partners within the state of Israel,
conducted outside of the state of Israel, is valid in Israel. The petitioners do not request
that their marriage outside of the state of Israel be made valid in Israel. The question
before is whether the [marriage] registrar – whose authority is derived from the census
law of 1965, as detailed in the Funk Shlezinger case, (CITE) – acted within his authority
when he refused to register the marriage of Reuven and Shimon in the registry. The
petitions before us are directed at the limits of authority of the registrar, and not at the
validity of the marriage.

A. Petitioners

1. Before us are five petitions made by five couples. Each couple is composed of two
men, both citizens and residents of the state of Israel. All petitioners live in Israel as a
couple, and conduct a joint house and family life. They were married in a civil ceremony
in Toronto, Canada, in a manner recognized under law in that state. Upon their return to
Israel they wished to be registered as married in the Census Marriage Registry. Their
petition was accompanied by documents as proof of their marriage. Their petition was
denied. They were told that “These types of weddings are not recognized in the state of
Israel, and as such, they cannot be entered into the registry’s files”. (From a letter written
by the head of the census bureau, 24.5.2005). From here the petitions.

B. The Claims of Each Side

2. The petitioners focus their claims on the authority of the registrar. They claim that the
registrar’s refusal to register their marriage in Toronto violates the Funk Shlezinger case,
and that it discriminates against the couple as compared to couples who are not of the
same sex and harms their right to a family life. They claim that according to the Funk
Shlezinger case, the registrar operates only as a collector of data. The registration in itself
has no power to change status. As such, the registrar’s discretion when determining a
request to register a marriage is minimal. According to the petitioners, once the registrar
is presented with a verified marriage certificate, and once there is no doubt as to its
validity, he must change the registry, and register the petitioners as married. The registrar
has no authority to ask the question of whether the marriage is valid under the laws of the
state of Israel, and whether the couple is eligible to wed in Israel. These questions are
often complex and sensitive. In the opinion of the plaintiffs, these questions are difficult
in the case before us as well. The registrar was not given authority to determine them.
According to the Funk Shlezinger case, so long as no judicial decision invalidating the
marriage has been reached, the registrar is obligated to register them [the marriage] in the
registrar. The petitioners mention that there has not been an Israeli judicial determination
on the eligibility of same sex marriages conducted in Canada, in the Supreme Court or in
the Lower Courts. Therefore no attention should be paid to respondents claim that the
marriage is invalid, and it must be registered. The petitioners insist that this court
repeatedly affirmed the Funk Shlezinger case since its initial ruling. It has been upheld in
matters of personal standing in the context of marriage and adoption and parenthood. The
decision has even been expanded to include the registrations of national and religious
affiliation in the registry. The petitioners claim that this is a valid holding, and that it
should be applied to their case.

3. Respondent requests that we deny the petitions. His position is that there is no room for
the registration of same sex couples who were married in a foreign country. This position
is based on three major rationales. Firstly, in Israeli Law, the legal paradigm of marriages
addresses marriage between a man and a woman. There is no Israeli legal framework that
acknowledges same sex marriage. The Funk Shlezinger case is not relevant to petitioners
case. A distinction must be made between the registration of a marriage conducted
outside of the state of Israel, valid as they may be, which correspond to the basic legal
paradigm of marriage in Israeli law, and for whom the Funk Shlezinger case applies with
respect to registration, and marriages which do not correspond to the basic legal paradigm
of marriage in Israel. Secondly, respondent note that most of the world’s countries do not
recognize same sex marriages conducted in another country, and do not register same sex
marriages that were conducted in another country. Many countries have passed laws that
explicitly declare marriage to be between a man and a woman, and that same sex
marriages conducted in foreign countries are not to be recognized. Therefore, it is not
possible to say that comparative law requires such recognition, since it is not possible to
say that those few countries that do offer same sex marriages expect their marriages to be
recognized in foreign countries. Thirdly, the respondent holds that the question of
marriage registration for same sex couples is the type of question that should be settled
by the legislature. A regulatory process should not be used in order to create a new legal
framework against the wishes of the legislature. When passing the Census Law, the
legislature did not view the law as a tool for creating new legal paradigms. On the
contrary, the legislature intended that the registrar of the census bureau reflect the current
legal paradigms in Israel in matters of personal status. The creation of a new category of
personal status falls under the category of a primary arrangement, and is therefore under
the purview of the legislature. Therefore, the legislature is the correct place to determine
the status of same sex marriages. This is especially true since the question addresses
controversial questions of public policy related to the fabric of society.

C. The Process

4. The petitions were heard in front of a forum of three judges (President A. Barak, A.
Rubinstein, and A. Chaiot). The triumvirates decisions (from 16.11.2005) gave both sides
the opportunity to complete their claims. Furthermore it was held that the triumvirate was
considering expanding its size, and that oral argument would be heard. The forum was
expanded (on 3.3.2006), and oral arguments were heard (28.5.2006). All sides mentioned
before us that they were willing to view the petitions as temporary injunctions, and that
the deliberation will be in light of them.

D. The Legislative Framework

5. The Census Bureau Law of 1965 (hereon the registration law) calls into effect a census
bureau. It is determined that in the census’ registrar details regarding residents are
recorded. These details are determined in section two of the registration law.

“The Registry and the details of registration

2. a. In the registry the following details regarding a resident shall be recorded, and any
changes in them:
(1) Family name, first name, and any prior names;
(2) Parents’ names.
(3) Date and place of birth
(4) Gender
(5) Nationality
(6) Religion
(7) Personal status (single, married, divorced, or widowed)
(8) Spouse’s name
(9) Children’s names, dates of birth and genders
(10) Citizenships held now and in the past.
(11) Postal address
(11a) Postal address under the meaning of the law for updating of addresses,
2005, whenever a notice is given.
(12) Date of entry into Israel
(13) Date upon which residency is conferred as per section 1(a)
b. A resident registering for the first time will have an identification number associated
with his registration.

The Census Law determines the validity of the registry (in part 3) using the following
language:

“The registry as apparent

3. Registration in the registry, all copies or excerpts from it, and all certificates that is
given according to this law will be as apparent evidence to the correctness of the details
of the registry, as they appear in sections (1) through (4) and (9) through (13) of section 2
[above].

Sections (5) through (8) were removed from the apparent evidence clause. These sections
deal with issues of Nationality (5), Religion (6), Personal Status (7) and spouse’s name
(8).
6. Chapter c. of the Census Law deals with the authority of the registrar. It is determined
that it falls within the registrar’s authority to demand from an individual reporting a
registration any documentation pertaining to that registration (Part 19(1)). He is also
permitted to indicate the validity of any document or piece of information which he
receives (Part 19(2)). The Law distinguishes between a primary registry and a later
update. The primary registration shall be made by a public certificate, or, in the absence
of such a certificate, by the announcement of the requester. Registration of changes – the
framework under which the cases we are dealing with falls – shall be conducted as
follows (Part 19(a)):

“A change in the details of the registration of a resident shall be conducted in

accordance with a document that is received according to parts (15) and (16) or by a
document received according to part (17) that was received in conjunction with a public
certificate indicating the change.”

In the petitions before us, no documents were received under Part 15 (that deals
with official actions within the state of Israel such as marriages that are registered in
accordance with the marriage and divorce laws [of Israel]), and no documents were
received under part 16 (Judicial determinations). The issues before us therefore fall under
the purview of part 17 of the census law that determines:

“If a change has occurred in a manner that is not detailed in parts 15 and 16 in the details
of the registry of a resident, he must inform the registrar of this change within 30 days…”

This message must be accompanied by a “public notice indicating the change”. The
notice of the requester is not sufficient (See Tamarin v. Israel, 197, Shtedman v. Minister
of the interior, 766, Psaro (Goldstein) v. Minister of the interior, 661, a “public
certificate”, in the case at hand, refers to the same certificate mentioned in the “testimony
law” which is the law of evidence (new version) 1971). In our case, these refer to
marriage certificates produced by an authorized agent, according to Canadian law, in the
location of the ceremony (see definition of a “public certificate” in part 29 of the
evidence law).

E. The Normative Position of the Census Bureau, and the Opinion of the Registrar

7. What consideration does the registrar’s opinion receive? This question has been dealt
with in a long series of decisions. The major decision is in the case of Funk Shlezinger.
Which was decided over forty two years ago. In that decision, Mrs. Shlezinger, a
Christian resident of Israel, was married to Mr. Shlezinger, a Jewish citizen of Israel. The
Marriage took place in Cyprus. On the basis of the Cypriot marriage certificate, Mrs.
Shlezinger requested to be registered as married in the Israeli census. The minister of the
interior refused her request. At the core of his refusal was the concept that according to
existing international private law that existed in Israel, the couple were not married. In a
majority opinion (Judges Y. Zussman, T. Baranzon, A. Vitkin, A. Mani, against the
dissenting opinion of justice M. Zilberberg), a decision was reached. At the core of Judge
Zussman’s opinion, was the concept that the census law of 1949 “did not equate with
registry in the census proof of anything. The purpose of the law is the collection of
statistical material. This material may or may not be correct, and no one is vouching for
its validity.” (p. 244, and Supreme Court Tsabari Chasan Abu-Rassi v. The Military
Governor of the Galilee). In this context, it was decided that “the duties of the registrar
are the duties of a collector of statistical information, with no judicial decision making
power whatsoever”(244). Therefore, “When recording the personal status of a resident, it
is not the registrar’s duty to give an opinion as to the validity of a marriage. It is good that
the legislator did not place upon the registrar a duty that he is not equipped to fulfill. It is
sufficient for the registrar to update the registry if documents are brought to him
indicating the applicant has conducted a marriage ceremony.” (252) In a similar spirit,
judge Zussman indicated that the Supreme Court, when deliberating over the refusal of
the registrar to register the change in status of the petitioner, does not determine the
validity of the marriage. “It is important to emphasize” writes Judge Zussman “that we
are not dealing with the validity of the marriage, the question before us is… is there a
justification for the registrar to refuse the request of a woman as married.” (242).
Judge Zussman acknowledges that fact that there may be cases in which the incorrectness
of the details which the petitioner request to register in the census register are plainly and
undoubtedly incorrect. In these cases the registrar is not required to register the
information. “the registrar is not required to use his authority in order to participate in an
act of deception. When an individual who is clearly an adult comes to register as a five
year old, there is no doubt that the registration is false, and that the act is one of
deception. In this case, the clerk of the registry will be acting correctly if he refuses to
register the requested details, and this court will obviously not make use of its power… to
force the registrar to “falsify” census records.” (p. 243).

8. Since the Funk Shlenzinger case was decided, the court has followed it. Over time its
power has increased. Changes in the Census Law did not reduce the power of the
decision. In the Shalit case, where a ruling was made according to the revised law, Judge
Y. Zussman wrote:

“The authority vested in the clerk of the registry is not judicial in its
nature, and his duty does not require that he make a decision in a judicial
question. It is therefore unsurprising that neither law nor instruction granted the
clerk of the registry the tools used by a court in order to discover the truth… A
citizen coming forward to inform the registry as a matter of fact, as he is required
by law, is considered to be speaking the truth [unless shown otherwise]. It is
unworthy of the clerk to suspect those who are righteous… registration is not
conditional on the clerk believing that the facts with which he is presented are
correct… the registration is but an act of registering the details as they were
granted to the clerk of the registry… the one exception to this rule is the case
where a detail is visibly obviously untrue… such as the case where a grown man
wishes to register as a five year old… in this case the clerk should refuse to
register the information, since he is under no obligation to participate in an act of
deception… as its name indicates, the census law is a law of census (registration
in Hebrew). As its precursor, its purpose is the collection of statistical
information. (Shalit v. The minister of the interior, 477, 506, 507, 508).
 In this spirit was the law decided after these cases (See e.g. the Tamarin case, 227
and the Stedman case, 770).

9. The Funk Shlezinger case was tested in the case of “Shas” (United Eastern Observant
Organization – Shas v. the administrator of population in the ministry of the interior,
723). In a majority opinion (President M. Shamgar, Judges A. Barak, M. Biyevski and G.
Back, with Judge M. Alon dissenting), it was determined that the registrar must register
the conversion [to Judaism] of an individual when presented with a document indicating
conversion outside of the state of Israel. President Shamgar Wrote:

“If after receiving details as described above, the clerk of the registry had
a reasonable basis on which to believe that the information he received was
incorrect, he should refuse to register on its basis (section 19b(b) of the above
law, the census law). Incorrect information includes information that includes a
lie (for instance, when there is evidence of deception, or that the person
registering is in fact the member of a different religion), it can be understood from
the instructions of the above law, that the clerk of the registry does not examine
the validity of the religious conversion ceremony conducted outside the country,
which the document he receives indicates. The certificate [of conversion] on its
part, must indicate that such a ceremony took place in the above mentioned
[foreign] Jewish community, and that a change in the registry is required. This
understanding of the Clerk of the Registries duties with respect to registering
individual’s religious and national affiliation, also rises from past court decisions,
such as for instance the case of Shlezinger v. Minister of the interior (732).”

Also the minority judge, Judge M. Alon assumed that “The Clerk of the Registry must
register the details given in the certificate, unless he has a reasonable basis to believev
that the details are incorrect. (citing the Shlezinger and Shalit cases)”. In that case, Vice
President M. Alon thought that in light of the definition of the word “Jew” in the census
law, the clerk of the registry had a reasonable basis to believe that the certificate he had
received was false.

10. The Shas case deals with the registrar’s authority regarding nationality (element 5)
and religion (element 6). This question was also dealt with in the Psaro (Goldstein) case.
Former President M. Shamgar – in accordance with the opinions of president A. Barak,
and justices A. Matsa, M. Cheshin, T. Shtrasberg-Cohen and D. Dorner, with T. Tal
dissenting, indicated that “The census law [law of the registry] is a civil law with the
purpose of gathering factual statistical information. The minister in charge of executing
the law is the minister of the interior. It falls under his authority, and under the authority
of his Clerks, to conduct the registration according to the information received from
residents, and under the restrictions that were set forth in the judicial ruling … in the Shas
case. When dealing with a primary registration, a clerk does not have the authority to
question the validity of a conversion.” (688)

11. In the Psaro (Goldstein) case, the conversion in Israel of Mrs. Elian Chava Psaro
(Goldstein) was dealt with. This question was not decided in that case. All that was
decided was that her conversion was not valid under the religious ruling of conversion.
There was no decision indicating that the conversion process she went through was valid.
Before the petitioner went through the conversion process, and before a ruling came
down in her case, she married Mr. Uri Goldstein in a consular ceremony in the Brazilian
embassy in Israel. The couple turned to the registrar, requesting to be registered as
married. The registrar refused. His rationale was that a foreign consul does not have the
authority to conduct a marriage ceremony in Israel. The Court (vice president A. Barak
and justices A. Goldberg and A. Matsa) decided that according to the Funk Shlezinger
decision, the clerk of the registry must register the couple as married. (Goldstein case,
89). I mentioned in my opinion that the question of whether a consular marriage is legal
in Israel is a difficult question. Under these circumstances, the clerk of the registry must
act on the basis of a public certificate which he receives pertaining to the marriage. In my
decision I noted that:

“Since the Funk Shlezinger decision, the Supreme Court has repeatedly
held that “the duties of the registrar are the duties of a collector of statistical
information for the purpose of managing records of residency, void of any judicial
authority. (Zussman, 244). Therefore ‘the clerk must enter what the resident tells
him to’ (249), unless dealing with a case ‘where the things being told to the clerk
are obviously incorrect, and there is no reasonable doubt regarding their
incorrectness’ (243). From here, if the couple show before the judge a valid
marriage certificate, indicating a valid marriage ceremony conducted in a
consulate in Israel, the Clerk must register the couple as married, unless the
details are obviously false, or there is no doubt that the consul has no authority to
conduct a marriage ceremony… since there is doubt, when a non-Jewish woman
(citizen of whatever country) and a Jewish man (of whatever citizenship) turn to
the registry and present him with a marriage certificate conducted in their
consulate, the clerk of the registry must register them as married, since ‘the
answer to the question of whether the marriage is valid has both proponents and
opponents, and is not clear cut, and inquiring into these questions exceeds the
authority of the clerk of the registry.’ (Funk Shlezinger Decision, 252).

In this spirit, Justice M. Cheshin decided in one of the cases that “It is the duty of the
registrar to register information which he receives (such as marriage), without having the
authority to examine the legal validity of the information (such as whether the marriage is
legal, see Shlezinger and Shalit cases) (Kontras inc. v. Ministry of Treasury, Internal
Revenue Division, 289, 387). Justice I. Trikel turned to this approach in one of the cases
mentioning that: “registering respondents as the children of the inheritees in their
identification document at the time when they came to the country has no bearing on the
recognition of these children as adopted children of the inheritees (on the legal relevance
of the registry and other identifying documents related to the census law (1965) see Judge
Zussman’s words in the Shlezinger case, Justice C. Cohen in the Shalit case, and
President A. Barak in the Goldstein case). (Yehud v. Yehud, 865).

12. The Funk Shlezinger case was reexamined in the Berner-Kadish case. Here an order
to adopt was given in the stat of CA, whereby the child of one of a single sex couple was
to be adopted by her partner. The couple returned to Israel. They turned to the registry to
have their adoption registered. The registrar refused. His position was that from a
biological viewpoint, two parents of the same sex is not possible, and that therefore the
matter was clearly false. The petition was accepted. Justice Dorner stated:

“In a continuing decision, beginning with the Shlezinger case, it has been
decided that the registrar has no authority to decide what to enter into the registry,
but must enter any information given to him by residents, unless ‘dealing with a
clear and obvious falsehood, which is not in doubt’ (243). The registry before us
does not change biological facts, but rather legal facts. (Berner-Kadish v. Minister
of the interior, 368, 374).

Judge D. Beinish joined in this approach. She acknowledged that at the core of the
Minister of the Interior’s decision was the exception mentioned in the Shlezinger case,
permitting the registrar not to register a clear falsehood, that is undoubtedly false. Justice
Beinish then mentioned that the existence of such a falsehood was not clear in the case
before the court:

“In the case before us, the respondent does not have a ‘clear and obvious
falsehood’ he can point to’; the detail under question is not a biological fact, but
rather a complex legal question… respondent’s claim… that the request be denied
due to biological impossibility, is simply rephrasing of the claim that adoption of
a child of one single sex parent by his / her partner is not possible… In the
absence of a claim regarding the validity of the foreign adoption… the clerk of the
registry must register the adoption based on available documentation (p. 376).”

The dissenting Jsutice, A. Zoabi, also expressed his opinion on the Shlezinger case. His
conclusion that the adoption should not be registered is based on two reasons: Firstly the
basis for the shlezinger decision was that registration of marriage has no evidentiary
value [to the fact that the couple are in fact married], and is there for the sole purpose of
gathering statistical information. In the matter of the adoption, the registration is of the
names of the parents (part (2)), which provides a form of status quo evidence to its
validity. Secondly, in order to make an adoption valid, it must be recognized according to
the law for the recognition of foreign judgments (1958). Without this recognition, the
judgment is not valid in Israel. In this manner it is different than a marriage certificate,
which does not require recognition through registration. It is worth mentioning that the
Berner – Kadish case has had another deliberation scheduled. This deliberation has yet to
take place.

13. The next link in the Funk Shlezinger line of reasoning is in the Naamat case, (Naamat
v. minister of the interior, 721). Plaintiffs went through reform or conservative
conversion processes (in Israel or abroad). They wished to be registered in the registry as
of Jewish religion and nationality. The registrar refused their request. We’ve decided in
the Naamat case that the registrar acted incorrectly. The basis for our decision lies in the
Funk Shlezinger case. And therefore I wrote (for the majority with vice president S.
Levin, Judges T. Or, A. Matsa, m. Cheshin, T. Shtrasburg-Cohen, D. Dorner, D. Beinish.
A. Rivlin, with Y. Engelrad and Y Tirkel dissenting).

“The Funk Shlezinger decision of forty years ago still stands. In all
matters pertaining to the registration of religion and nationality, it determines that
the duties of the registrar is that of ‘… a collector of statistical information in
order to manage a registry of residents…’ (244). The registrar has no judicial
authority, and is therefore unable to decide an open judicial question. When asked
to make a primary registration, he must do so, even when the judicial validity of
the request is unclear, so long as its incorrectness is not clear and obvious. When
the clerk of the registry is asked to change an entry, a public certification must be
attached to the request.”

This approach was reiterated in the Goldman case (Goldman v. ministry of the interior,
385). Justice M. Cheshin wrote:

“The census law is no more than an administrative-registrational law, with

the purpose of maintaining a database on the population of Israel, and given that
the law is what it is, there is no reason to allow it to decide on question that are
clearly outside of its purview… the value of registration as a matter of principal is
the value of registering statistical information, and that is its value in fact as well.”
(393, 395).

14. The Funk Shlezinger case was criticized, (See e.g. “to the question of mixed
marriages conducted before a consul in Israel”, “The Advocate” [Israeli Law Journal],
1995, 188). From its inception it was noted that the statistical characteristics of the census
registry “belied its true significance”. (Judge M. Landuy, Gurfinkel and Chaklai v.
Minister of the Interior, 2048, 2071). Judge T. Tal Emphasized that “the approach of
purely statistical registration ignores reality.” (Psaro (Goldstein), 709). Judge Y. Tirkel
added “I fear that today this approach may be seen as ignoring a problem, or turning a
blind eye.” (Naamat case, 764). Judge Y. Engelrad stated that “If we are only dealing
with an insignificant statistic, why so many arguments regarding registration? The truth is
that the symbol here is also the substance, and without a certain world view, there is no
determination on the matter of registration, and no statistic.” (Naamat, 757). Indeed, in
the Naamat case, the state asked us to deviate from the Funk Shlezinger holding. This
request was denied, where we noted that:

“The Funk Shlezinger decision has grown roots in judicial decision

making, and a heavy rationale would be necessary in order to cause us to deviate
from it. Such rationales were not brought before us. The calim that state
authorities rely on the information is not at all convincing. State administrative
agencies should act within a legal framework. As such, they should be aware of
the limits of the information in the census registry … given the exposure these
issues have had – the public is also likely to be aware of limits on the validity of
Census registry information in matters of religion, nationality and personal
status… ‘are there only for the purpose of gathering statistical information, and do
 not grant any special rights to the registree’ (Judge S. Cheshin in the case of Abu
Ras, 1476). Indeed, the registry in the Census is ‘neutral’ to the struggles
surrounding issues of religion, nationality and personal status, and should remain
so. Struggles on these matters should be conducted when investigating the
substantive rights at stake, outside of the context of the census registry.” (id. 745).

Indeed, Funk Shlezinger is a good and worthy decision. It is incorrect to grant the clerk of
the registry – meaning the minister of the interior – authority to make decisions about the
fundamental fabric of Israeli society, without a specific law permitting him to do so. It is
inconceivable that every time the minister of the interior changes, policy towards key
issues fundamental to Israeli society will also change. These questions shold be
determined by the people, and their representatives in the Israeli Knesset [house of
representatitves]. So long as the Knesset has not had its say, these decisions should be
kept away from the census registry. The Funk Shlezinger decision expresses this view
point. Indeed, anyone interested in postponing decisions related to [national] symbols
should support the continuation of the Shlezinger decision.

“The law of the census is in its essence a technical law, and if we were to
place upon its shoulders the heavy burden of dealing with fundamental questions,
it would collapse. The census law was not intended to contain questions of
religion and nationality, of what is the correct process of conversion, and who is
and is not a Jew. These decisions are an historical matter, and given what they are,
the claim that the registry should determine them is both strange and ridiculous.
These decisions were left neither to the registry, nor to the courts supervising the
registry’s activities.” (id. 395).

Of course, the Funk Shlezinger decision does not preclude a judicial decision on the
matters of religion, nationality and marriage. However, it does place this judicial decision
in the appropriate light. Regardless of the technical decision in the matter of the registry,
a substantive decision on the core issues may be arrived at. Thus for example, the validity
of non-orthodox conversions shall not be determined in the artificial context of the duties
of the registrar, (See Shas and Naamat cases), but rather in the substantive case of the law
of return (See Tushbeim v. minister of the interior, 412). Changing the framework of the
debate places these issues in the appropriate context, where the grand picture of values
and rights that need to be taken into account are taken into account.

15. In the petitions before us, the state does not ask us to reconsider the Funk Shlezinger
decisions. All sides have placed the Funk Shelzinger decision as a guiding light to their
arguments. The petitioners indicated that they do not want a determination of whether
their marriage in Canada is valid in Israel. The state is not requesting such a
determination either. The dispute between the two sides is in regards to the extent of the
Funk Shlezinger decision. Petitioners claim that the cases before us fall under the Fuink
Shlezinger decision. The registrar must register the changes in marriage status presented
in the Canadian marriage certificate without inquiring into the validity of the certificate in
Israel. The state, on the other hand, claims that same sex marriage is not a form of
marriage recognized in the state of Israel, and therefore falls outside of the Funk
Shlezinger decision. The state writes:

“A distinction must be made between registering a foreign marriage that

conforms to the legal framework of marriage in Israel, regardless of their validity,
and the registration of a marriage that does not conform to this legal framework.
(Paragrpah 35 in respondent brief, 23.3.2006).

The determination of this question will now be addressed:

F. The Funk Shlezinger case and the claim regarding a legal framework

16. All sides agree that the marriage certificates presented to the registrar are valid under
Canadian law; that a marriage ceremony was conducted in Canada; that the details in the
certificate are correct. Upon the basis of these facts, we are requested to conclude that the
registrar should register the couple as married. This is the clear language used by Judge
Y. Zussman in the Shlezinger case:

“When registering the personal status of a resident, it is not the job of the
clerk of the registry to give his opinion on the validity of the marriage… It is
sufficient for him to simply register the marriage, if he is presented with
information that the resident conducted a marriage ceremony.”

The state claims that this decision only holds for a marriage whose structure is recognized
in Israel. This structure reflects the legislature’s opinion on the variety of possible
personal status’s available to an individual. In our matter, the available structure include
“Single, Married, Divorced, Widowed”(Part 2 (a)(7) to the census law). The word
‘married’ in this context refers to the accepted marriage structures under Israeli law. This
structure refers to heterosexual marriages only. In this matter the state differentiates
between a “social structure” a “social structure with some legal implications” and a “legal
structure”. The social structure reflects personal and familial relations accepted by
society. Occasionally it may bring about changes in personal status that do not
correspond to legal changes worthy of registration. Then it may be a “social structure
with some legal implications”. This structure is different from a legal structure in that it
does not include a legal status, as opposed to a legal structure, which is based on legal
status. The state claims that in the case at hand, the relationship between petitioners falls
under the category of “social structure with some legal implications”, and not “legal
structure”. Is the law with the state?

17. The position held by the state is not acceptable to me. It attempts to return decisions
regarding personal status to the registry. With much effort, over the period of forty years,
decisions regarding personal status were removed from the hands of the registry, and
from judicial determinations related to the registry. The conversation about “legal
structure” attempts to return the question of personal status to the discussion regarding
registering in the census registry. To this we cannot agree. All claims brought over the
years, supporting the Shlezinger decision, contradict the concept of a legal structure that
respondent has created. The registry was not created in order to determine questions of
legal structure; the clerk of the registry is not qualified to determine whether a “legal
structure” or only a “social structure with some legal implications” exists; the registry
passes on statistical information about personal status (births, deaths, marriage, divorce),
and not legal constructions that have passed the registry’s clerk’s examination. It is
inappropriate to conduct the battle over personal status at the point of census registration.

18. This conversation about “recognized legal structure” is new to us. It does not appear
in the state’s claims in the past. In my opinion it does not contribute to the issue before
us. It raises questions as to the level of abstraction of the word structure. Is a marriage
recognized in Canada a recognized legal structure? Is the adoption of the child of a same
sex life partner a “recognized legal structure”? Adoption is obviously a recognized legal
structure. Does the life style presented by a single sex couple invalidate this legal
structure? What is the standard which should be applied to this question? In any case, in
the Berner-Kadish case it was determined that this adoption should be registered. Was the
clerk of the registry told on that day, before our decision in the matter of Yarus Chakak v.
Legal Counsel to the Government (unpublished opinion) to write “unrecognized legal
structure” or “social structure with some legal implications”? What is the difference
between registering a single sex adoption and a single sex marriage?

19. The state recognizes that a shared life by a same sex couple constitutes a “social
structure with some legal implications”, claims the state:

“the state of Israel recognizes same sex couplehood, in a number of

contexts. This recognition is given in socio-economic matters, and even in matters
of arranging for residence in the state” (paragraph 19, respondent brief,
13.11.2005).

The state is indeed correct in this assertion. In a long list of judicial decisions it was
determined that same sex couples have certain rights in the state of Israel. A partial list of
these decisions includes: (1) Rights related to group arrangements limited to couples (El
Al v. Danilevits), (2) Granting pension rights (Uzi Even v. University of TA, unpublished
decision), Rights to pensions according to military service laws (Steiner v. IDF) (4) the
right to commemoration (Steiner v. Ministry of Defense), (5) recognition as a couple for
purposes of “family violence” laws (anon v. anon (unpublished)), (6) recognition as a
couple for the purposes of family law courts (unpublished opinions) (7) recognition as
known in public in matters of inheritance (A.M. v. public trustee), (8) inheritance laws,
according to the national security act (Giora Raz – national security admin.). Therefore
the “social structure” of single sex couplehood has clearly brought about some “legal
implications”. Why do these implications not reach the level of “legal structure”?The
state claims that these implications do not reach the level of legal structure, since that is
why they cannot be used to change personal status. It is found that at the core of the
state’s distinction is the matter of status. It deprives homosexual marriages from “legal
structure” since they lack status. Therefore, according to the state’s holding, the question
of registration is derived from the question of legal structure, and the question of legal
structure from status. According to the state’s approach, the registrar must examine the
question of status before he determines the existence of a legal structure. This approach
contradicts the Funk Shlezinger holding, which stated that status is not a matter to be
dealt with by the census registry; the registrar does not determine status; legal review of a
registrar’s actions should not deal with questions of status. The clerk of registry cannot
and does not need to determine whether a certain issue has stepped beyond the realm of
“social structure with some legal implications” and into the realm of “legal structure”.
The court when reviewing the legality of the registrar’s actions should not deal with these
issues.

20. We asked ourselves if it cannot be said that at the core of the concept of “legal
structures” lies the desire of the state to eliminate the registration of marriages conducted
outside of Israel that contradict public law in Israel. From the state’s reply in writing and
orally we conclude that that is not at all its purpose. In writing the state claimed:

“The position with respect to not registering [same sex marriages] does
not constitute a value or public position on whether same sex marriages should be
recognized, but rather a professional legal opinion regarding current legal
practices.” (paragraph 94, respondents brief, 11.13.2005).

In response to our questions during oral argument, counsel for the state stated that she is
not bringing a claim related to a “public position”.

21. The has state claimed that according to Funk Shlezinger, the clerk of the registrar
should not register information that is clearly untrue, and whose falsehood is not given to
significant controversy. According to the state, registering same sex couples is a
registration that is clearly on its face false, since Israel lacks a law that recognizes this
type of marriage. This claim is incorrect for two reasons: Firstly, it is incorrect from the
view point of the Funk Shlezinger decision, which deals with a factual not legal
falsehood (See Berner-Kadish, 375, 377). Justice D. Dorner mentioned in the same case
(dealing with registering an adoption by a same sex partner) that “the registry before us
reflects a legal, not a biological matter” (137). Justice D. Beinish also mentioned that “the
claim of respondent in this case, that the falsehood of the matter is clear, since two
mothers are a biological impossibility, is but another version of the claim that an adoption
maid by a same sex partner should not be recognized [legally]) (377). Secondly,
regarding the claim that there is a “clear and apparent falsehood”, the question is not
whether same sex marriages are recognized in Israel. The question is whether Israeli law
will recognize same sex marriages conducted in a foreign jurisdiction. The answer to this
question is not a simple matter. It requires the finest of distinctions. Either way, the
determination of this matter, according to our decision in Funk Shlezinger, will not be
done through the process of census registration.

22. The claim that there is no social consensus over the question of same sex marriage
passes through the state’s claims like a common thread; that courts should not determine
this question; that recognizing the status of same sex couples is a value question, that it
should be determined in the legislature. I agree with these claims, in so far as they
address the question of whether a court should determine the legal status of same sex
marriages in the state of Israel. This position has already been expressed in a number of
cases (Tefer v. state of Israel, 7; Efrat v. ministry of the interior, census bureau 749; Ben-
menasha v. minister of religious affairs, 876; the Yarus-Chakak case). In the Ben
Menashe case, petitioner requested that we instruct the minister of religious affairs to
appoint a clerk who will conduct civil marriages in special cases. The petition was
rejected. I wrote:

“The question of conducting civil marriages between couples who lack a

religious affiliation – similar to the case of conducting a marriage ceremony for
individuals with different religious affiliations – is a difficult and complex
question. There is no national consensus on the matter. It is related to the
recognition of a status that is in effect towards all others. Under these
circumstances it seems that the appropriate body to deal with this issue is the
Knesset [Israeli legislature] and not courts”. (878)

Indeed, it is acceptable to me that questions of marriage in Israel, with marriage between

two same sex partners falling under this category, should be determined first and
foremost by the legislature. This is not the question before us. We are not dealing with
marriage in Israel. This and more: we are not being asked to recognize a same sex
marriage conducted in Israel. When this question arises, it will be examined under the
accepted tools of international private law. All that is before us, and all that the Funk
Shlezinger case wishes to solve, is the question of registration – registration and not
recognition – of a same sex marriage conducted outside of Israel. The state’s approach,
that we must reject registration of these marriages, because they do not constitute a
“recognized legal structure” in the state of Israel, is an attempt to answer a question of
status; it is a position that is asking the court to state an opinion on a controversial social
question. The importance of the Funk Shlezinger decision is, amongst others, that it does
not force the court to take a position on questions of status. Yet the state’s own approach
regarding legal structures suggests that these questions should be left in the hands of the
legislature.

23. Before we conclude, we reemphasize what we are deciding on today, and what we are
not deciding on today. We are deciding that within the context of a statistical gatherer of
information, the clerk of the registery must register what is written on any public
certificate he receives from the petitioners, stating the petitioners are married. We are not
deciding that same sex marriages are recognized in Israel; we are not recognizing a new
status for these marriages; we are not expressing an opinion on the validity of a foreign
same sex marriage certificate from a foreign jurisdiction (whether the marriage is
between Israeli citizens, or an Israeli and foreign citizen). The answer to these questions,
which we do not arrive at today, is difficult and complex (see Yonai, “Regarding samee
sex proclivities – between history and sociology”, law and government D, 531 (1998);
Harel, “Judicial institutions and homosexuality – respect or patience?” Law and
government D 785; Tamir (Itzchaki) “The right to equality between Same Sex couples”
The Advocate, 94 (2005); Harel “The rise and fall of the homosexual judicial revolution”
The Trial, 195 (2002); Biton “The impact of the basic law respect for individuals and
their freedom on same sex couples” 401 (2002). See also R. E. Heinz “Sexual
Orientation, a Human Right” (1995); R. Wintemute “Sexual Orientation and Human
Rights” (1995); E. Wintemute and M. Andenas “Legal Recognition of Same Sex
Partnerships” (2001); D. Pinello, “Gay Rights and American Law” (2003); Grestman,
“Same Sex marriage and the Constitution”, (2004) “Partnership”, (2001)). It is our hope
that the Knesset will express its opinion on at least some of these issues.

As a result we turn our preliminary injunction into a permanent ruling.

Respondent must register petitioners as married in section 7(a)(2) of the census registry.

(Former) President

Presdient D. Beinish:

I agree with former president Barak’s decision and explanations.

A legal tradition of many years has created and substantiated a legal framework that
distinguishes between the census registry, its duties and limitations, and the difficult
issues of determining personal status. The fact that from petitioners view point there is
clearly importance to the registry and to its content, does not detract from the substantive
decision of this court that there is a distinction between the contents of the registry and
the question of personal status. This approach has created a framework that leaves the
most difficult questions undecided from a legal viewpoint, and the difficult question of
social recognition in the hands of the legislature. On all these my colleague the (former)
president spoke in his decision, which I join.

President

Vice President A. Rivlin

I agree

Vice President

Judge A. Procatsia

I agree with the decision of my colleague, (Former) president A. Barak.

Judge

Judge M. Naor

I agree

Judge
Judge A. Chaiot

I agree

Judge

Judge A. Rubinstein

a. I fear that my opinion differs from the opinion of the majority of my colleagues.
Forty three years ago, a decision was reached in this court on the matter of Funk
Shlezinger, determining that the clerk of the census registry must register a couple as
married, if the couple approaches him with evidence that a foreign marriage ceremony
was conducted, without investigating the validity of the marriage. The decision dealt with
a Jew and Christian married in Cyprus. Over time the decision became institutionalized,
and was used to justify similar decisions such as Shas (Shas v. census bureau, 723); Psaro
(Goldstein) in (PSaro (Goldstein) v. minister of the interior, 681); and naamat (naamat v.
minister of the interior, 721), in the matters of registering nationality, religion and
conversion, and in the Berner-Kadish case (Berner-Kadish v. minister of the interior) in
the matter of same sex adoption (in this final matter an additional determination is
scheduled, Minister of the interior v. Kadish). Now my colleague the president, and with
her other members of the court, wish to apply this approach to same sex marriage. I
disagree. In my view the matter at hand has nothing to do with registration, a matter that
has long lost its relevance, but rather is a statement about social values, which is the true
purpose of petitioners. So much so that as of this moment there are no economic or
“practical” considerations on the basis of which the petition was brought. I am therefore
skeptical of the distinction between registration and recognition that my colleagues make.
My opinion in summary in the matter of this petition, is that the issue of same sex
marriage, which is a relatively new issue in public dialogue, as well as in historical
dialogue, and is not recognized in most of the states in the world, and which raises
difficulties for many sectors of the population for various reasons – falls under the
purview of the legislature, and not the creative interpretation abilities of the court.

b. My colleague the (former) president “sanctifies” the Funk Shlezinger decision,

claiming that its utility is increasing with time, since it permits – in his language – “social
calm” in sensitive areas.

c. The question in my view is the limits of the Funk Shlezinger decision. I am of the
opinion that its limits have already been overstretched, and there is no reason to expand
them further. Its purpose of responding to the issue of civil marriages, which had not
been defined in Israel and existed in most other places in the world, has long passed, and
yet the same line of reasoning has been imposed on other issues in different contexts. In
the specific case at hand, this reasoning has been applied to a matter that is undecided in
the rest of the world, as well as in Israel. The average person in Israel does not
distinguish between registration and recognition; if we were to walk the streets of the city
and ask its residence whether they distinguish between the two, all agree that they would
not. Under these circumstances the courts should defer to the legislature. That is my
approach in summary. I will now expand on it in detail.

On the Funk Shlezinger Decision

d. Mr. Shlezinger, a Jew, And Mrs. Funk, a non-Jew, were married in a civil
ceremony in Cyprus. When the came to Israel, they requested to be registered as married
in the census registry. The clerk of the registry refused their request, and they appealed
his refusal. Judge Zussman said for the majority:

“The matter is clear and beyond doubt, that the duties of the clerk of the
registry, according to the above decision, (the old census law, replaced by the new
census law 1965) is but the job of a collector of statistical information for the
purpose of managing a population registry, with no judicial authority
whatsoever.” (244).

These words of Judge Zussman relied on, amongst others, the words of the Knesset
consul (3.10.58) “administrative agencies are not capable of, supposed to, or permitted
to engage in decisions based on religious views [in the context of their jobs]” (246,
emphasis in the original). Furthermore, judge Zussman indicated that registration in the
census registry could not serve as evidence for any matter of substance. The purpose of
the … [census] law is the collection of statistical information. This information could be
correct or incorrect, and no one vouches for its correctness…” (249). Examples were
brought here indicating that registration is not considered evidence for matters of
substance.

e. The court – in a majority opinion – did not want to enter the mine field of
religious law. Therefore it turned to the Skornik decision (Leib Skornick v. Miriam
Skornick, 141), saying: “The state is not claiming before us that the marriage is invalid
because it was conducted in a civil ceremony; there is no place for such a claim, since
this court has already decided, that on the matter of the method of marriage, local
practices are followed (the Leib Skornick case) and without evidence to the contrary, they
are assumed to have been conducted correctly.” (252-253). Judge Zussman then added:

“The marriage will be annulled… if an Israeli judge, expressing the

sentiment of the people of the state of Israel, will have to say, that the validity of
this marriage is unacceptable to our lifestyle… the marriage is annulled under
religious rulings, will have a heavy, though not necessary decisive weight in
determining the outcome. The people of the state of Israel are divided into two
camps as of today. One camp observes religious strictures, as opposed to another
camp that emphasizes the difference between a state of secular and religious laws.
The viewpoints expressed by these two camps contradict each other on a
fundamental level. The public order in Israel does not mean that a judge will
enforce the views of one camp on another. Life requires a tolerant approach
towards others, and giving consideration to different opinions, and therefore the
judge’s opinion should be a balance of public opinion.” (256).
 Therefore the majority concluded, that for the purpose of registering a marriage
only a ceremony is necessary, and that questioning the validity of a marriage certificate is
not the roll of the clerk of the registry, and evidence that an appropriate marriage
ceremony was conducted is sufficient for the purposes of registration. It is worth noting
that Judges Vitkin and Baranzon left the matter of the validity of civil marriages open,
while judge Zussman asserted with conviction that these would not be valid. That being
said, we can see that the court based its decision on the uncertainty regarding the validity
of the marriage (an uncertainty that is absent from our case), and emphasized the need for
a measure that “balanced all opinions held by the public”. I won’t stop myself from
saying that I doubt judge Zussman’s claims that the population of Israel was divided into
two dichotomous camps consisting of supporters of civil and religious rules of law. On
this matter I will only note that there are many citizens of Israel who care about both
religious and secular [civil] laws.

f. (former) judge Zilberg, in his dissent, opined that the marriage in that case [the
Shlezinger case], between a Jew and a Christian would not be valid in the state of Israel;
therefore, if the clerk of the registry “is convinced that the man is not married, he should
not write something that is, in his opinion, clearly untrue. Since the census questionnaire
asks as to the legal personal status of the individual, and not whether he went through
some ceremony or another. ” (239, emphasis in original, See also Zilberg’s article from
1941 “a modern issue in marriage law” where he noted that according to Israeli mandate
law, “a marriage between a Jew and a non-Jew are not valid in Israel” (230)). Judge
Zilberg, who was not ignorant to practical and personal needs, recommended a solution
to the Funk Shlezinger case as well, that he believed “would remove the sting from the
decision for both parties”, and that would be the addition of the words “in a civil
ceremony” or “in a religious ceremony” after the words “married” in the documents of
the registry. This would have required legislation which did not occur.

g. Ask whom you will, though for practical purposes the time of asking is passed –
whether from the beginning there was need for the Funk Shlezinger decision, or whether
judge Zilberg was right, meaning that it is the legislature’s job to find a bridge to
overcome the problem of Israelis who were married abroad. However, it is possible to
claim from the majority opinion of Zussman that for forty three years both types of
marriages have coexisted, and that the decision may have prevented difficult and
unhealthy public arguments. This argument is not unimportant, both in the Funk
Shlezinger case and in similar cases, even for those who wish to overturn Funk
Shlezinger. And more so, the legislature is not quick in producing solution to other
marriage related problems, for instance the problem of those who are permitted to return
to Israel, but who are not Jews; and this problem has increased recently, especially with
the bringing of many individuals from the former Soviet Union, whom are not recognized
as Jewish by religious laws (children and grandchildren of [male] Jews, and their
spouses), questions regarding their marriage prospects have been raised. This question is
not at all trivial, resulting in discussion about laws such as a civil union law (See S.
Lipshitz, “registering couplehood”, Menashe hasheava (edited by A. Barak and D.
Friedman, 2006). 361). The legislature has yet to give his opinion on these and similar
issues, and in the general question of how to solve the problem of marriage without
harming religious marriage laws. And indeed, are there no limits to the Funk Shlezinger
decision? We are dealing with the case of same sex marriage – a legal structure which
there is no doubt did not exist in the past, and which has been created as part of changes
in parts of society. Is it not the duty of the legislature to address this issue? In my opinion
the answer is that it is indeed his duty; and if the legislature should decide in one way, or
even if he were not to determine any opinion, the implication of that is that that is what
he [the legislature] wanted.

h. At the conclusion of our discussion of the Funk Shlezinger case, I think it is worth
bringing the words of judge Tirkel in the case of Yaruis Chakak “there are cases when a
decision leaves its original moorings, in order to travel the world, into areas where no one
had expected that the decision would travel to. In my opinion an example of such a
decision can be seen in the Funk Shlezinger case. See also Judge Shava’s call in the
Berner-Kadish case “the Supreme Court should reexamine its decision in Funk
Shlezinger, especially after its application in the Goldstein case, beyond all proportions…
in the supreme court” (M. Shava, “registering and recognizing of adoption in same sex
households”, 103).

On the registry

i. One way or another, the Funk Shlezinger decision has embedded in the “legal
mind” the concept that the registry is only a statistical tool. I will repeat and say that is
not the case; the registry is the “gate of entry” to legal recognition in Israel. Before an
Israeli couple who present a registration form, the average Israeli does not know to
distinguish between “just registration” and legal status. But not only the average Israeli is
subject to this problem, but not long after the decision in the Shlezinger Case, (former)
Judge Landuy pointed it out:

“The statement… that the purpose of the [census] law is only the
collection of statistical information’ is clearly correct in and of itself, therefore the
total value of the registry should not be discounted to just adding another number
to a list. (Gurfinkel v. Minister of the Interior, 2048; Psaro (Goldstein) 712).

Several years later, Judge Landuy returned to this approach “and indeed, how is it
possible to ignore the significance of registration, from a social and political perspective,
that is as significant as the narrow technical implications… and it is possible to question,
if all of this is only a technical matter, why is the plaintiff so insistent… have “all of the
people erred” [biblical quote] in the matter of the importance of the registry” (Benjamin
Shalit v. Minister of the interior, 477, 526). President Agernet joined in this approach:

“I emphasize, that I am in agreement with my colleague, judge Landuy,

when he stated that this registration is of more than just technical value, but of
social and political significance as well, as evidenced by the discussion in the
Knesset, …. And by the interest that the case before us has produced in the
population at large. (598)
Furthermore Judge Agernet warned about the possibility of how what is now viewed as a
technical matter may be viewed in the future: “there is room to believe that this
characterization of the registry may over time… have an impact on other walks of life as
well”, true words. In the path first cleaved by these two legal giants vice president Alon
then stepped:

“Indeed, the registration of the nationality “Jewish” in the registry does

not have any practical validity regarding personal status… and since this is what
is claimed before us, what is the difference? But when the legislature determined
that nationality should be registered… we must not disparage its national and
public importance, and address it with the proper amount of respect. And the
petitions that come before us – and the intense deliberation that they involve –
will demonstrate ho important an issue we are dealing with.” (The Shas case,
736).

An in his footsteps followed judge Tal as well, dissenting from the Zussman opinion in
the Psaro (Goldstein) case, who included a long list of practical implications to
registration in the census registry, but addressed public implications as well:

“The approach of purely statistical registration ignores reality … the

nations authorities and citizens are not the only ones who rely on census
information, but even the legislature himself gave the census registry a position
above simple statistical information collector…
And the question: why register them as “married” in the registry … when,
as we have seen, the marriage has no local legal validity…
There is also public significance to being registered as a Jew in the
registry, beyond “Statistical” significance, since the public does not recognize the
difference between registration for registration’s sake, and registration for the
purposes of return.” (Psaro (Goldstein) case, 705-708).

For this reason, Judge Tal determined that “I cannot agree with the conclusion
that registration is for the purpose of registration alone”. In this path continued judge
Engelrad, who declared that all significant elements hidden within registration are a
symbol, and on the debate is over that symbol:

And if indeed we are only talking about an insignificant statistic, why do

the arguments about registration continue? Why the legal decisions spread across
many pages, with dissenting judges? The truth is, of course, that the symbol is
also the substance, and without a certain world view, there is no decision in the
matter of registration, and there is no statistic” (naamat, 756, emphasis added).

We find therefore that the registry is not just a simple statistic, and that it has
practical and social implications for the public, different authorities and the legislature. It
seems that in recent years the registry is mostly a legal battle field, where individual
battle over symbols. That is what the above mentioned petitions dealt with, and that is
what our petition is dealing with. Is the decision – in fact – in the matter of symbols
rightly a judicial decision? And should this decision be made out of hand, through the
registry and the continued expansion of the Funk Shlezinger decision?

j. And if someone were to ask, what is the difference between same sex marriage
and civil marriages, that are not recognized in Israel either, but are recognized under
Funk Shlezinger, without anyone saying a word. The answer is not difficult: civil law is
an institution recognized in many countries, and there is no way to avoid registering
them, even if we acknowledge that the census registry is more than just a collection of
statistical information. This is not the same for same sex couples: here the clerk of the
registry will be able to plainly see that what is before him is a new legal paradigm, one
which “our forefathers did not anticipate”, and which was not recognized outside of a
small group of nations in the world, approximately six out of over one hundred and
ninety, approximately three percent. If that is the case should the Israeli court, due to
some special characteristic, be an advance guard before the legislature? Is this not, for the
average clerk, a case where he can say that “there is an apparent falsehood, beyond a
reasonable doubt” (Judge Zussman in the Funk Shlezinger case, 243), and that therefore
the matter should be dealt with by the legislature? Furthermore, is the registration of such
a couple “a balancing of public views” which judge Zussman mentioned?

On the petitioners and the courts

k. I wish to distinguish between humane treatment of the petitioners, to which they

are surely deserving, and humane treatment under the basic law; respect for man and his
liberty, and whose private life is their own business. As both petitioners and the state
have noted, during the past decade the legislature and courts have determined financial,
social and humanitarian rights to same sex couples, and my colleague the (former)
president has noted major developments in this area. In this context, civil and judicial
authorities are called to treat same sex couples equally on the economic dimension.

l. This petition does not deal with the law’s treatment of same sex couples v.
married couples off different sexes. In my view the petition does not deal with preserving
the rights of petitioners as individuals or citizens, who have a right to equal treatment. As
was mentioned previously, in this realm the court has ruled consistently, time after time,
in favor of upholding these rights. Indeed, in the beginning of the eighties, (former)
president Barak stated “it is simple that if two men or two women come before the court,
and ask to confirm an agreement over finances between them, the court will not confirm
this agreement, since petitioners are not a couple.” (Chanan Cohen and bro. v. general
council to the gov’t., 689). We have passed a long road since then, and all things related
to recognizing social and economic rights have been expanded, in the context of the
values of equality and respect.

m. It seems like this path had begun with this court’s ruling in the Danilovitch case, (El
Al v. Danilovich, 749), and continuing in other cases mentioned by the (former) president
in his opinion; but its central tenets are in the implementations of the decisions coming
down from this court on a daily basis. As the president mentioned, in 2004 the family
courts reversed his decision in the Chanan Cohen case, and recognized two men as a
couple for the purposes of family law (in the matter of confirming financial arrangements
see R.A. v. L.M. unpublished), judge Rothshield; Tel aviv court, (K. T. v. state of Israel,
general council to the gov’t (unpublished), judge granit; temporary restraining orders for
violence in the family see (Haifa court) anon. v. anon (unpublished) judge globinsky.
Honesty requires that I state that a contradicting opinion also exists, (tel aviv court) anon.
v. general council to the gov’t (unpublished), judge Geifman; however it is clear that
things that were once obvious are now at least controversial). Other authorities have also
recognized this right to equality, and there appears to be more responsiveness to
complaints made by same sex couples on all levels (for a detailed survey see paragraph
41 of petition).

n. To my question the respondent’s attorney noted that there are additional rights
which are denied petitioners, and turned to the third paragraph of the new evidence law
(1971), which states that in a criminal case an individual cannot be compelled to testify
against his or her spouse, or someone who is accused along with his spouse in the same
indictment”. Without digressing too much, I will note that judicial debate has expanded
this qualification to non-married individuals known to be part of a couple in public. (See
e.g. (Beer Sheva Court) Israel v. Muyal, (unpublished); Israel v. Bchrawi varda
(unpublished), vice president Pizem, and judges Rezi and Shif), and from there it seems
that the path is short. It seems that every case is examined individually, to ensure that no
substantive right is being harmed, yet the case of registration deals with a symbol, and
not with a substantive right. It seems to me therefore that we can separate between cases
which have a direct impact on individual citizens, and for which they have a right to
equal treatment and respect, and to cases which have a public / symbolic component, that
is mostly outside of the immediate practical realm. It should also be noted that granting a
right is related to recognizing standing, in essence – which is not what this petition
requested, and which the registry does not provide any evidence of (part 3 of the Census
Law).

o. Indeed, my colleagues remain true to their understanding of the Funk Shlezinger

decision; but even for those who support this approach, are we now faced with a “Funk
Shlezingeresque” case, and can the registration of civil marriage, an accepted practice in
many countries, be compared to the registration of same sex marriage – a practice
recognized in a small number of countries? In my humble opinion the answer is no. In
my view the state was correct in its assertion, that it is not up to the court to decide this
issue, but rather the legislature should convene, discuss, and come to a decision.

On the Trust of the Public

p. In my view this court should also address the question of how much it is distancing
itself from a social consensus, which my colleagues and the petitioners concede is lacking
from this case, and that it is difficult to speak to a “balancing of public opinion”. The
faith of the public is often mentioned as a necessary condition for the functioning of a
judicial system. This means that in matters involving deep social controversy, the court
will carefully consider whether it wishes to enter the discussion – and on occasion the
answer will be positive, and on other occasions negative. In my view the difference is as
to how much basic human rights are REALLY being affected, in the matter of the
registry, with a balancing of factors taken into account. As I mentioned previously, there
is no harm in the case at hand beyond a symbolic one; socio-economic considerations
have been settled to a reasonably extent, and what remains is probably negligible, and
will probably be taken care of in the near future.

q. The trust of the public, according to Barak’s many important books, is expressed
“not by giving in to the publics every whim, but rather by expressing the public’s
underlying ideals” (A judge in a democratic state, 50 see also Yarus-Chakak case, 117),
since “when a judge must balance different things according to their separate weights, he
will strive to do so according to what he views are the fundamental ideals of society.”
(Judicial deliberation, 188). In another place this question was presented in a clear
manner by professor Barak, with an answer beside it:

“Is the judge required to apply his (authority / deliberation) in a way so

that the norm resulting from this process (whether it is in the form of statutory
interpretation, or in another form), will also enjoy public consent?...

In my opinion, the judge must take into account the degree of

social consensus to the social values and legal norms derived from them. The
judge should strive to reach a solution within the social consensus, or at least one
that does not go against it. In my view it is best to avoid taking a position that is in
stark contrast to the public’s basic ideals… the rationale for this assertion lies in
basic democratic considerations, in the idea of separation of powers, and the need
to ensure the public’s trust… an action going against public consensus will in
the long run harm the public’s trust in judicial institutions, and in their ability ot
function” (Judicial deliberation, 289-290, emphasis added, see also Yossef Ben
menashe v. minister of religious affairs).

Although the meaning of public trust is not “populism and leaning towards the public’s
whims. The public trust does not mean deciding according to polls. Indeed the meaning
of the word’s public trust is that a judge decides according to just and legal principles.”
(Deri v. the state of Israel). The court is not captive to polls, and does not derive its
existence from them, but it is worth examining the matter not only from the perspective
of individual justice to the petitioners, but also from the perspective of “public justice”,
which I view as searching for a common denominator within Israeli society, and avoiding
divisiveness. There is no doubt that social circumstances can change, something which
has occurred in a significant way in the matter of homosexual relationships (see “Judge in
a democratic society”, 60; El Al v. Danilevitch, 749, 781-782). The court has done its part
in preventing discrimination in the socio-economic realm, which have been decided
nearly completely to the preferences of the plaintiffs, but is there not a point beyond
which the need to act in the context of the public’s trust, and within the framework of a
broad common denominator will bring the court to say – my job stops here, and from
here onwards the legislature should speak on these enormously controversial matters?

The Role of the Court

r. Indeed, the recognition of socio-economic rights can be viewed as a basic value of
human decency, with no real opposing value. Registration in the census, on the other
hand, can be viewed as a public declaration towards the whole world regarding a
controversial matter of status, which should be determined by the legislature.
Furthermore, one can say, since socio-economic issues have already been recognized,
what difference does it make if they are accompanied by registration. Yet if we admit the
truth, that registration does not come only for statistical purposes, as was claimed in the
Funk Shlezinger case, since even if the registration itself carries no legal weight, it is an
important symbol. A people live within its symbols, and if this were not the case, the law
and custom would not attribute such importance to the matter, and furthermore,
petitioners would not be fighting so hard in this case. Judge Zoabi has already mentioned
in the Berner-Kadish case (384), that “in fact the petitioners are not looking for a simple
registration, but rather a de-facto recognition of the adoption”. I believe that (former)
judge Cheshin expressed these sentiments well, in a minority opinion in a different
context:

“The true issue before us is not in the matter of naming a street in Arabic
by local authorities. The matter is at the center of its meaning – the cultural and
national rights of Israeli Arabs. These rights, to the best of my understanding, go
beyond the rights of individuals recognized in Israel… and the nature of these
matters is such that the court room is not the appropriate venue to determine them.
Given that the political body – and at its head, the Knesset, has not recognized the
type of rights petitioners are seeking.” (Adala v. Tel Aviv Yafo municipality, 393).

s. My colleague the president disputes nearly every portion of respondent’s

position. With due respect, I disagree. Similar to the legal council to the government’s
position, I believe that the matter should be determined by the legislature. The words of
(former) judge Cheshin in the YArus-Chakak case are appropriate here “The court is not
designed to be a forerunner for the legislature, nor is he required to be a guide. The
judiciary in its essence, has not been qualified to breach new social grounds.” (135) and
the words of my colleague the president in his book “A Judge in a Democratic State” “As
a rule a judge should not be the flag barer of new social paradigms. He should recognize
such paradigms that exist, not create new ones” (Judge in a Democratic State 47; Yarus-
Chakak case, 117). I myself believe that as long as individual rights are on the table, the
court will often find itself breaking new ground, similarly in matters of establishing
norms in the public sector; but not in matters pertaining to groups, and related to social
beliefs and opinions. In these matters I agree with judge Matza’s views in the Yarus-
Chakak case “if it were desirable that this court should make the primary determination
in socially sensitive matters, whose issue at hand is granting status to same sex couples.
To this question, in my opinion, we must answer no. The principal of separation of
powers, and the sensitive nature of the case before us requires that we act in restraint”
(79, emphasis in the original).

t. In the context of the executor, judge Barak stated that “there are specific
instances, in matters that divide the nation, on which the executor does nto have the right
to decide. There are such instances where these determinations must be made in the
Knesset, with the executor simply executing them.” (Rubinestein v. Minister of Defense,
523) the President will say I am but dealing with a registry, a preliminary determination
will be made by the legislature. But in my view, in the case at hand registration is a
significant portion of the decision, and should therefore be left in the hands of the
legislature.

Something on Comparative Law

u. This court is not the first faced with the question of recognizing a foreign
marriage of a same sex couple. Similar questions were faced by a number of U.S. courts
in different states, in the context of a continuing public battle. Although the matters were
related to the actual recognition of marriage, I believe that our case exceeds mere
statistical registration [towards actual recognition]. There also the line between the
judiciary and legislature is questioned. Indeed, in most states in the U.S. there are
constitutional arrangements that preclude recognizing same sex marriages conducted in
foreign countries; Defense of Marriage Act (DOMA); for a review of these laws, see the
appendix to A. Koppelman, “Recognition and Enforcement of Same Sex Marriage” 153
U. Pa. Law Rev. 2143, 2165 (2005), the constitutionality of DOMA laws have stood
constitutional tests on a number of occasions, though a Supreme Court ruling is still
lacking, however, there are states without a constitutional arrangement, such as New
Jersey, where a similar case, dealing with a Canadian marriage, was brought.

v. In the Hennefeld case, the New Jersey Court refused to recognize a marriage
conducted in Canada, and it was determined that “this court finds that marriage laws of
Canada which recognize same sex marriage are not consistent with those of New Jersey
which do not recognize same sex marriage… Accordingly, the plaintiff’s same sex
marriage cannot be afforded comity in New Jersey” Hennefeld v. Township of Montclair,
22 NJ Tax 166 (2005). Canadian marriages were not recognized in states with DOMA
laws, see In re Kandu, 315 B.R. 123 this decision was based on a previous decision
holding that the states constitutions does not require recognition of same sex marriage
(Lewis v. Harris, 378 N.J. Super. 168). In that case the court addressed the question of the
place in society of the right of same sex couples to marriage:

“This constitutional provision does not give a court the license to create a
new constitutional right to same-sex marriage simply because its members feel
that the state should grant same-sex couples the same form of recognition as
opposite-sex couples who chose to marry… there is no basis for concluding that
our society now accepts the view that there is no essential difference between a
traditional marriage between a man and a woman and a marriage between
members of the same sex” (emphasis added).

No one disputes, even in New Jersey, that same sex couples must be afforded the same
substantive rights that opposite-sex couples receive (for this purpose the state has
legislated a Domestic Partnership act), however the manner, or the “structure” which
society chooses to deal with the problem – for instance in the form of a marriage, a civil
agreement, or in another manner – is viewed as an issue that should be determined by the
legislature, and not the courts.

w. After these words were written, the New Jersey court has recently held (25.10.06)
that same-sex couples have, under the constitution, the same rights afforded to opposite-
sex couples, but the “name” or structure with these rights take is left to the legislature to
determine (Lewis v, Harris, N.J. Lexis 1521, 2006). The Court has determined that it is
not possible to remove from the word “marriage” various social connotations, and that
therefore the legislature must determine if it should be used in the context of same-sex
couples:

“Raised here is the perplexing question - what’s in a name? – and is a

name itself of constitutional magnitude, after the state is required to provide full
statutory rights to same sex couples? We are mindful that in the cultural clash
over same sex marriage, the word marriage itself – independent of the rights and
benefits of marriage – has an evocative and important meaning to both parties.
Under our equal protection jurisprudence, however, plaintiffs’ claimed right to the
name marriage is surely not the same now that equal rights and benefits must be
conferred on committed same sex couples… The Legislature is free to break from
historical traditions that have limited the definition of marriage to heterosexual
couples, or to frame a civil union style structure, as Vermont and Connecticut
have done”.

In matters related to the question of the structure-symbol, the court has held that public
discourse, in the form of legislative decision making, should have its say. The Court
noted that traditionally, throughout generations, the word marriage referred only to a
relationship between a man and a woman, therefore:

“To alter the meaning would render a profound change in the public
consciousness of a social institution of ancient origin. When such changed is not
compelled by a constitutional imperative, it must come about through civil
dialogue and reasoned discourse, and the considered judgment of the people in
whom we place ultimate trust in our republican form of government”.

When explaining this matter, which requires granting the decision making power in the
structure-symbol matter to the legislature, the court addresses the same consideration I
addressed above, and that is the need to act within the framework of the public’s trust:

“Some may think that this Court should not settle the matter, insulating
itself from the public discussion and the political process. Nevertheless, a court
must discern not only the limits of its own authority, but also when to exercise
forbearance ,recognizing that the legitimacy of its decisions rests on reason, not
power”.

All seven members of the court there supported the concept that same-sex couples should
not be deprived of substantive rights afforded to opposite-sex couples. A minority of
three judges did not distinguish between these rights and the right to the Title of
Marriage. Even this opinion required a symbol – use of the term “marriage” and
determined that there is no cause to deprive petitioners of its use, for fear that the
commitment between a same-sex couple will be viewed as weaker than a commitment
between opposite-sex couples, and held further that such labels would perpetuate
preconceptions. However, as we can see, the majority determined to remove the debate to
the legislature.

x. The Supreme Court of N.Y., another state lacking in DOMA laws, determined
that the question of registering same sex couples should be left to the legislature. Basing
its decision on the Hennefeld decision in N.J. (amongst other concerns), the N.Y. court
held:

“The role of the courts is to “recognize the rights supported by the

Constitution and history, but the power to create novel rights is reserved to the
people through the democratic and legislative processes”…Deprivation of
legislative authority, by judicial fiat, to make important, controversial policy
decisions prolongs divisiveness and defers settlement of the issue; it is a
miscarriage of the political process involved in considering such a policy
change… Judicial intervention is warranted only where the legislature has placed
an unreasonable restriction on access to the legislatively defined right.”

(See also Samuels v. New York State Dept. of Health, 811 N.Y.S. 2d 136, Seymour v.
Holcomb, 790 N.Y.S. 2d 858 (2005))

Conclusion

y. In summary: my colleague the president, similarly to petitioners, does not agree

with respondent that Israel does not have an appropriate legal structure to accommodate
same sex marriage, to his approach the idea of a legal structure is a new concept, that has
no appropriate measure, and that there is no difference between registering same-sex
marriage and same-sex adoption, as was decided in the Berner-Kadish case. Indeed, my
decision in that matter is similar to the decision of judge Zoabi. I do not believe that
granting same-sex couples the socio-economic rights, in the context of social and legal
fairness, constitutes a recognition of a legal structure similar to the registration of a
marriage. There is a dividing line between the two, requiring legislative attention; the
dividing line is that symbol, that value judgment, which requires that the legislature
determine the issue at the end of the day, and registration is, after all, an official
recognition by the authorities to establish a family cell, recognized in only a small
minority of countries in the world. Therefore had my opinion been heard, we would not
have responded positively to the petitions.

Judge.
It is determined by a majority of opinions, and under the dissent of judge A. Rubinstein,
to accept the petitions and create a permanent ruling, as stated in the decision of Judge A.
Barak. Respondent must register petitioners as married in section 2(a)(7) of the registry.

Held today, (11.21.2006)

Signed by the majority