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A Basic Right to Marry: Israeli Style

Published online by Cambridge University Press:  02 October 2014

Ayelet Blecher-Prigat
Ayelet Blecher-Prigat*
Affiliation:
Senior Lecturer, Sha'arei Mishpat Academic Center, Israel. JSD Columbia Law School, LLM Columbia Law School, LLB Tel Aviv University Law Faculty; ayeletb@mishpat.ac.il.
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Abstract

This article questions the value of the basic right to marry that was recognised by the Israeli Supreme Court in the early 2000s as part of the basic right to human dignity. Since its early days, Israeli law has developed a tradition that has diminished the significance of formal marriage as a way to bypass the religious-based restrictions on marriage in Israel, with the emphasis instead on the idea of functional joint intimate lives.

Against this legal background, the article explores the basic right to marry. It discusses and analyses the Supreme Court cases that have recognised a basic right to marry. It then considers several options to help in understanding the meaning of this right, and supports an understanding of the right to marry within a framework of equality, according to which human dignity requires equality in affording official recognition to intimate partnerships. Nonetheless, given the potentially limited effect of a basic right to marry in Israel, the article considers the idea of abolishing legal marriage in Israel altogether. Responding to potential critique by reference to the unique Israeli context, it suggests that such abolition could resolve the continuous conflict between Israel's self-definition as a Jewish state and its self-definition as a democratic state in the context of recognising adult intimate relationships. As presented in this article, constitutional limitations do not stand in the way for the State of Israel to abolish legal marriage.

Keywords

right to marryhuman dignityequality
Type
Articles
Information
Israel Law Review , Volume 47 , Issue 3 , November 2014 , pp. 433 - 460
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2014 

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References

1 Israeli jurisprudence uses the term ‘basic right’. It is the equivalent of the term ‘constitutional right’ used in other jurisdictions.

2 A right to marry is recognised by a number of respected international human rights sources. See, for example, Universal Declaration of Human Rights, UNGA Res 217A(III), 10 December 1948, UN Doc A/810 (1948), art 16 (‘Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family’); International Covenant on Civil and Political Rights (entered into force 23 March 1976) 999 UNTS 171, art 23(2) (‘The right of men and women of marriageable age to marry and to found a family shall be recognised’).

3 Israel recognises a number of religious communities, the list of which appears in The Palestine Order in Council 1922, supp 2. The Israeli government has the authority to add religious communities to the list, although it has exercised this authority in only two cases: see Rosen-Zvi, Ariel, ‘Family Law and Inheritance’ in Shapira, Amos and DeWitt, Keren C (eds), Introduction to the Law of Israel (Kluwer Law International 1995) 75Google Scholar, 76.

4 Thus, for example, individuals who do not belong to a recognised religious community are unable to marry in the State of Israel. Similarly, two individuals who belong to different religious communities are often unable to marry in Israel, since most of the Israeli religious communities do not recognise mixed marriages. An exception to this rule of thumb is the recognition under Sharia law of a marriage between a Muslim man and a Jewish or Christian woman (but not between a Muslim woman and a non-Muslim man). Aside from restrictions on inter-religious marriages, religion-specific restrictions on intra-religious marriages may also apply; for instance, according to Jewish law, members of the Jewish priestly cast (‘Cohanim’) may not marry a divorcee: Elon, Menachem, The Principles of Jewish Law (Encyclopaedia Judaica 1975) 361Google Scholar.

5 A mirror image is the diminished significance of legal divorce. Under Israeli law, individuals may divide the property accumulated during their marriage prior to formal divorce, including the sale of the marital home. New relationships formed by either spouse while still formally married are recognised and generate rights and obligations under the civil laws of cohabitants: see Blecher-Prigat, Ayelet and Shmueli, Benjamin, ‘The Interplay between Tort Law and Religious Family Law: The Israeli Case’ (2009) 26 Arizona Journal of International & Comparative Law 279, 299Google Scholar.

6 See discussion in text accompanying nn 50–58.

7 HCJ 143/62 Funk-Shlezinger v Minister of the Interior 1963 PD 17(1) 225; HCJ 3045/05 Ben-Ari v Director of Population Administration, Ministry of the Interior 2006(4), official translation at http://elyon1.court.gov.il/files_eng/05/450/030/a09/05030450.a09.htm. Formally, the Population Registry merely collects statistical information; its records do not have evidential force as to the veracity of the data they contain, especially with regard to marital status (Population Registry Law, 1964–65, s 3). In practice, however, registration has broader practical implications, bestowing upon registered couples the legal benefits and burdens of formally married couples. See also discussion in text accompanying nn 85–86.

8 See discussion in text accompanying nn 44–45.

9 Basic Law: Human Dignity and Liberty, 1992.

10 Basic Law: Freedom of Occupation, 1992, repealed by Basic Law: Freedom of Occupation, 1994. Israel has no constitution per se. A series of Basic Laws to protect individual rights and address other matters that are normally addressed in a constitution were passed as a compromise measure. Basic Laws are in effect Israel's ‘operational constitution’.

11 CA 6821/93 United Mizrahi Bank Ltd v Migdal Cooperative Village 1995 PD 49(4) 221.

12 Dotan, Yoav, ‘The Spillover Effect of Bills of Rights: A Comparative Assessment of the Impact of Bills of Rights in Canada and Israel’ (2005) 53 American Journal of Comparative Law 293CrossRefGoogle Scholar, 304; Sapir, Gidon, ‘Religion and State in Israel: The Case for Reevaluation and Constitutional Entrenchment’ (1999) 22 Hastings Internationa1& Comparative Law Review 617Google Scholar, 638.

13 Art 10 of the Basic Law: Human Dignity and Liberty (n 9) (entitled ‘Validity of Laws’) states: ‘This Basic Law shall not affect the validity of any law (din) in force prior to the commencement of the Basic Law.’

14 Another possible explanation is the backlash that followed the first attempt to limit the use of religious laws in family matters according to human rights principles. Soon after the enactment of the Basic Laws, Justice Barak handed down the famous decision in HCJ 1000/92 Bavli v The High Rabbinical Court 1994 PD 48(2) 221. In Bavli, the Court held that religious courts, including the rabbinical courts, must apply civil norms and principles in matters that are not considered ‘matters of personal status’ and are not governed by religious personal law. The Court therefore instructed the rabbinical courts to apply the principle of equal division of marital property rather than divide property in accordance with Jewish law. This first attempt to intervene in religious family law did not concern the very heart of family law – marriage and divorce – but only issues such as property division, which are not considered ‘matters of personal status’. Nevertheless, some religious courts simply refused to follow the Supreme Court's ruling, and others tended to bypass their obligation to apply the civil law of equal division: Raday, Frances, ‘Gender and Religion: Secular Constitutionalism Vindicated’ (2009) 30 Cardozo Law Review 2769Google Scholar, 2786; Shetreet, Shimon, ‘Resolving the Controversy over the Form and Legitimacy of Constitutional Adjudication in Israel: A Blueprint for Redefining the Role of the Supreme Court and the Knesset’ (2003) 77 Tulane Law Review 659, 687Google Scholar; Cohn, Margit, ‘Women, Religious Courts and Religious Law in Israel – The Jewish Case’ (2004) 27 Retfaerd (Scandinavian Journal of Social Sciences) 55, 70–73Google Scholar.

15 An exception that has received attention in academic writing is the attitude of Judge Oded Alyagon in two family law cases dealing with divorce between two interfaith couples, declaring that the law that governs divorce in these cases should conform with the demands of Basic Law: Human Dignity and Liberty: Halperin-Kaddari, Ruth, ‘Towards Concluding Civil Family Law – Israel Style’ (2001) 17 Mehkarei Mishpat 105, 138–42Google Scholar (in Hebrew). When dealing with intrafaith couples, divorce is not governed by religious laws. Despite this differentiation between interfaith and intrafaith couples in matters of divorce, Judge Alyagon's reference to the Basic Law in his rulings is still considered an exception.

16 In addition, in the context of divorce, the right of each individual to end a marriage was recognised as part of the right to human dignity, supporting the recognition of a tortious claim against Jewish men and women who refuse to grant or receive the Get (the Jewish contract of divorce): see FamC (Jer) 21161/07 X v Y (2001).

17 HCJ 7052/03 Adalah v Minister of Interior Affairs 2006 PD 61(2) 202.

18 Certain age groups were exempted from the Law's blanket prohibition; however, this is insignificant for the purposes of this article.

19 HCJ 3648/97 Stamka v Minister of Interior 1999 PD 53(2) 728.

20 The policy, which had been in effect since 1995, required the non-Jewish foreign spouse to leave Israel for several months during which period the Ministry of Interior would determine whether the marriage was genuine. Only after the Ministry of the Interior had determined the authenticity of the marriage could the non-Jewish spouse return to Israel in order to begin the naturalisation process.

21 Basic Law: Human Dignity and Liberty (n 9) art 8, which states: ‘There shall be no violation of rights under this Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required, or by regulation enacted by virtue of express authorization in such law.’ President Barak and Justices Beinisch, Joubran, Hayut, Procaccia and Levy found that the Citizenship and Entry into Israel Law failed to meet the last condition of the limitation clause, which required that any violation of constitutional rights should not be excessive. The other five justices found either that there was no violation of basic rights or that the Law's violation of basic rights meets the above described proportionality test, and thus conforms with the conditions of the limitation clause and is valid.

22 Adalah (n 17) President Barak, Vice-President Cheshin and Justices Beinisch, Joubran, Rivlin and Levy. In addition, Justice Hayut concurred with President Barak's opinion and analysis.

23 ibid, President Barak, para 42. Note that Barak refers to freedom to marry as a right to marry.

24 HCJ 466/07 Gal-On v Attorney General (decision of 11 January 2012). The amendment expanded the scope of the law to apply to citizens or residents of Iran, Iraq, Syria, Lebanon or any other ‘area in which operations that constitute a threat to the State of Israel are being carried out’.

25 ibid, Justices Grunis, Naor, Rubinstein, Hendel and Meltzer.

26 HCJ 2232/03 X v Regional Rabbinical Court, Tel Aviv 2005 PD 61(3) 496 (Noahides Case). Family law cases have been brought anonymously in Israel since 1996. As such, a name should be given to each anonymously brought case to enable it to be distinguished from other cases. This case is known in the Israeli legal community as ‘the Noahides Case’ because the Court's judgment endorsed the High Rabbinical Court's judgment in this matter and its position on civil marriage. The High Rabbinical Court stated that the Jewish law, the Halakha, contains rules that apply to non-Jews, Noahides (B'nei Noach in Hebrew, translated as the Children of Noah), and they also refer to marriage and divorce. Noahide Laws refer to the seven laws of Noah, given by God to all mankind. Although Jewish law does not recognise a civil ceremony of marriage as creating a valid Jewish marital bond, the Noahide rules recognise civil marriage at least for limited purposes, even if it was performed between a Jewish man and a Jewish woman.

27 Starting with Funk-Shlezinger (n 7).

28 See HCJ 51/80 Cohen v Rabbinical High Court of Appeals 1980 PD 35(2) 8. The then President of the Court, President Landau, created a special panel of seven justices with the intention of resolving, among other matters, the question of the validity of a foreign marriage in Israel. At that time, when the Israeli Supreme Court sat in an extended panel, it was usually with five justices. President Landau explained his unusual decision to expand the panel in Cohen by the need to resolve a significant question of great importance. However, he declared that in retrospect the question of the validity of the marriage did not arise: Cohen, ibid 10.

29 CA 8256/99 X v Y 2004 PD 58(2) 213.

30 ibid, President Barak, paras 24–26, 44.

31 When both spouses belong to the same recognised religion, the relevant religious court should allegedly have jurisdiction over divorce proceedings between the spouses, as matters of marriage and divorce are under the exclusive jurisdiction of the religious courts in Israel. Nevertheless, in the past, some have raised doubts regarding the jurisdiction of the rabbinical courts in dissolving civil marriages entered into abroad between Jewish spouses: Maoz, Asher, ‘The Extra-Territorial Jurisdiction of the Rabbinical Courts’ (1988) 38 Hapraklit 81Google Scholar (in Hebrew).

32 This approach relies on the following line of reasoning. Art 47 of the Order in Council, which determines the application of personal law to the question of personal status (which marriage and divorce stand at the core of), is part of Israeli private international law and establishes an entire arrangement. The applicability of this article does not depend on the nationality of the relevant parties, or on national character, in any way. Thus, wherever the parties were married, regardless of their nationality, the validity of their marriage in Israeli courts is to be determined according to their personal law (whereas the personal law of Israeli citizens and residents is their religious law, the personal law of non-resident foreign citizens is their law of nationality: Palestinian Order in Council, art 64(2)). This approach is identified with Justice Agranat's approach in CA 191/51 Skornik v Skornik 1954 PD 8 141 and with Professor Menashe Shava's approach: Shava, Menashe, ‘Civil Marriage Celebrated Abroad: Validity in Israel’ (1989) 9 Tel Aviv University Studies in Law 311Google Scholar.

33 This approach is based on the English rules of private international law, which were incorporated into Israeli law by virtue of art 46 of the Order in Council (ibid). This approach considers art 47 of the Order in Council to be part of Israel's internal municipal law. This approach was introduced by Justice Witkon in the Skornik case (n 32), as well as in the District Court of Jerusalem in CC (Jer) 2/85 Kleidman v Kleidman 1987(2) PM 377.

34 This approach is associated with Justice Zusman's approach in Funk-Shlezinger (n 7), advocating for the adoption of the American approach to private international law.

35 Noahides Case (n 26) President Barak, para 26.

36 ibid.

37 FA 9607/03 X v Y (2006) (Inheritance Case).

38 ibid, President Barak, para 23.

39 ibid.

40 Succession Law, 1965, s 55.

41 Inheritance Case (n 37) President Barak, para 9.

42 ibid para 13.

43 ibid para 23.

44 Loving v Virginia 388 US 1 (1967).

45 For US cases see Baker v State 744 A2d 864, 886 (Vt 1999); Baehr v Lewin 852 P2d 44, 59–60 (Haw 1993). For Germany see Scherpe, Jens M, ‘National Report: Germany’ (2011) 19 American University Journal of Gender, Social Policy & the Law 151Google Scholar, 152–53. For South Africa see du Toit, François, ‘National Report: The Republic of South Africa’ (2011) 19 American University Journal of Gender, Social Policy & the Law 277Google Scholar, 278–80. For a review of additional cases from various legal systems see Saez, Macarena, ‘Same-Sex Marriage, Same-Sex Cohabitation, and Same-Sex Families around the World: Why “Same” is so Different’ (2011) 19 American University Journal of Gender, Social Policy & the Law 1Google Scholar.

46 See CA 450/70 Rogozinsky v State of Israel 1971 PD 26(1) 129; CA 373/72 Tepper v State of Israel 1974 PD 28(2) 7. See also Merin, Yuval, ‘The Right to Family Life and Civil Marriage under International Law and Its Implementation in the State of Israel’ (2005) 28 Boston College International & Comparative Law Review 79Google Scholar, 144–45.

47 Shifman, Pinhas, ‘Marriage and Cohabitation in Israeli Law’ (1981) 16 Israel Law Review 439Google Scholar, 454.

48 See United States v Windsor 570 US ___ (2013); 133 S Ct 2675 (estate tax exemption that is given to a surviving spouse).

49 Adalah (n 17) President Barak, para 25.

50 For further discussion on the expansion of these rights, see Lifshitz, Shahar, ‘The External Rights of Cohabiting Couples in Israel’ (2003–04) 37 Israel Law Review 346.CrossRefGoogle Scholar

51 See Families of Soldiers Killed in Action (Payments and Rehabilitation) Law, 1950; Disabled Veterans of the War against the Nazis Law, 1954; Disabled Persons (Payments and Rehabilitation) Law, 1959 (Combined Version).

52 See CA 52/80 Shachar v Friedman PD 38(1) 443, holding that the then existing presumption of community property applicable to married couples should also be applied to unmarried cohabitants; CA 2000/97 Lindorn v Karnit 1999 PD 55(1) 12, interpreting the term ‘partner’ in the Civil Wrongs Ordinance (New Version) and the Road Accident Victims Compensation Law, 1975, to include unmarried cohabitants. Until Lindorn, the dominant view had been that statutes that do not expressly refer to cohabitants apply only to married couples. Lindorn opened the door to interpreting all statutes that address spousal rights to include unmarried cohabitants. The Court continued down this path in CA 2622/01 Manager of Land Betterment Tax v Levanon 2003 PD 37(5) 309, holding that tax exemptions for the transfer without remuneration of an asset other than a residential apartment from an individual to his partner should be applied equally to cohabiting and married couples.

53 See Rosen-Zvi, Ariel, ‘Israel: An Impasse’ (1990–91) 29 Journal of Family Law 379, 383Google Scholar; Shifman, Pinhas, ‘State Recognition of Religious Marriage: Symbols and Content’ (1986) 21 Israel Law Review 501Google Scholar. Thus, for example, the property relations of non-married cohabitants are governed by the case law-created presumption of community property, whereas couples who married after 1974 are subject to the Spouses Property Relations Law, which presents what many consider to be an inferior property rights regime. However, the reality is more complex, as the extent of the presumption of community property applicable to unmarried cohabitants is not equivalent to that applied to married couples: for example, while married couples' businesses are subject to the presumption of community property, the opposite is the case for unmarried couples: CA 4385/91 Salem v Karmi 1997 PD 51(1) 337.

54 For a criticism of depicting the issue as concerning the rights of the unmarried woman versus the rights of the married woman, and the patriarchal character of such a depiction, see Kamir, Orit, ‘What's in a Woman's Name’ (1996) 27 Mishpatim 327Google Scholar (in Hebrew).

55 HCJ 73/66 Zemulun v Minister of the Interior 1966 PD 20(4) 645; HCJ 243/71 Isaak (Schick) v Minister of the Interior 1972 PD 26(2) 33. In Israel changes to one's last name are regulated by the Names Law of 1956, which permits a person to change his or her last name on coming of age. A written notification of the change must be given to the Minister of the Interior, who may invalidate the name change if it is believed that the new name is likely to mislead, infringe public policy or offend the feelings of the public: Names Law, 1965, arts 10, 15, 16.

56 HCJ 693/91 Efrat v Commissioner of the Population Registry 1993 PD 47(1) 749.

57 Names Law (n 55) amendment 3.

58 HCJ 6086/94 Nizri v Commissioner of Population Registry 1996 PD 49(5) 693.

59 Hacker, Daphna, ‘Beyond “Old Maid” and “Sex and the City”: Singlehood as an Important Option for Women and Israeli Law's Attitude towards this Option’ (2005) 28 Tel Aviv University Law Review (Iyuney Mishpat) 903Google Scholar (in Hebrew).

60 Shifman (n 47) 455.

61 Evidence Ordinance (New Version), 1971, s 3, which provides: ‘In a criminal trial, one spouse is not competent to testify against the other, nor may one spouse be compelled to testify against a person who is charged together with the other in one indictment.’ It should be noted that trial courts have interpreted this section so as to extend the exemption and apply it to cohabitants as well: see CrimC (Hf) 477/02 State of Israel v Bachrawi (2004); CrimC (BS) 2190/01 State of Israel v Moyal (2004), although these rulings are not precedents and do not bind other courts.

62 In fact, in the Efrat case (n 56) 784, President Barak stated that maintaining a distinction between marriage and cohabitation is not part of Israeli public policy.

63 cf Sunstein, Cass R, ‘The Right to Marry’ (2005) 26 Cardozo Law Review 2081Google Scholar, 2092–93.

64 Until 2009 this was the case regarding IDF widows' pension benefits: see Shifman (n 47). In 2009, the Knesset amended the Families of Soldiers Killed in Action (Payments and Rehabilitation) Law by amendment no 30, so that remarried widows would not lose their pensions.

65 Lifshitz (n 50) 398–99.

66 See Karst, Kenneth L, ‘The Freedom of Intimate Association’ (1980) 89 Yale Law Journal 624, 629–37CrossRefGoogle Scholar.

67 ibid 629.

68 Adalah (n 17) President Barak, para 32 (citations omitted).

69 ibid, Justice Joubran, para 3. The official translation of the Court used the word ‘spouse’ instead of ‘partner’. Nonetheless, Justice Joubran used the Hebrew word ‘ben zug’, which is used to refer both to a spouse and to a ‘partner’, especially in the Israeli context.

70 ibid, Justice Procaccia, para 6.

71 ibid, President Barak, para 27.

72 Shifman (n 47) 441–45, 451–54.

73 Israeli jurisprudence has a number of cases in which couples sought recognition as being married and were not satisfied with the mere freedom to live together, or with having rights and benefits equivalent to married couples without official recognition of their marital status by the state: see Ben-Ari (n 7).

74 Karst (n 66) 647.

75 Justices Naor and Grunis sat in both cases. In Gal-On they were joined by Justices Hendel, Rubinstein and Meltzer.

76 See Gal-On (n 24) Justice Hendel, para 2; Justice Naor, para 9; Adalah (n 17) Vice-President Cheshin, paras 2, 48–57; Justice Procaccia, paras 4–5.

77 Waldron, Jeremy, ‘Homelessness and the Issue of Freedom’ (1991) 39 UCLA Law Review 295Google Scholar.

78 Sunstein (n 63) 2093.

79 Karst (n 66) 651.

80 Regan, Milton C Jr, ‘Calibrated Commitment: The Legal Treatment of Marriage and Cohabitation’ (2001) 76 Notre Dame Law Review 1435Google Scholar, 1445.

81 Karst (n 66) 651.

82 Noahides Case (n 26). In the case of civil marriage between two foreign citizens who later immigrated to Israel, where the marriage is valid according to the laws of their previous nationality and residency laws, then this marriage is valid under Israeli law: Skornik (n 32).

83 Funk-Shlezinger (n 7).

84 Ben-Ari (n 7).

85 Population Registry Law (n 7) s 3, which provides that some details registered in the Population Registry constitute prima facie evidence as to their veracity; however, the personal status of an individual is not one of them.

86 Halperin-Kaddari, Ruth, Women in Israel: A State of Their Own (University of Pennsylvania Press 2004) 244Google Scholar; Levontin, Eitan, ‘Figment of the Imagination: Funk-Schlezinger and Civil Registry Law’ (2008) 11 Mishpat Umimshal 125Google Scholar, 150.

87 In March 2010, the Israeli Knesset passed the Covenant Partnership Law, which provides a very limited option of civil partnership, restricted to Israeli opposite-sex couples in cases where both partners do not belong to a recognised religious community.

88 CA 7021/93 Bar-Nahor v Estate of Osterlitz 1994 PD 94(3) 1512.

89 Lifshitz, Shahar, ‘Married against Their Will? A Liberal Analysis of Cohabitation Law’ (2002) 25 Tel Aviv University Law Review 741Google Scholar, 803–08. I do not agree with Lifshitz's analysis of the Bar-Nahor case, which concerned the right to maintenance from the estate, which is mandatory and cannot be limited or waived by agreement. Had the court given effect to the parties' stipulation that they are not ‘reputed spouses’ in this context, it would have nullified the mandatory character of the right to maintenance from the estate.

90 Brown v Board of Education 347 US 483 (1954).

91 Sunstein (n 63) 2111–12.

92 Saez (n 45) 19–20.

93 ibid 22–23.

94 ibid 23–24.

95 The case law and academic literature on equality in Israel is extensive. See Zamir, Itzhak and Sobel, Moshe, ‘Equality before the Law’ (1999) 5 Mishpat Umimshal 165Google Scholar (in Hebrew); Raday, Frances, ‘On Equality’ (1994) 24 Mishpatim 241Google Scholar (in Hebrew).

96 As noted above, the omission of the right to equality from the Basic Law was intentional: see n 12 and accompanying text.

97 See Sommer, Hillel, ‘The Non-Enumerated Rights: On the Scope of the Constitutional Revolution’ (1997) 28 Mishpatim 257Google Scholar (in Hebrew); Karp, Yehudit, ‘Basic Law: Human Dignity and Freedom – A Biography of Power Struggles’ (1992) 1 Mishpat Umimshal 323, 347–51Google Scholar (in Hebrew); Rubinstein, Amnon and Medina, Barak, The Constitutional Law of the State of Israel, vol 1 (5th edn, Shoken 1997) 921Google Scholar (in Hebrew); Karp, Yehudit, ‘Several Questions on Human Dignity under the Basic Law: Human Dignity and Liberty’ (1995) 25 Mishpatim 129Google Scholar, 145 (in Hebrew); Dorner, Dalia, ‘Between Equality and Human Dignity’ in Shamgar Book, vol 1 (Israel Bar Association 2003) 9Google Scholar (in Hebrew).

98 HCJ 6427/02 Movement for Quality Government in Israel v Knesset (unpublished, 11 May 2006).

99 Adalah (n 17) President Barak, para 39.

100 President Barak and Justices Beinisch, Joubran, Hayut, Procaccia and Levy held that the Citizenship and Entry into Israel Law violated the constitutional right to equality because of the de facto ethnicity-nationality classification it makes. Since citizens of Palestinian origin are likely to marry Palestinians residing in the territories, the law effectively discriminated against them, as opposed to Jewish citizens. Another example that connects equality and human dignity based on the classification at issue is Justice Dorner's opinion in HCJ 4541/94 Miller v Minister of Defence 1995 PD 49(4), arguing that sex-based discrimination affronts human dignity, official translation at http://elyon1.court.gov.il/files_eng/94/410/045/Z01/94045410.z01.pdf.

101 Adalah (n 17) President Barak, para 40; Justice Procaccia, para 1.

102 It also affects the interpretation of existing laws: CC 537/95 Ganimat v State of Israel 1995 PD 49(3) 355, 412–21.

103 Cain, Patricia A, ‘Imagine There's No Marriage’ (1996) 16 Quinnipiac Law Review 27Google Scholar, 28.

104 Sunstein (n 63) 2083–84.

105 For a recent summary of these critiques see Avishalom Westreich and Pinhas Shifman, Position Paper: A Civil Legal Framework for Marriage and Divorce in Israel (The Metzilah Center 2013), http://www.metzilah.org.il/publications_eng.

106 This is an undertaking that I have assumed in an independent project.

107 Fineman, Martha A, The Neutered Mother, The Sexual Family and Other Twentieth Century Tragedies (Routledge 1995) 161–66Google Scholar, 230–33.

108 See Robson, Ruthann and Valentine, SE, ‘Lov(h)ers: Lesbians as Intimate Partners and Lesbian Legal Theory’ (1990) 63 Temple Law Journal 511Google Scholar, 540; Ettelbrick, Paula L, ‘Since When is Marriage a Path to Liberation’ (Autumn 1989) OUT/LOOK: National Lesbian & Gay Quarterly 8–12Google Scholar. See in general Polikoff, Nancy D, Beyond (Straight and Gay) Marriage: Valuing All Families under the Law (Beacon Press 2008)Google Scholar.

109 Robson and Valentine, ibid.

110 See Sanger, Carol, ‘A Case for Civil Marriage’ (2006) 27 Cardozo Law Review 1311Google Scholar; Karlan, Pamela S, ‘Let's Call the Whole Thing Off: Can States Abolish the Institution of Marriage?’ (2010) 98 California Law Review 697Google Scholar.

111 See Fineman, Martha A, ‘Contract Marriage and Background Rules’ in Bix, Brian (ed), Analyzing Law: New Essays in Legal Theory (Oxford University Press 1998) 183Google Scholar.

112 See Sanger (n 110).

113 Thus, for example, before the enactment of the Spouses Property Relations Law in 1973, the Israeli Supreme Court developed a presumption of community property by which property relations between spouses were governed. The presumption of community property was originally developed based on contractual principles according to which spouses implicitly consented to jointly own property accumulated during their marriage: Blecher-Prigat and Shmueli (n 5) 280. Similarly, a support obligation between former intimate partners was developed based on contractual principles: X v Y (n 29).

114 See Sanger (n 110).

115 There is evidence to suggest, for example, that the state official rabbinical courts in Israel are more reluctant to adopt Halakhic (Jewish law) solutions to address the plight of women who encounter difficulties in obtaining a get (the Jewish divorce): Amihai Radzyner, ‘State-Rabbinical Jurisdiction vs. Private Jurisdiction – Advantages and Disadvantages’, a talk given at the Second Agunah Summit: State Solutions vs. Non-State Solutions, Bar Ilan University, Israel, 3 March 2014.

116 See Shifman, Pinhas, Who's Afraid of Civil Marriage? (Jerusalem Institute for Israeli Research 1994)Google Scholar (in Hebrew).

117 Sunstein (n 63) 2094–95; Cain (n 103) 38–40. Other scholars have disagreed. Thus, for example, Carlos Ball argues that even if constitutional fundamental rights are generally understood to be negative rights, the fundamental right to marry should be understood as an exception: Ball, Carlos A, ‘The Positive in the Fundamental Right to Marry: Same-Sex Marriage in the Aftermath of Lawrence v. Texas’ (2004) 88 Minnesota Law Review 1184Google Scholar, 1203–07. This debate is beyond the scope of this article, which focuses on the Israeli basic right to marry.

118 Waldron, Jeremy, ‘Liberal Rights: Two Sides of the Coin’ in Liberal Rights (Cambridge University Press 1993) 16Google Scholar, 24; Hirschl, Ran, ‘Israel's “Constitutional Revolution”: The Legal Interpretation of Entrenched Civil Liberties in an Emerging Neo-Liberal Economic Order’ (1998) 46 American Journal of Comparative Law 427CrossRefGoogle Scholar, 444–45.

119 See Waldron, Jeremy, ‘Rights in Conflict’ (1989) 99 Ethics 503CrossRefGoogle Scholar, 511.

120 See HCJ 10662/04 Hassan v National Insurance Institute (unpublished, 28 February 2012), para 28 and the references cited there.

121 Art 4 states: ‘Every person is entitled to the protection of his … dignity’: Hassan, ibid para 29.

122 HCJ 4293/01 New Family v Minister of Labor and Welfare (unpublished, 24 March 2009).

123 Meyer, David E, ‘A Privacy Right to Public Recognition of Family Relationships? The Cases of Marriage and Adoption’ (2006) 51 Villanova Law Review 891Google Scholar, 894–95. See the discussion concerning the purposes of the Adoption Law in CA 10280/01 Yaros-Hakak v Attorney General 2005 PD 59(5) 64.

124 I borrow the use of the term ‘traditional’ from Harel, Alon, ‘Revisionist Theories of Rights: An Unwelcome Defense’ (1998) 11 The Canadian Journal of Law & Jurisprudence 227CrossRefGoogle Scholar. Harel distinguishes between (a) rights theorists whom he calls ‘traditionalists’, who locate the reasons that justify the protection of rights within individualistic concerns, and (b) rights theorists whom he calls ‘revisionists’, who deny this traditional claim and argue that rights can be partially or exclusively grounded in societal interests.

125 Waldron, Jeremy, ‘Can Communal Goods Be Human Rights?’ in Waldron, Jeremy (ed), Liberal Rights: Collected Papers 339, 345 (Cambridge University Press 1993)Google Scholar (to argue that someone has a right to something is substantially different from saying that it is a good thing, or that it is important to have it). See also Harel, Alon, ‘Theories of Rights’ in Golding, Martin P and Edmundson, William (eds), Blackwell's Guide to the Philosophy of Law and Legal Theory (Wiley-Blackwell 2005) 191Google Scholar.

126 Raz, Joseph, ‘On the Nature of Rights’ (1984) 93 Mind 194CrossRefGoogle Scholar, 195.

127 Raz, ibid 196–97, 213. Needless to say, not every interest a person has should be protected by rights – that is, by the imposition of duties on others. Some interests are too trivial and do not justify the imposition of any burden on others. Furthermore, certain interests, while important, cannot be protected by the imposition of duties on others either because the duty would be disproportionately burdensome or impossible to impose in practice: Marmor, Andrei, ‘Do We Have a Right to Common Goods?’ (2001) 14 The Canadian Journal of Law & Jurisprudence 213CrossRefGoogle Scholar, 213.

128 This analysis is based on Waldron (n 125) 359; Harel (n 124).

129 Karst (n 66) 670.

130 Réaume, Denise, ‘Individuals, Groups, and Rights to Public Goods’ (1998) 38 University of Toronto Law Journal 1CrossRefGoogle Scholar, 10.

131 Waldron (n 125). There are rights theorists who do not accept this view. Andrei Marmor, for example, contends that the fact that an individual cannot enjoy a benefit on his or her own is not in itself sufficient to indicate that the item in question is not a benefit for that individual, thus the benefit to each individual is to be considered on its own. In his view there is no conceptual problem with recognising an individual right to such goods. Still, Marmor claims that there is a moral problem with recognising an individual's right to such goods, since the benefit to the individual depends on the involvement and or participation of others, and imposing a duty of involvement in such goods on others may be morally disturbing (imagine, for instance, a duty to marry rather than merely live together): see Marmor (n 127) 217–19. Alon Harel presents an entirely different approach, which he terms a Revisionist Theory of Rights. According to this theory individual rights may be grounded in societal interests and not only in the interests of individuals. Thus, the fact that the value of an institution of marriage cannot be captured in terms of its value to individuals, or that the individual interest in having an institution of marriage cannot morally impose a duty to promote such a benefit do not necessarily negate an individual's right to the maintenance of an official institution of marriage. In any event, neither the conceptual nor the moral argument against an individual's right to have an institution of marriage maintained by the state concern an individual's right to access such an institution, once established. Harel does not necessarily reject the traditional-individualistic approach. Rather, he demonstrates that many well established and widely recognised rights are rights to communal goods. Harel gives several examples, including the right to equal liberty, as the interest in equality makes a reference to others.

132 Sunstein (n 63) 2095.

133 Note that I refer to the interest of the individual child to be adopted rather than the interest of the individual adult to adopt as the ground for such a duty. Analytically, the interest of an individual adult in having official adoption – giving public recognition to a caretaking relationship between herself and a child – may also serve as grounds for imposing a duty on the state to maintain an official institution of adoption. Nonetheless, the significance of the child's interest seems stronger, so as to justify the imposition of such a duty. This issue is beyond the scope of this article.

134 See text accompanying nn 121–122.

135 HCJ 129/13 Axelrod v State of Israel (unpublished, 26 January 2014). Two additional appeals, HCJ 7127/11 Center for Jewish Pluralism v State of Israel (2011) and HCJ 1143/11 Jerusalem Institute of Justice v Knesset (2011), are mentioned in para 2 of the Court's decision.

136 Schuz, Rhona and Blecher-Prigat, Ayelet, ‘Dynamism and Schizophrenia’ in Sutherland, Elaine (ed), The Future of Child and Family Law: International Predictions (Cambridge University Press 2012) 175CrossRefGoogle Scholar, 176.

137 Cain (n 103) 28.