A Potential Lesson from the Israeli Experience for the American Same-Sex Marriage Debate

Abstract

In the past decade American marriage law has been the arena for a major controversy regarding same-sex marriage. Typically, liberals tend to support same-sex marriage, while conservatives oppose it. The liberal-conservative dispute concerning Same Sex Marriage is usually related to a broader debate on the legitimacy of limiting the possibilities for marrying: liberals present marriage as a private arrangement between the partners, and they therefore oppose restricting the right to marry The opponents of single-sex marriage, in contrast, legitimize legal limits to the right to be married by presenting marriage as a public institution.

Based on the unique experience amassed in Israel on this question, I seek to reveal the potential consequences of the struggle between liberals and conservatives regarding limitations of the right to marriage for an additional liberal-conservative confrontation concerning the uniqueness of legal marriages, and the difference between them and alternative family types.

The conservative position limiting entry to marriage won a decisive victory in Israel. Accordingly, partners of the same sex, like partners from different religious communities, are not allowed to formally marry. Generally speaking, the right to marry is subject to a broad range of civil and religious restrictions. Ironically, the strict limitations on the right to marry were a trigger for the development of the institution of cohabitation as a substitute for formal marriage. Accordingly, the array of the rights and obligations of cohabitants is approaching that of married partners, and at times even exceeds the latter. I will argue for the existence of a similar dynamic in the United States, where the distress of same-sex partners serves as the basis for notions and proposals, both in the academic realm and in the more general public realm, for strengthening the institution of cohabitation, the weakening of the institution of marriage, and at times even the abrogation of marriage as a legal institution.

On the background of this developing dynamic, and taking into account the aggregate Israeli experience, I will advance three arguments:

First, I will present a conservative critique of the conservative position against same-sex partners. I will argue that, in the final analysis, the conservative camp's relative success in negating the possibility of same-sex marriages harms this camp's broader agenda for the preference of legal marriages.

Second, I will present a liberal critique of the liberal camp. My proposition is that, despite the essentially liberal motivation for weakening legal marriages in order to decrease the gap between them and cohabitation, in many instances this activity harms the liberal values of freedom of choice and autonomy in the name of which they act.

Finally, I will argue on behalf of democratic compromises such as civil union in the United States and spousal registry in Israel.