The Power of Understatement in Judicial Decisions
XXX Annuaire international de justice constitutionnelle 125 (2014)
14 Pages Posted: 7 Jul 2015 Last revised: 15 Jul 2017
Date Written: July 5, 2015
Israel's Jewish and democratic character has always posed a great challenge to those seeking to protect and advance secular life in Israel. During the founding period, the legislature enacted to require state authorities to register nationality and religion in the Population Registration database, grant only Jews and their relatives the right to immigrate to Israel and entrust the Orthodox establishment of the various religions with the exclusive jurisdiction to determine marriage and divorce matters. These enactments challenged secular Zionists to design creative ways to promote freedom of conscience and freedom from religion within the context of a Jewish and democratic state. The struggle over the meaning of status in the contexts of nationality, religion, and marriage is as old as the State itself. Ironically, Israel's systematic intermingling of church and state has led to its need to downplay the meaning of traditional symbols, such as status. The Court oftentimes declared that it was not recognizing the existence of new statuses while de facto the implications of its decisions time and again were recognition of the existence of new statuses in contexts of commonlaw marriage, civil marriage, nationality, and religion. In all these matters, the Court was creating secular statuses that could sidestep the monopoly of Jewish-Orthodox law. The power of these judicial decisions lies in the very fact that they understate their practical meaning.
This in turn made the struggle by same-sex couples for official recognition of their status as a union less difficult. They could follow the path of previous social activists that sought recognition for personal statuses that did not align with Jewish Orthodox law. In this way, same-sex couples' struggle for recognition would be easier, but the movement might lose its unique character as a challenge to traditional concepts of marriage. It would risk becoming part of the wider phenomenon of secular challenges against the hegemony of Orthodox Jewish law over status in Israel. Thus, while same-sex couples fight in other parts of the world for recognition equivalent to that of a heterosexual marriage, in Israel they had a well-worn path to follow to achieve marital status equal to other non-Orthodox Jewish couples sharing a commonlaw marriage, married civilly abroad, or married at the consulate. While all these unions fall short of full official formal marriage in Israel, they do come very close to achieving all the benefits and duties resulting from a "real" marriage. Same-sex couples suffer comparable problems of discrimination and enjoy similar solutions as the general secular community that is incapable or unwilling to accept the hegemony of the Orthodox establishment. In that sense, the Israeli story regarding recognition of same-sex marriage is unique in comparative terms.
Keywords: Same-sex marriage, Separation of church and state, Who is a Jew, freedom from religion, the power of understatement
Suggested Citation: Suggested Citation