Aharon Barak Does It Again, By Evelyn Gordon (Jerusalem Post)
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“Knesset could still legislate against gay marriage. Yet by ruling that existing law does not bar recognition of such marriages, the court has set a neat trap: Absent Knesset action, it will be free to declare gay marriages valid. But if the Knesset does act, the court will be free to declare the new law unconstitutional.”
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The High Court of Justice took a long step last month toward making Israel one of the few countries that recognize gay marriage – in defiance of the legislature and executive.
Ostensibly, the ruling involved a marginal issue: whether a gay couple who married legally in Canada should be registered as married in Israel’s Population Registry. Since the law explicitly states that Population Registry data are not proof of personal status, the court’s decision to register the men as married seemingly brings them no closer to legal recognition of their marriage. Yet a careful examination of the verdict reveals otherwise.
The ruling relied on the 1963 Funk-Schlesinger decision, which successive courts have repeatedly upheld. Funk-Schlesinger states that the Population Registry exists merely “to amass statistical material,” which “might be correct or might be incorrect, and nobody guarantees its correctness.” Therefore, the registry has no right to try to verify its data: If someone submits a marriage (or adoption or conversion) certificate from overseas, the registry must record it, regardless of whether it would actually be recognized in Israel.
This principle, incidentally, is absurd: Whoever heard of a statistical database that is not only not obliged, but is actually forbidden, to verify its data? Were other databases to adopt this principle, they would rightly be accused of malfeasance.
Yet even Funk-Schlesinger has limits: “A public official is not obliged… to be party to an act of deceit,” it said. Therefore, clerks can refuse to register clearly false data – for instance, a bearded adult who declares himself a five-year-old child.
Thus even under Funk-Schlesinger, the Population Registry would seem justified in refusing to register a gay marriage: The couple clearly consists of two men, and Israel does not allow homosexual marriage.
But six justices, headed by former chief justice Aharon Barak, disagreed. The relevant question, Barak said, is not whether gay marriage is legal in Israel, but whether Israel recognizes gay marriages conducted overseas. And the answer, he declared, “is not at all simple.” As the lone dissenting justice, Elyakim Rubinstein, correctly noted, the answer, while indeed not simple in the original Funk-Schlesinger case, would seem straightforward in this one.
FUNK-SCHLESINGER concerned an overseas civil marriage between a Jewish man and a non-Jewish woman. Since most Western countries recognize civil marriages conducted abroad, Rubinstein argued, it was plausible that Israel might do the same.
In contrast, he noted, only six countries worldwide currently permit gay marriage, and most countries, even Western ones, also refuse to recognize gay marriages performed overseas. Thus absent a Knesset directive to the contrary, the Population Registry was far more justified in assuming that Israel would side with the vast majority of countries that do not recognize such marriages than it would have been in assuming that Israel would side with the tiny minority that do.
Barak, however, viewed things differently. The courts, he wrote, have already granted gay couples numerous other rights that the Knesset never legislated, including pension rights, inheritance rights, the right to use family courts, and more. Gay couples are thus already a recognized “social unit” with “certain legal consequences,” so how could the registry know that such couples might not also constitute a “family unit”? In other words, because the court has repeatedly circumvented the Knesset to create rights for gay couples, the registry should realize that the court might do so again – and therefore, it should have ignored both the decades-long status quo and the fact that the Knesset has not yet recognized such marriages.
But the ruling gets even worse – because this was not, as Barak implied, a case of a lowly registry clerk making legal judgments beyond his purview; the registry was backed by the government’s highest legal authority, Attorney-General Menahem Mazuz. And if the attorney-general is not qualified to make legal decisions for the government, who is?
Mazuz’s position was simple: Whether to recognize gay marriages is properly the Knesset’s decision, and unless the Knesset does so, the Population Registry should not register such marriages on its own initiative.
Barak paid lip-service agreement, saying that indeed the Knesset should decide. However, he quickly rendered this agreement meaningless: Since, he declared, the Knesset has not explicitly banned recognition of such marriages, the Population Registry cannot refuse to register them – even though Israel never decided to recognize such marriages, even though most countries do not do so, and even though the government’s highest legal authority ruled otherwise.
The court thus effectively replaced a decades-long presumption against gay marriages with a presumption in their favor: It declared that the registry must presume such marriages to be legal unless explicitly told otherwise by the Knesset.
It also effectively ruled that existing law does not bar recognition of gay marriages: Otherwise, the registry would not be justified in presuming them legal. And finally – though it denied expressing an opinion on this subject – it clearly implied that it considers such marriages valid: Otherwise, what grounds could it have for overruling the government’s highest legal authority in order to mandate their registration? From here, the distance to outright court recognition of gay marriage is small – particularly given its habit, as noted above, of viewing court-created rights as self-propagating.
Technically, the Knesset could still legislate against gay marriage. Yet by ruling that existing law does not bar recognition of such marriages, the court has set a neat trap: Absent Knesset action, it will be free to declare gay marriages valid. But if the Knesset does act, the court will be free to declare the new law unconstitutional – whereas pre-1992 laws are protected by a grandfather clause in the Basic Law: Human Dignity and Freedom. And since the court has already ruled that this Basic Law includes rights to equality and to marry whomever one pleases – neither of which actually appears in the law’s text – it presumably would declare such a law unconstitutional.
The court has thus put Israel on a fast track to joining that tiny minority of states that recognize gay marriage. And it has left the legislature and executive little room to intervene.